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.