BILL ANALYSIS Ó
SB 392
Page 1
Date of Hearing: July 2, 2013
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
SB 392 (Tom Berryhill) - As Amended: June 25, 2013
SENATE VOTE : 39-0
SUBJECT : Fish and Game: Possession Limit
SUMMARY : Requires the Fish and Game Commission (FGC) to
recommend legislation or adopt regulations clarifying when a
possession limit is not violated by processing lawfully taken
game birds and waterfowl into food; and clarifies the
application of certain Labor code exemptions to habitat
restoration projects. Specifically, this bill :
1)Requires the FGC, on or before January 1, 2015, to recommend
legislation or adopt regulations to clarify when a possession
limit is not violated by processing into food lawfully taken
game birds and waterfowl.
2)Provides that, notwithstanding any other provisions of law,
grants made by the Department of Fish and Wildlife (DFW) for
habitat restoration projects under the Shared Habitat Alliance
for Recreational Enhancement (SHARE) program, the upland game
bird program, and the Duck Stamp program, are not subject to
provisions of the Labor Code requiring payment of prevailing
wage.
3)Makes violation of regulatory requirements prohibiting the
possession of birds taken in excess of daily bag and
possession limits subject to punishment as either a
misdemeanor or an infraction.
EXISTING LAW :
1)Makes it unlawful to take animals outside of established
seasons or to exceed bag limits or possession limits
established in the Fish and Game Code or through regulations
adopted by the FGC. Bag limits are defined as the maximum
limit, in number and amount, of an animal that can be lawfully
taken by any one person during a specified period of time.
Possession limits are defined as the maximum, in number and
amount, of an animal that may lawfully be possessed by one
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person.
2)Allows up to the possession limit of any game bird or mammal
to be possessed outside the open hunting or fishing season if
the person possessing the animals has a valid hunting license
and required tags, or if the person received the game bird or
mammal as a donation from another licensed hunter and has a
copy of the donor's hunting license and required tags.
Similarly, allows a donor intermediary to receive game birds
or mammals from a donor to give to a charitable entity,
provided that the donor intermediary possessing the animals
outside the open season has documentation of the
hunter/donor's license and tag information. Any charitable
organization receiving the donated game meat must maintain the
documentation provided for one year.
3)Authorizes the DFW to enter into contracts for fish and
wildlife habitat preservation, restoration and enhancement
with public and private entities. Provides that such
contracts are not subject to provisions of the Labor Code
requiring payment of prevailing wage, with certain exceptions.
Authorizes DFW to enter into contracts with nonprofit
organizations for habitat conservation projects using monies
from the upland game bird stamp account, and for waterfowl
breeding and wintering habitat using monies from the Duck
Stamp Account. Further authorizes DFW to make grants to
nonprofits, governmental entities and other entities to
implement the SHARE program using funds from the SHARE
Account.
4)Makes violation of regulatory requirements prohibiting the
possession of any birds taken in this state in excess of the
daily bag and possession limits subject to punishment as a
misdemeanor. Provides exceptions from the prohibition for the
purpose of transporting, cleaning and storage, in which case
an individual may possess game birds taken by another hunter
provided that they are tagged by the hunter who has lawfully
taken them. Requires the tag to contain specified information
including the hunter's name, address, hunting license number,
kinds and numbers of birds taken, the date and location of the
kill, and signature.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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COMMENTS : This bill addresses three distinct issues: how rules
regarding possession limits for game birds apply to game meat
that has been processed into food for consumption; criminal
penalties for violations of game bird possession limits; and the
application or exemption there from of Labor Code prevailing
wage requirements for habitat restoration projects.
Clarifying Application of Possession Limits to Processed Game
Birds : The Fish and Game Code and regulations adopted by the
FGC establish bag and possession limits for various game species
that are allowed to be hunted in the state. Bag limits refer to
the total number of a particular species of animal that can be
taken in a single time period, normally a day. Possession
limits refer to the number of a particular species that can be
in the possession of one person at any given time. Possession
limits vary but tend to be double the bag limit. This allows
hunters to have in their possession animals that were taken on
different days, while still enabling enforcement by game wardens
of laws against poaching. The sponsors of this bill are
concerned that the possession limit restricts the ability of
hunters to freeze or otherwise process for food game birds taken
on different days for future consumption. On the other hand, if
the possession limit does not apply at all to preserved game
meat, poachers could exceed the daily bag limit, but if not
caught on that day claim that they shot the birds over different
multiple days. There have been examples of successful poaching
prosecutions where large numbers of waterfowl in a violator's
freezer were used as evidence in the prosecution. The
resolution of this issue requires a balance of considerations to
both enable law abiding hunters to preserve game for future
consumption, while still providing game wardens with the tools
they need in the field to enforce the law. This bill would
leave the details regarding the resolution of the issue to the
FGC by requiring the FGC to adopt regulations or make
recommendations to the Legislature to clarify when lawfully
taken game birds can be processed into food and maintained for
future consumption without violating the possession limit.
