BILL ANALYSIS                                                                                                                                                                                                    Ó

                                                                  AB 1097
                                                                  Page  1

          Date of Hearing:   April 30, 2013

                                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  

           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.


                                                                  AB 1097
                                                                  Page  2

          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  

           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  


                                                                  AB 1097
                                                                  Page  3

          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  

          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  


                                                                  AB 1097
                                                                  Page  4

          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  

          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  


                                                                  AB 1097
                                                                  Page  5

          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  


                                                                  AB 1097
                                                                  Page  6

          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.     


           Support                         Opposition  

          Central Coast Forest Association   Humane Society of the United  
                                             Paw PAC
                                             Sierra Club California


                                                                  AB 1097
                                                                  Page  7


          Analysis Prepared by  :    Diane Colborn / W., P. & W. / (916)