BILL ANALYSIS Ó
AB 1097
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Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 1097 (Nestande) - As Amended: March 14, 2013
SUBJECT : Department of Fish and Wildlife Primary Purpose;
Mirage Trail
SUMMARY : Declares that the primary purpose of the Department
of Fish and Wildlife (DFW) is to provide services to persons who
fish and hunt, and dictates the specific times of year when DFW
must keep a specific trail in an ecological reserve for
Peninsular bighorn sheep open to the public for recreational
hiking. Specifically, this bill :
1)States that the primary function of the DFW is to provide
services to persons who fish and hunt in the state.
2)Requires that the Mirage Trail within the Magnesia Spring
Ecological Reserve shall be open during the months of May to
January, inclusive, and closed for three months during the
months of February to April, inclusive, for recreational
hiking, if the Fish and Game Commission (FGC) makes specified
findings.
EXISTING LAW :
1)Establishes DFW in the Natural Resources Agency and provides
that wildlife resources are held in trust by DFW for the
people of the state, and generally charges DFW with
administration and enforcement of the Fish and Game Code.
2)Provides for listing of threatened and endangered species
under both federal and state law, and prohibits the take of
any species so listed. Requires DFW and other state agencies
to take steps to conserve species listed as threatened or
endangered. The Peninsular bighorn sheep has been listed as
endangered under the federal Endangered Species Act since 1998
and under the California Endangered Species Act as a
threatened species since 2000.
3)Prohibits the take or possession of any fully protected
species, including bighorn sheep.
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4)Authorizes DFW, with approval of the FGC, to acquire, maintain
and manage lands for the purpose of establishing ecological
reserves to protect threatened or endangered species. Makes
it unlawful for any person to enter upon any ecological
reserve except in accordance with the regulations of the FGC.
Authorizes DFW to designate areas within ecological reserves
for trails, and to provide for added protection for species as
necessary, and allows only such public use and entry as are
compatible with the primary purpose of the reserve and subject
to FGC rules and regulations.
5)Designates the Magnesia Spring Ecological Reserve as an
ecological reserve established for the primary purpose of
providing protection for threatened or endangered species,
including specifically the Peninsular bighorn sheep.
Prohibits any person from entering the Magnesia Spring
Ecological Reserve during the period from January 1 to
September 30, with specified exceptions for the Mirage Trail,
and other designated trails as permitted by DFW.
6)Requires that the Mirage Trail within the Magnesia Spring
Ecological Reserve be kept open nine months of the year to
recreational hiking, if the FGC determines that the following
conditions are met:
a) Local public agencies or other entities will assume
complete financial responsibility for fencing to dissuade
hikers from traversing beyond the trail and into
sensitive Peninsular bighorn sheep habitat, and for
signage and educational materials to educate hikers about
Peninsular bighorn sheep; and
b) A single entity has been designated to fulfill the
financial arrangements and other terms and conditions
determined necessary by the FGC.
7)Authorizes the FGC to determine seasonal openings and closures
of the trail that will not conflict with the use of the area
by Peninsular bighorn sheep, consistent with the above
provisions.
FISCAL EFFECT : This bill is tagged nonfiscal.
COMMENTS : This bill deals with two distinct issues. The first
concerns the purposes and functions of the DFW. DFW maintains
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native fish, wildlife, plants and natural communities for their
intrinsic and ecological values and their benefits to people.
This includes habitat protection and maintenance in a sufficient
amount and quality to ensure the survival of all species and
natural communities. DFW is also responsible for the diversified
use of fish and wildlife including recreational, commercial,
scientific and educational uses. DFW's stated mission is to
manage California's diverse fish, wildlife, and plant resources,
and the habitats upon which they depend, for their ecological
values and for their use and enjoyment by the public. This bill
would declare DFW's primary function is to provide services to
people who hunt and fish. Note: The author is proposing
amendments in committee that would delete this section of the
bill.
Last year the Legislature passed and the Governor signed into
law two measures which made a number of comprehensive reforms to
the DFW. The changes were the result of a year-long visioning
process led by the Secretary of Natural Resources and included
the participation of a Blue Ribbon Citizens Commission (BRCC)
appointed by the Secretary and a broad stakeholder advisory
group. One of the provisions enacted into law changed the name
of the department from the Department of Fish and Game (DFG) to
the Department of Fish and Wildlife (DFW). The name change was
recommended by the BRCC to more accurately reflect the scope of
DFW's jurisdiction in the 21st century. The BRCC noted that the
aspect of DFW's mission regarding management of wildlife
resources needed to be strengthened to emphasize the
preservation and conservation of natural resources for current
and future generations. The stakeholder advisory group, while it
did not take a position on the name change, noted there was
general agreement during discussions that the name "California
Department of Fish and Game" reflected the historical origins of
DFG (and the FGC) as an agency primarily concerned with managing
hunting and fishing, and did not accurately reflect the modern,
broad mandates of the department to manage species and habitats
for a variety of purposes both ecological and utilitarian.
Potential benefits of the name change cited included improved
alignment between the name and the department's current broad
range of duties, and improved understanding, appreciation and
support on the part of the wider public, which includes both
people who fish or hunt as well as those who do not, for the
mission and work of the department.
DFW currently manages several major program areas including but
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not limited to biodiversity conservation, hunting, fishing,
management of public lands, oil spill prevention and response,
marine conservation, and enforcement of the state's wildlife
laws and regulations. This range of responsibilities extends
beyond providing services for hunters and fishers, though these
continue to be important functions of the DFW and are a part of
DFW's more comprehensive responsibilities for all wildlife,
including both game and nongame species, and for the habitats
and ecosystems of which they are a part.