Should violation of the possession limit be punishable as either
a misdemeanor or an infraction (a wobblet) rather than only as a
misdemeanor? Regulations adopted by the FGC prohibit the
possession of any birds taken in this state in excess of the
daily bag and possession limit. Violation of this prohibition
is subject to prosecution as a misdemeanor. The regulations
provide exceptions from the possession prohibition for the
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purpose of transportation, cleaning, storage, shipment, or
taxidermy services, where an individual may possess game birds
taken by another hunter provided they are properly tagged.
Because the tagging requirements are very specific, the sponsors
of this bill are concerned that an individual may be cited for
inadvertently failing to include all of the information required
on the tag, and be guilty of a misdemeanor. This bill would
allow violations of the possession limits to be cited as either
a misdemeanor or an infraction, commonly known as a "wobblet."
This would allow a prosecutor to decide whether to file a
misdemeanor or an infraction charge, depending on the severity
of the circumstances. The sponsors of this bill also argue that
allowing the option of either a misdemeanor or an infraction
charge may actually lead to more prosecutions since minor
violations are often dismissed and not prosecuted at all if the
prosecution does not feel that a misdemeanor is warranted. In
such a case, this bill would allow the violator to be cited for
an infraction. On the other hand, this bill would also allow a
more serious violation of the possession limit to be cited as an
infraction rather than a misdemeanor as well, though that
decision would be left up to the discretion of the charging
entity.
Should grants for habitat restoration projects funded from
special funds such as the Duck Stamp and Inland Game Bird Stamp
Accounts be exempt from Labor Code provisions requiring payment
of prevailing wage? This bill seeks to clarify that grants
issued by the DFW for habitat restoration projects under three
programs are exempt from Labor Code requirements concerning
payment of prevailing wage on state contracts. The current law
appears to already exempt many such projects but is ambiguous.
Specifically, Section 1501.5 of the Fish and Game Code, a
general code section that authorizes the DFW to enter into
contracts for habitat restoration projects, expressly provides
that contracts entered into by the DFW for fish and wildlife
habitat preservation, restoration, and enhancement with public
and private entities are not public works or public
improvements, and are not subject to the Labor Code provisions
requiring prevailing wage. Section 1501.5 lists certain
exceptions to which the code section does not apply, but then
also provides exceptions to the exceptions, which include
contracts with public agencies, nonprofit organizations, or
Indian tribes that exceed $50,000 in costs. Federal law also
exempts habitat projects authorized under the North American
Wetlands Conservation Act from federal prevailing wage
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requirements, based on a legal opinion issued by the U.S.
Department of Interior, Office of the Solicitor. However, the
specific Fish and Game Code sections that authorize the DFW to
issue grants for habitat restoration projects with funds from
the Duck Stamp, Inland Waterfowl Stamp, and SHARE program
accounts are silent as to the prevailing wage issue. This bill
would clarify that such projects are also exempt from these
requirements.
The author and sponsors of this bill assert that application of
prevailing wage requirements to these types of habitat
restoration projects poses several problems, including: 1) that
projects funded under these accounts tend to be smaller projects
and the contractors that bid on them and are available to
perform the work tend to be local farmers or ranchers and not
larger construction companies; 2) requiring payment of
prevailing wage can add 35% or more to the cost of the project,
which reduces the amount of on the ground work that can be
performed under the grant; 3) many of the projects involve
matching cost-share agreements between federal, state and
private parties, and since federal law exempts these projects
from prevailing wage requirements, the higher costs for
prevailing wage requirements must be borne by the state share,
which creates inconsistency and complexities for project
implementation; and 4) application of the requirements can delay
implementation of projects which are seasonally limited as to
when they can be completed.
On the other hand, habitat restoration projects funded under
these programs may also include larger projects that involve use
of heavy earth moving equipment for activities such as
contouring, dredging or tree removal, for which exemption from
prevailing wage requirements may raise concerns. Another option
the committee may wish to consider to the exemptions as proposed
in this bill could be to limit the exemptions to smaller
projects under a certain dollar threshold, or to place
conditions on the specific types of activities that would be
covered. Alternatively, the committee could chose to leave the
law as is, deleting the proposed exemption language, or approve
the bill as proposed.
SUGGESTED TECHNICAL AMENDMENTS : If the Committee elects to
approve this bill, technical amendments are needed to avoid a
drafting error and make a minor technical change as follows:
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On page 7, line 12, after "waterfowl" insert: "projects"
On page 7, line 20 after "agreements" insert: "as defined in
subdivision (a) of Section 1571"
SUPPORT ARGUMENTS : Supporters of this bill believe it will help
provide needed clarity to hunters regarding application of
possession limits to processed game meat. The ability to cite a
violation of the possession limit as either a misdemeanor or an
infraction will allow for flexibility in enforcing tag labeling
violations that can be confusing for apprentice hunters.
Supporters also believe the clarification regarding public
contracting and labor code prevailing wage exemptions will
provide for more efficient and effective use of limited game
bird stamp revenues.
REGISTERED SUPPORT / OPPOSITION :
Support
California Waterfowl Association
Opposition
None on file.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096