BILL ANALYSIS 1
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Darrell Steinberg, Chair |
| 2007-2008 Regular Session |
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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