BILL ANALYSIS Ó
SB 769
Page 1
Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
SB 769 (Fuller) - As Amended: April 25, 2011
SENATE VOTE : 37-0
SUBJECT : Mountain Lions: Possession of carcass for museum
display and education
SUMMARY : Authorizes the possession of a legally obtained
mountain lion carcass for display for a scientific or
educational purpose at a nonprofit or government owned museum or
educational institution. Specifically, this bill :
1)Exempts from the prohibition against possession of any
mountain lion or mountain lion part, the possession of a
mountain lion carcass or part thereof if:
a) The carcass or part is prepared or being prepared
for display or exhibition for a bonafide scientific or
education purpose, at a nonprofit or government-owned
museum generally open to the public or at an educational
institution, including a public or private postsecondary
institution.
b) The mountain lion was taken in California consistent
with law and was provided to the museum or educational
institution by the Department of Fish and Game (DFG).
2)Contains an urgency clause providing that it is necessary for
this bill to take effect immediately in order to allow museums
and other educational or scientific institutions to display or
exhibit mountain lion carcasses as soon as possible.
EXISTING LAW :
1)Makes it unlawful to take, injure, possess, transport, import
or sell any mountain lion or any part or product thereof, with
limited exceptions. (Proposition 117, 1990 Statewide
Initiative).
2)Requires a 4/5ths vote of the Legislature to amend Proposition
117.
SB 769
Page 2
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : This bill provides a narrow exemption to the 1990
Mountain Lion Initiative (Proposition 117) that will allow for
the preparation and display of preserved mountain lion carcasses
that have otherwise been legally obtained in California. This
bill is necessary due to a new legal analysis which has prompted
DFG to conclude that it does not have the authority to issue
permits for the possession of mountain lion carcasses for these
purposes, which it had previously been doing. Santa Rosa Junior
College indicates in support of this bill that the students and
faculty at the college have benefited in the past from the
ability to obtain mountain lion specimens from DFG, enabling the
students to gain knowledge of comparative anatomy, skeletal
morphology and the evolution of felines. The specimens the
students preserve and prepare for display also help to raise
public awareness. All of the specimens are mountain lions which
were taken legally and obtained from DFG as a result of, for
example, accidental road kills or pursuant to existing
depredation laws.
The author cites another example in her district where the
Maturanga Museum in the town of Ridgecrest sought to display the
carcass of a mountain lion that was killed by a car as it
crossed a local highway. The mission of the Maturango Museum is
to preserve, interpret, and develop an appreciation of the arts,
natural history and cultural history in the Northern Mojave
Desert through research and education. Many preserved animals
on display are native to the Mojave Desert region. Preserving
animals on display serves to educate people who live in and
visit the area of the wealth of native animal life and their
place in the larger ecosystem. Although DFG determined that the
lion was not illegally taken, they concluded they had no legal
authority to release the carcass to the museum for display.
The author notes that this bill provides a very narrow exemption
to the law to allow these and similar institutions to prepare
and display preserved mountain lions that are otherwise legally
taken within California. These changes are consistent with the
intent of the mountain lion initiative approved by the voters in
1990 and will not impact the existing ban on hunting or
otherwise taking mountain lions without appropriate authority.
Suggested Amendment : The California Association of Museums
SB 769
Page 3
supports this bill if amended to clarify that mountain lion
carcasses may also be kept and stored by museums for scientific
and research purposes. Specifically, the Association
recommends that the words "collections storage" be inserted on
page 2, line 21, after "display,". Committee staff recommends
that this amendment be adopted.
Potential Additional Amendment : Another issue has recently been
raised that may warrant a further amendment to Proposition 117.
The issue concerns the legal authority of DFG to authorize
scientific research on live mountain lions. Currently and over
the past twenty years or so since Proposition 117 was enacted,
scientists at the University of California, the Department of
Fish and Game, the U.S. Fish and Wildlife Service, and others,
have been conducting several bonafide scientific research and
investigative studies on mountain lions that in some cases
involve the tracking, capture, handling, tagging and collaring
of live mountain lions. Some of these studies are being done
specifically for the purpose of benefitting mountain lions by
learning more about their migratory patterns to help inform
decisions about wildlife corridors and habitat conservation
plans. One study being conducted in the Eastern Sierras is
focused on the interaction between mountain lions and bighorn
sheep, another protected species. In the past DFG has issued
scientific research permits for these scientific study purposes.
However, DFG has recently concluded that it may not have the
legal authority under Proposition 117 to continue to do so.
Proposition 117 is silent on the issue of handling of mountain
lions for scientific research purposes, but does specifically
mention other exemptions. A general rule of statutory
construction is that where a statute explicitly enumerates
certain exceptions to a general prohibition, additional
exceptions are not to be implied in the absence of a contrary
legislative intent.
Whether scientific research on live mountain lions may legally
be authorized under Proposition 117, and how a court would rule
on that question, is not entirely clear. The ballot language of
Proposition 117 does not expressly indicate any intent to
preclude scientific research and the failure to mention it may
have been an oversight on the part of the drafters. There is
also another Fish and Game Code provision, Section 1001, which
provides that "Nothing in this code or any other law shall
prohibit the department from taking, for scientific,
propagation, public health or safety, prevention or relief of
SB 769
Page 4
suffering, or law enforcement purposes, fish, amphibians,
reptiles, mammals, birds, and the nests and eggs thereof, or any
other form of plant or animal life." This section predated the
passage of Proposition 117. Whether Proposition 117 overrides
Section 1001, or whether Section 1001 might provide independent
authority for DFG to authorize handling of live mountain lions
for bonafide scientific purposes, is unclear. DFG, biologists
working on mountain lion research, and other stakeholders are
further analyzing this issue to determine whether an amendment
to the Proposition is needed and whether agreement can be
reached on narrowly drafted language to clarify this issue as a
possible amendment to SB 769. However, that analysis has not
been completed as of the time of this hearing. After further
research and discussions, the author may wish to consider an
amendment to this bill to provide a narrow exemption to
Proposition 117 for bonafide scientific research on live
mountain lions that does not involve the intentional killing of
mountain lions. If such an amendment is taken after this bill
leaves the committee, the committee may wish to reserve the
right to request this bill be brought back to committee for a
subsequent hearing, if necessary.
REGISTERED SUPPORT / OPPOSITION :
Support
Santa Rosa Junior College
California Association of Museums (if amended)
Opposition
None on file.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096