BILL ANALYSIS
AB 1254
Page 1
Date of Hearing: January 12, 2010
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
AB 1254 (Berryhill) - As Amended: January 4, 2009
SUBJECT : Fish and Game Commission; Hunting
SUMMARY : Makes several changes to the Fish and Game Code
related to expanding hunting opportunities on private and public
lands, authorizes hunting derbies, and modifies requirements for
annual Fish and Game Commission (FGC) meetings. Specifically,
this bill :
1)Repeals an existing statute making it unlawful to hunt on
private property that is posted with "PRIVATE PROPERTY NO
HUNTING" signs in specified sizes and locations.
2)Modifies existing law, which currently makes it unlawful to
enter private property posted with no trespassing signs for
the purpose of hunting, including lands temporarily inundated
by flood waters, to apply only if the waters are nonnavigable.
3)Authorizes the Department of Fish and Game (DFG) to issue a
permit to a person or nonprofit organization authorizing the
offering of a prize or inducement for the taking of a game
species. Permits would be authorized if DFG determines there
would be no detriment to the resource. Prohibits a prize or
inducement for the taking of a game bird or mammal from being
based on the total number of birds or mammals taken.
Authorizes DFG to waive the permit fee if the purpose of the
contest, tournament or derby is to introduce young people to
or educate them about hunting.
4)Modifies existing law, which currently requires the FGC to
encourage multiple recreational uses of state wildlife
management areas, to require that the FGC particularly
encourage hunting and fishing uses.
5)Modifies the Wildlife Conservation Board's (WCB) authority to
authorize acquisition of easements on private land for the
purpose of providing fishing and hunting opportunities for the
public.
6)Authorizes the FGC to hold no fewer than 8 regular meetings
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per year if it has adequate funding for travel, including for
DFG travel, with no more than 3 regular meetings to be held in
Sacramento.
EXISTING LAW :
1)Makes it unlawful to enter any lands, including lands
temporarily inundated by waters, where signs forbidding
trespass are displayed, for the purpose of discharging any
firearm or taking or destroying any mammal or bird without
written permission from the landowner.
2)Protects, under Article 10, Section 4 of the California
Constitution, the right of public access to navigable waters
of the State.
3)Makes it unlawful to take any mammal or bird or to discharge
any firearm on lands posted with "PRIVATE PROPERTY NO HUNTING"
signs meeting certain specifications.
4)Prohibits, subject to certain exceptions, the offering of any
prize or other inducement as a reward for the taking of any
game birds, mammals, fish, reptiles or amphibians in an
individual contest, tournament or derby. Authorizes DFG to
issue a permit to any person authorizing the offering of a
prize or other inducement as a reward for the taking of a game
fish if DFG determines there would be no detriment to the
resource. Permits are subject to regulations adopted by the
FGC. Authorizes DFG to waive the permit fee if the contest,
tournament or derby is for persons under 16 years of age and
the primary purpose is to introduce young anglers to or to
educate them about fishing. Exempts contests, tournaments or
derbies for the taking of game birds and mammals from these
prohibitions and requirements if the total value of all the
prizes or other inducements is less than $500.
5)States that multiple recreational use of wildlife management
areas is desirable and shall be encouraged by the FGC.
6)Authorizes WCB to authorize acquisition of rights in real
property as may be necessary to carry out the purposes of
wildlife conservation, including by means of easements, gifts,
purchases, leases and transfers, subject to restrictions on
the use of eminent domain. Specifically authorizes WCB to
authorize the acquisition of lands or rights in land by DFG as
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may be necessary for the purpose of furnishing public access
to lands or waters open to the public for fishing, hunting and
shooting.
7)Requires the FGC to hold no fewer than 10 regular meetings per
calendar year, no more than 2 of which may be held in
Sacramento.
FISCAL EFFECT : Unknown.
COMMENTS :
Purpose : The California Outdoor Heritage Alliance is sponsoring
this bill to: 1) allow the FGC to adjust its meeting schedule to
address funding shortfalls, 2) authorize DFG to issue hunting
derby permits to nonprofit organizations for fundraising
purposes, and 3) clarify Fish and Game Code Section 2016 as it
relates to nonnavigable waters. With regard to the hunting
derby provision, COHA states this bill merely applies the
current permit process for fishing derbies to hunting derbies,
providing an additional fundraising tool to nonprofits for
wildlife conservation. With regard to the amendment to Section
2016, they note a former Attorney General opinion concluded that
section was unconstitutional as applied to navigable waters.
