BILL ANALYSIS 1 ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Darrell Steinberg, Chair | | 2007-2008 Regular Session | | | ----------------------------------------------------------------- BILL NO: AB 815 HEARING DATE: July 10, 2007 AUTHOR: Berryhill URGENCY: No VERSION: June 27, 2007 CONSULTANT: Bill Craven FISCAL: Yes SUBJECT: Hunting or fishing: local regulation. BACKGROUND AND EXISTING LAW The state constitution authorizes the Legislature to delegate to the Fish and Game Commission the power to protect and propagate fish and game. The Legislature delegated this responsibility to the Commission which must act in accordance with state fish and game laws. The constitution also guarantees the right to fish on public lands and waters of the state and prohibits laws to impede access to these lands for the purpose of fishing. The constitution confers on local governments the authority to make and enforce, within their jurisdictions, ordinances to provide police, sanitary, and other public welfare protections that do not conflict with general law. PROPOSED LAW This bill makes several findings regarding the Legislature's jurisdiction over fish and game matters that cite case law, Attorney General opinions, and the state constitution. This bill would explicitly prohibit a city or county from adopting an ordinance or regulation that affects the taking of fish and game within its jurisdiction unless the ordinance or regulation is within the police powers of the local government, does not conflict with general laws, has as its principal purpose the protection of public health and safety, and has only an incidental effect upon hunting and fishing. This bill would also allow, but not require, a review of the validity of any local ordinance or regulation that affects the hunting and fishing to be undertaken in light of the following factors: the nature of the geographic area affected by the ordinance; the method, manner, and season in which the taking of fish and game occurs; the effect of any take on fish and game; existing state and federal hunting and fishing regulations; the degree of public access to the area; and the effective range of weapons used to take fish or game. Local ordinances would be prohibited if they affect lands owned or managed by the state or federal government, private lands outside the geographical limits of a city where hunting and fishing may safely occur; and private lands inside the geographical limits of a city where limited hunting and fishing may safely occur, taking into account any restrictions on equipment that are intended to protect the public; and areas where hunting and fishing may occur without endangering public health and safety. The bill also directs that the Fish and Game Commission consider the public's access to navigable waters and the right to hunt and fish when promulgating regulations and the bill designates the commission as the only entity in the state authorized to adopt or promulgate regulations regarding hunting and fishing. Private property owners are entitled to restrict hunting and fishing on their property. ARGUMENTS IN SUPPORT According to the author, this bill would clarify that the state has largely preempted the field of fishing and hunting consistent with the state constitution, case law, existing statutes, and opinions of the Attorney General. The bill would also define the limits of local ordinances and provide guidance to assess the validity of those ordinances. Supporters of this bill, largely hunting and fishing organizations, believe that this bill simply codifies the existing constitutional and decisional law, while also providing the encouragement that many private landowners need to continue their efforts to restore habitat and wetlands and provide hunting and fishing access without the difficulty of dealing with a patchwork quilt of local government ordinances. ARGUMENTS IN OPPOSITION Opponents contend that the bill usurps local control by altering the balance of shared state-local power. The central opposition argument is that while the state has the authority to establish fundamental wildlife policies, including hunting and fishing regulations, that are consistent across the state, that local jurisdictions have long had the flexibility to adapt those policies and regulations to address local wildlife issues. Many in the opposition prefer what they call the existing state-local "partnership" that they believe has created effective policies for long-term wildlife management. The example used by some of the opposition are the alleged activities of nuisance wildlife control operators who use Conibear traps and snares to capture animals that come into conflict with people. These devices, which are non-selective, may capture non-target animals including household pets. Local ordinances have been enacted that limit or ban the use of traps within their jurisdictions. The opposition is concerned about the proposed bill's effect on such ordinances, should it become law. Author response . While the author is aware of a small number of local ordinances, he believes that they would be validated either under the provision in the bill that prohibits hunting within the 