BILL ANALYSIS Ó
SB 392
Page 1
Date of Hearing: August 13, 2013
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
SB 392 (Tom Berryhill) - As Amended: August 5, 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 or mammals into food; and would make violation of the
possession limits subject to punishment as either a misdemeanor
or an infraction. 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 or mammals.
2)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
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.
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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)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.
COMMENTS : This bill addresses two distinct issues: how rules
regarding possession limits for game birds and mammals apply to
game meat that has been processed into food for consumption, and
criminal penalties for violations of game bird possession
limits. Note: Previous provisions of this bill that addressed
the applicability, or exemption there from, of Labor Code
prevailing wage requirements for certain habitat restoration
projects have been deleted from this bill.
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
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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
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
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decision would be left up to the discretion of the charging
entity.
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.
OPPOSITION ARGUMENTS : The one opponent to this bill expresses
concern that this bill would allow hunters to disregard
possession limits and maintain freezers full of game meat,
making it difficult for game wardens to determine if the animals
were lawfully taken. They also assert that rather than making
violations of rules regarding possession limits subject to
prosecution as either a misdemeanor or an infraction, the
penalties should be more severe and subject instead to
prosecution as an automatic misdemeanor, elevated to a potential
felony for repeat offenders. The opponent also raises
additional objections to prior provisions of this bill that have
been deleted, and to provisions of existing law.
REGISTERED SUPPORT / OPPOSITION :
Support
California Waterfowl Association
Opposition
Public Interest Coalition
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096