BILL ANALYSIS 1 ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Darrell Steinberg, Chair | | 2007-2008 Regular Session | | | ----------------------------------------------------------------- BILL NO: AB 815 HEARING DATE: June 25, 2008 AUTHOR: Berryhill URGENCY: No VERSION: June 18, 2008 CONSULTANT: Bill Craven DUAL REFERRAL: No 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. In its only substantive section, the bill states that California, as a state, has fully occupied the fields of hunting and fishing as a matter of constitutional and statutory law, and that all local ordinances and regulations are subject to what amounts to the state preemption of this area of the law. The bill also requires the Fish and Game Commission or department to consider the fishing and hunting rights of the public that are guaranteed by the state constitution in developing regulations that may affect the taking of fish and game on navigable waters of the state. Finally, the bill would not affect the rights of private landowners to restrict hunting and fishing on their lands. ARGUMENTS IN SUPPORT The California Fish and Game Warden's Association states that the bill will result in improved enforcement of the state's fish and game laws because the bill will result in a comprehensive and uniform approach that will be widely known to hunters and fishermen. This organization also contends that local governments will benefit from the bill since many cities and counties have no legal background or biological expertise on these matters. The California Outdoor Heritage Alliance, as sponsor, strongly believes that the bill simply codifies existing law. It also believes that the preemption that would occur if this bill becomes law will not affect local ordinances or regulations that either indirectly affect hunting or fishing, or that are determined to be ordinances grounded in a local government's legitimate use of its police powers to protect the public health or safety. It suggests that local governments will be able to enact ordinances such as those regulating firearm discharges that are not directly related to hunting. In another example offered by this group of a lawful exercise of local authority, it pointed to an ordinance that prevented "chumming" (cutting up fish for use as bait) in a closed waterbody where the public had access. Other support from 2007 is listed below. ARGUMENTS IN OPPOSITION None were received to current version of the bill. COMMENTS Previous Committee Actions: This bill was originally heard in this committee on 7/11/07. Since that hearing, this bill was amended by the author to delete the prohibition on local governments adopting ordinances or regulations on hunting or fishing. The amendments further deleted the judicial tests that would have applied when a court is considering the validity of such an ordinance. Considerable discussion on these provisions occurred at the previous hearing on this bill before the Committee in 2007. The opposition to the 2007 version of the bill was primarily focused on the issue of whether the bill usurped local control. One letter addressed concerns about trapping. This bill is limited to hunting and fishing and does not affect trapping. The organizations that were opposed in 2007 are listed below. 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. Technical amendment. The suggested amendment deletes a finding that is no longer relevant to the current version of the bill SUGGESTED AMENDMENTS AMENDMENT 1 Page 3, lines 11-15. Delete "It is also" and lines 12-15. SUPPORT California Waterfowl Association California Fish and Game Wardens' Association California Trout California State Pipes Trade Council Butte Sink Waterfowl Association, Inc. California Council of Land Trusts California Deer Association California Houndsmen for Conservation California Outdoor Heritage Alliance California Rice Commission California Rifle and Pistol Association Federation of Fly Fishers, Northern California Nevada Council Golden Gate Fishermen's Association Lower Sherman Island Duck Hunters Association Mountain Meadows Conservancy Mule Deer Foundation National Rifle Association Nevada County Sportsmen Inc. Outdoor Sportsmen Coalition of CA Recreational Fishing Alliance Safari Club International San Diego County Wildlife Federation Suisun Resource Conservation District California Sportsmen's Lobby US Sportsmen's Alliance Quail Unlimited, Orange and Santa Clarita Counties Z-Tech Sales Inc. OPPOSITION Animal Protection Institute Animal Switchboard California Animal Association California Federation for Animal Legislation Last Chance for Animals League of Humane Voters-CA Chapter People for the Ethical Treatment of Animals The Humane Society of the US Urban Wildlands Group, Inc.