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: 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.