Mirage Trail : The second part of this bill relates to just one
specific hiking trail, known as the Mirage Trail, located in the
Magnesia Springs Ecological Reserve in Riverside County.
Legislation enacted last year, AB 880 (V. Manuel Pérez), Chapter
527, Statutes of 2012, requires DFW to keep the trail open to
recreational hiking for 9 months out of the year, if the FGC
finds certain conditions are met, including that a local entity
has assumed financial responsibility for fencing, signage and
education of the public necessary to protect the Peninsular
bighorn sheep for which the ecological reserve was set up. AB
880 did not dictate which 9 months of the year the trail was
required to be kept open, but left that detail to the discretion
of the FGC. Since the enactment of AB 880, DFW has been working
with local interests in an effort to negotiate the conditions,
after which the plan will be reviewed by the FGC. This bill
would specify in statute the precise months of the year when the
trail would be required to be open to the public, rather than
leaving those management details to be determined by the FGC and
DFW.
The author asserts this bill will clarify requirements for the
Office of Administrative Law, which would review any regulations
to be proposed by the FGC. However, it is unclear why this
change is necessary, since the precise months of the year when
the trail should be open to the public, and when it should be
closed to protect the bighorn sheep, could be addressed by the
FGC through regulation without the need to dictate this kind of
management detail in statute. Moreover, the Legislature last
year in passing AB 880 intentionally chose to leave it up to the
FGC to determine seasonal openings and closures of the trail
that will not conflict with sheep use of the area, as was stated
in the Assembly analysis and in the language of the bill.
Background on Magnesia Springs Ecological Reserve :
This bill and last year's AB 880 respond to local opposition to
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the closure of a portion of the Mirage Trail, also known as the
"Bump and Grind" trail, located within the Magnesia Spring
Ecological Reserve. The trail is a popular trail that has been
used by local residents for many years. Portions of the trail
were closed by DFW to protect sensitive bighorn sheep habitat.
The Magnesia Spring Ecological Reserve was acquired by the state
in 1975 with environmental license plate funds as part of a
larger reserve of critical habitat for bighorn sheep. The
portion of the Reserve where the trail segment in question is
located was purchased in 1986. The Reserve remains essential
habitat under the Recovery Plan for Bighorn Sheep in the
Peninsular Range. The Reserve is located on the desert slope of
the Santa Rosa Mountains above the communities of Rancho Mirage
and Palm Desert. The primary purpose of the Reserve is to
rehabilitate and maintain habitat for bighorn sheep around
Magnesia Spring. Under the Wildlife Management Plan for the
Reserve, bighorn sheep are to receive priority over other
conflicting uses. The Santa Rosa Mountains Wildlife Habitat
Management Plan, a joint DFW and Bureau of Land Management (BLM)
plan that includes the Reserve area, also indicates that to
maintain viable habitat for the bighorn sheep, public use must
be tailored to insure minimal impacts.
The terminus of the Mirage Trail encroaches on an important
lambing area within the Reserve. Lambing areas are habitat
essential for ewes and their lambs to survive during the first
few months of birth. Insufficient lamb recruitment rate has
been identified as one of the key reasons for endangerment of
the sheep, and lambing success is known to be impacted by human
disturbance. The upper portion of the trail was first closed by
DFW due to concerns about impacts on the sheep several years
ago, but the gates and signs erected by DFW were destroyed by
vandalism. A sturdier gate was erected by CalFire crews in June
of 2011. DFW also installed security cameras and increased
warden patrols of the area at that time but the security cameras
were stolen and vandalized. Before a new gate was established in
June 2011 an estimated 100-200 people per day walked to the
terminus of the Mirage Trail despite the closure of the Reserve
from January to June.
In 2011 a status review update on the Peninsular bighorn sheep
was completed by the U.S. Fish and Wildlife Service. The review
concluded that the species continues to be endangered throughout
its range and no change in endangered status was recommended.
The review noted that while the number of sheep has increased in
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12 years from 335 to 981 animals, the number of ewes remains
below the value recommended for down listing under the recovery
plan, and the slow population growth remains a significant
concern for recovery. The status review also noted that the
seven primary threats identified when the species was listed all
continue to impact the species, including human disturbance and
insufficient lamb recruitment. In 2011, 23 lambs were born to
the Santa Rosa Mountains herd of which only five survived. The
report notes that negative effects from trails and recreational
uses continues to increase, but that management actions are
attempting to control threats through various means such as
closing trails seasonally.
Proposed Author's Amendments : The author is proposing
amendments in Committee to delete Section 1 of this bill.
Support and Opposition Arguments : All support and opposition
received on this bill were to the section of the bill which the
author is proposing to delete. Supporters assert since the DFW
receives a "great deal of funding" from license fees and
dedicated taxes, their primary mission should be to provide
services to those who hunt and fish. Opponents assert this
would represent a significant step backwards from progress made
last year on reform of DFW, which has broad responsibilities as
public trustee for all the state's wildlife that extend beyond
simply being a hunting and fishing club. Opponents assert this
bill would redefine DFW's primary function to the detriment of
California's wildlife, and note DFW's primary purpose is to
manage and protect the state's diverse fish, wildlife, plants,
and native habitats, and secondarily to ensure multiple uses of
natural resources, including recreational, commercial,
scientific and educational uses, where such uses can be
conducted with minimal negative impacts. Note: As noted above,
the author is proposing amendments to delete this section from
the bill.
REGISTERED SUPPORT / OPPOSITION :
Support Opposition
Central Coast Forest Association Humane Society of the United
States
Paw PAC
Sierra Club California
AB 1097
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Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096