150 yard "safety distance" codified in Section 3004 of the Fish and Game Code, or pursuant to the provisions that authorize local ordinances necessary to protect public health and safety. Examples of such ordinances are those that prohibit hunting within certain distances to streets or roadways. The author also suggests that the severability clause would allow those portions of local ordinances that do not conflict with this bill to continue in full force and effect should this bill become effective. The author and sponsors believe that the proper forum for considering additional limitations on hunting and fishing is the Fish and Game Commission. The Commission has adopted several regulations that either limit the types of weaponry or the allowable take in various jurisdictions. COMMENTS Opposition Concerns . Local ordinances prohibiting Conibear traps are simply not regulations of hunting and fishing. The opposition also points to a provision in existing law by which the Commission notifies counties of proposed antlerless deer hunts and, upon receipt of that notice, counties may opt out of an antlerless deer hunt authorized by the commission. This statute, Section 458 of the Fish and Game Code, does not stand for the proposition that counties can regulate hunting. In fact, by its own terms, that statute affirms that hunting regulations are made at the state level. Legal History In Matter of Application of Cencinio (1916) 31 Cal.App.238, 244, the court held that the effect of Article IV, Section 25 1/2 of the Constitution was to remove whatever powers cities and counties had exerted over fish and game matters and delegate these powers exclusively to the Legislature. This interpretation was also upheld by the California Supreme Court in In re Makings (1927) 200 Cal. 474, 477-478. In the case of People v. Mueller (1970) 8 Cal.App.3d 949, the court found that the state does not preclude local legislation that is enacted for public safety when that local legislation only incidentally affects the preempted area. The Attorney General, in a 1987 opinion ((No. 86-607), points to People v. Mueller to support his opinion that a county may adopt an ordinance dealing with hunting so long as its principal purpose is to protect public health and safety and where the ordinance only incidentally affects the field of hunting. Attorney General opinions are considered persuasive authority but are not binding on courts. The only opposing authority of which staff is aware is an unpublished opinion that has no precedential value. In a case from the city of Burbank, the Court of Appeals concluded that a ban on bow and arrow shooting was not preempted by California law and was for public safety purposes, a rationale that would be allowable pursuant to this bill, should it become law. Amendments. Staff suggests a series of technical amendments prior to proposing one substantive amendment. 1. The substantive provisions of the bill, beginning on page 3 at line 12, should be placed in a new Section 2 that follows the findings and declarations. 2. Page 3, line 21, change "or" to "and." 3. Page 4, line 7, delete the word "proposed." 4. Page 4, line 19. Delete "shall still comply" and replace with "complies." 5. Page 5, line 13. Delete "at the time." 6. The provisions of the bill that contain the factual factors to be considered in reviewing the validity of a local ordinance should follow the provisions that contain the legitimate considerations that may justify such ordinances. This can be accomplished by switching the order of subdivisions (e) and (f). 7. Subdivision (i) should be merged into the findings on page 3, line 11. SUGGESTED AMENDMENTS 1. Some opponents contend that this bill could limit otherwise lawful ordinances that restrict or ban hunting and fishing while restoration or renovation activities are occurring at publicly-owned facilities. As written, the bill restricts local ordinances to situations that are specifically limited to protect public health and safety. It is possible, that as drafted, a local ordinance could prohibit fishing at a facility owned by a local government during a period of habitat restoration. To alleviate this concern, the bill should be amended on page 3, line 26 to authorize local ordinances that protect "public health, safety and public property ." SUPPORT Audubon California Badger Johns Broadway Bait Rod and Gun Butte Sink Waterfowl Association, Inc. California Council of Land Trusts California Deer Association California Rice Commission California Rifle and Pistol Association California State Pipe Trades Council California Trout California Waterfowl Association Cliffs Marina Delta Bait and Tackle Elkhorn Bait and Tackle Great Outdoors Lower Sherman Island Duck Hunters Association Mountain Meadows Conservancy Mule Deer Foundation National Rifle Association of America Northern California Council, Federation of Fly Fishers Recreational Fishing Alliance Romeo's Bait and Tackle Sportsmen's Council of Central California Suisun Resource Conservation District 16 Individuals OPPOSITION Animal Protection Institute California Animal Association California Federation for Animal Legislation The Humane Society 1 Individual