Issues : The provisions in this bill raise several legal and
policy issues as follows:
1)Hunting derbies . The provision authorizing the offering of a
prize, award or other inducement for the taking of game birds
or mammals was contained in an omnibus fish and game code
committee bill proposed last year. However, that provision
was removed from the bill on the Senate floor in response to
opposition from animal rights groups. Proponents of this bill
assert this provision provides parity with existing law which
authorizes prizes for the taking of game fish. They note that
such prizes can be a fundraising tool for nonprofit hunting
advocacy groups to raise funds for conservation efforts,
though the bill does not require that the prize money be put
to conservation purposes. The offering of an inducement would
be subject to a permit issued by DFG, which would be
authorized to issue the permit only if it determined there
would be no detriment to the species. The taking would also
be required to comply with all existing laws for take of game
species, including, for example, hunting license and tag
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requirements, and regulations pertaining to seasons and bag
limits.
The opposition, which consists primarily of animal rights
organizations, asserts this provision encourages excessive and
illegal take of game animals by providing prize money for the
killing of wildlife. They note that while fishing derbies may
be catch and release, with hunting there is no release. The
opposition also notes that contests offering total prizes of
less than $500 for the taking of game species are already
exempt under the existing law. Opponents assert that the
offering of an award for the taking of birds or mammals
encourages disrespect and excessive killing of wildlife,
particularly those species for which there is currently no bag
limit or seasons, and that hunting contests can also pose
public safety risks. The Humane Society also asserts in
opposition that instead of promoting hunting, competitive
hunting contests serve to degrade hunting in the eyes of the
public.
It should be noted that in the past DFG has indicated disfavor
for provisions that would put a price on the killing of
wildlife, due in part to concern that the offering of such
awards encourages illegal take. In addition, due to the
current lack of game wardens to monitor and enforce hunting
laws in the field, hunting contests that potentially encourage
take in violation of the law by some unscrupulous hunters
could add further burdens to an already overburdened law
enforcement work force. The policy question before the
committee is whether, in light of these considerations, the
offering of prizes, rewards or other inducements to encourage
the taking of wildlife should be authorized, as are currently
authorized for fishing.
2)Trespass Requirements : This bill repeals Section 2017 which
prohibits hunting on lands posted with "PRIVATE PROPERTY NO
HUNTING" signs of specified size and wording. An argument
could be made that this section is unnecessary, since Fish and
Game Code Section 2016 also prohibits trespass for the purpose
of hunting on lands posted with no trespassing signs without
prior written permission from the owner. However, this bill
would also narrow the application of Section 2016, which
currently includes lands temporarily inundated by flood
waters, to apply only if the waters are nonnavigable. The
proponents assert a constitutional right to access all
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navigable waters, even waters temporarily inundating private
property, for the purpose of hunting. A 1985 California
Attorney General opinion opined that this section of the law
was unconstitutional as applied to navigable waters. 68 Ops.
Atty.Gen. 268. Attorney General opinions are persuasive but
not binding on courts. Article 10, Section 4 of the
California Constitution protects public access to "navigable
waters" for public purposes, including for navigation,
commerce and fishing. Courts have held that hunting is a
privilege incidental to the public right of navigation.
Forestier v. Johnson (1912) 164 Cal. 24. The definition of
"navigable waters" and the related public trust doctrine have
been the subject of numerous court decisions. The public
trust doctrine has been extended to inland water ways,
including lakes, streams and tributaries that affect navigable
waters. The public trust and right of access to navigable
waters for public trust purposes applies whether or not the
waters are over private lands. People v. Sweetser (1977) 72
Cal.App.3d 278. With National Audubon Society v. Superior
Court (1983) 33 Cal.3d. 419 and subsequent cases, the public
trust doctrine has also been expanded beyond its traditional
common law emphasis on commerce, navigation and fisheries, to
encompass changing public needs, including concern for the
environment, expanding recreational uses, and aesthetic
preservation. The courts have also held that states can
regulate public access to navigable waters, and that some
public trust uses can be limited by the state in order to
preserve and promote other public trust uses. Personal
Watercraft Coalition v. Board of Supervisors (2002) 100
Cal.App.4th 129.
The definition of "navigable waters" has also been an evolving
concept. Waters have been held to be navigable if they are
capable of being navigated by oar or small craft. Whether
waters are navigable is primarily a question of fact. A
waterway does not have to be navigable year round to be
considered navigable water, and navigability may be found even
if the water overlies the land only on a seasonal basis. For
example, waters only navigable for 9 months of the year have
been found to meet the definition of "navigable." However,
courts have also held that though a waterway need not be
floatable year-round for it to be navigable, it must be so for
more than a few days in the rainy season and for more than
infrequent or brief periods of high or flood waters.
Hitchings v. Del Rio Woods Recreation & Park District (1976)
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55 Cal.App. 3d 560. A 1975 California Attorney General
Opinion opined seasonal floodwaters in the Butte Sink were
navigable waters subject to public easement. The opinion
noted that while a waterway need not be continuously navigable
in fact throughout the year, the seasons of navigation must be
regular and predictable to be depended on as navigable waters
to support public access. As Section 2016 does not define
navigable waters or specify for what period of time the lands
must be temporarily inundated, and since navigability will
still be a factual determination, adding the word
"nonnavigable" to the statute may not necessarily provide
greater clarity to hunters who wish to access private lands
when temporarily flooded. In addition to the legal issues,
the policy question for the committee is whether, in the case
of private lands temporarily inundated with flood waters, the
rights of private landowners to prohibit access for purposes
of hunting should prevail over hunters' claims of right of
access to those waters for hunting purposes.
3)WCB : This bill modifies a section of law that already
authorizes WCB to approve the acquisition of lands or rights
in land as may be necessary for the purpose of providing
public access to lands or waters open to the public for
fishing and hunting. The amendment proposed by this bill
explicitly authorizes acquisition of easements on private land
for the purpose of providing hunting and fishing opportunities
for the public. However, the existing law already authorizes
WCB to approve acquisition of easements for these purposes as
well as for broader wildlife conservation purposes. Fish and
Game Code Section 1348 authorizes WCB to authorize acquisition
of rights in real property as may be necessary to carry out
the purposes of wildlife conservation, expressly including
easements, gifts, purchases, leases and transfers. It is
therefore unclear why the change proposed in this bill is
needed. It is also unclear why the phrase "for the purpose of
providing fishing and hunting opportunities for the public" is
being added, since the language in Section 1354 already states
"for the purpose of furnishing public access to lands or
waters open to the public for fishing, hunting and shooting."
The amendments proposed by this bill are therefore at best
redundant, but at worst could create ambiguity as to the
meaning of the law. There is also a possibility that the
wording could be interpreted to narrow WCB's authority to
acquiring easements only for the purposes of public hunting
and fishing, whereas the broader purpose of the wildlife
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conservation law, as expressed in Fish and Game Code Section
1350, is to "effectuate a coordinated and balanced program
resulting in the maximum restoration of wildlife in the state
and in the maximum recreational advantages to the people of
the state." For these reasons, should the committee decide to
approve this bill, staff recommends that the amendments to
this section be deleted.
4)Wildlife Management Areas : Current law recognizes the
desirability of multiple uses of state wildlife management
areas, and requires the FGC to encourage such use. This bill
would require that the FGC particularly encourage the
traditional uses of hunting and fishing. Proponents support
this language because they hope it will lead to an increase in
the number of places where Californians can go to hunt and
fish. Hunters and fishers pay licensing fees which are used
in part to support state wildlife management areas. The
current law encourages multiple uses, which include hunting
and fishing and other non-consumptive uses. While it is
unclear whether this amendment has any real substantive
effect, the policy question for the committee is whether this
change should be approved as proposed to require the FGC to
encourage traditional hunting and fishing uses over other
non-consumptive uses of state wildlife management areas, such
as bird watching, hiking, nature study, youth education,
scientific research and habitat conservation.
REGISTERED SUPPORT / OPPOSITION :
Support
California Outdoor Heritage Alliance (sponsor)
California Sportsman's Lobby
Outdoor Sportsmen's Coalition of California
Opposition
Paw Pac
Humane Society
Action for Animals
California Federation for Animal Legislation
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096
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