BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 298


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          Date of Hearing:   April 14, 2015


                  ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE


                                 Marc Levine, Chair


          AB 298  
          (Gonzalez) - As Introduced February 12, 2015


          SUBJECT:  Fish and wildlife:  violations


          SUMMARY:  Makes certain violations of regulations restricting  
          activities in Marine Protected Areas (MPAs) punishable as either  
          an infraction or a misdemeanor. Specifically, this bill:


          1)Provides that a person who violates existing Fish and Game  
            Commission (FGC) regulations restricting or prohibiting  
            specified activities in MPAs, including areas designated as  
            MPAs, marine managed areas, or special closure areas, is  
            guilty of an infraction punishable by a fine of not less than  
            $100 and not to exceed $1,000, or of a misdemeanor, except if  
            the person who violates the regulation holds a commercial  
            fishing license or a commercial passenger fishing boat  
            license, in which case the person shall be guilty of a  
            misdemeanor.   


          EXISTING LAW:


          1)Provides that any violation of the Fish and Game Code or  
            regulations adopted under the code is a misdemeanor, except  
            where expressly provided otherwise.  Makes a misdemeanor  








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            punishable by a fine of not more than $1,000, imprisonment in  
            county jail for not more than six months, or by both the fine  
            and imprisonment.


          2)Provides that certain specified violations of the Fish and  
            Game Code or regulations may be punishable as an infraction or  
            a misdemeanor.


          3)Authorizes the FGC, under the Marine Life Protection Act  
            (MLPA) to approve a network of MPAs to protect and conserve  
            marine life and habitat, and to regulate commercial and  
            recreational fishing and any other taking of marine species in  
            MPAs.  Current regulations of the FGC regulate the public use  
            of MPAs, other marine managed areas, and special closure  
            areas.  Among other things, the regulations:


               a)     Make it unlawful to injure, damage, take or possess  
                 any living, geological or cultural marine resource in a  
                 state marine reserve except under a scientific collecting  
                 permit;


               b)     Make it unlawful to injure, damage, take or possess  
                 any living or nonliving marine resource for commercial  
                 purposes in a state marine park;


               c)     Make it unlawful to injure, damage, take or possess  
                 any living geological, or cultural marine resource for  
                 commercial or recreational purposes in a state marine  
                 conservation area;


               d)     Make it unlawful to perform any activity that would  
                 compromise the recreational values for which a state  
                 marine recreational management area is designated;








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               e)     Prohibit the release of fish, wildlife or plant  
                 species in a marine managed area except as specified;


               f)     Prohibit the feeding of fish or wildlife in marine  
                 managed areas except as specified;


               g)     Allow a vessel to be anchored in an MPA or to  
                 transit through an MPA but prohibit the deployment of  
                 fishing gear while anchored, except as specified; 


               h)     Allow for the take of living marine resources by  
                 federally recognized tribal members subject to specified  
                 requirements;


               i)     Establish special rules and use restrictions for  
                 specific geographic areas, as identified.


          FISCAL EFFECT:  None; this bill is tagged nonfiscal.


          COMMENTS:  The author's stated purpose in introducing this bill  
          is to improve compliance with ocean wildlife and habitat  
          protection laws by providing additional tools to wildlife  
          officers and other law enforcement.  The MLPA authorized the  
          FGC, following a comprehensive public planning process, to  
          establish a network of marine protected areas to protect and  
          conserve marine living resources, habitats and ecosystems.  The  
          process of establishing a statewide MPA network in California  
          was completed in 2012.  There are three types of MPAs - state  
          marine reserves, state marine parks, and state marine  
          conservation areas - which vary in allowable use and extractive  
          activities.  MPAs are a subset of marine managed areas that also  








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          include state marine recreational management areas and other  
          special closure areas.  


          Under current law, any violation of the Fish and Game Code or  
          regulations adopted under the code, unless otherwise specified,  
          is punishable as a misdemeanor.  This bill would instead make  
          certain violations of regulations implementing the MLPA  
          punishable as either an infraction or a misdemeanor, commonly  
          referred to as a "wobblette." This allows a prosecutor to decide  
          whether to file a misdemeanor or an infraction charge, depending  
          on the severity of the circumstances.  Arguments in support of  
          wobblettes include that by allowing the option of either a  
          misdemeanor or an infraction to be charged, this flexibility 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 charge 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 to be prosecuted as a misdemeanor, with  
          the decision being left up to the discretion of the charging  
          entity. 


          Prior and Related Legislation:  SB 392 (Berryhill), Chapter 346,  
          Statutes of 2013, amended this same code section to make a  
          violation of certain 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.  SB 392 passed this committee on a 15-0 vote.  AB  
          1423 (Berryhill), Chapter 394, Statutes of 2009, similarly made  
          violation of the prohibition on willfully interfering with the  
          participation of any individual engaged in the lawful activity  
          of shooting, hunting, fishing, falconry, or trapping at the  
          location where the activity is taking place enforceable as  
          either an infraction or a misdemeanor, and made a 2nd violation  
          within 2 years of a prior violation punishable as a misdemeanor.  
           AB 1729 (Committee on Water, Parks & Wildlife), Chapter 285,  
          Statutes of 2007, also converted a number of violations of FGC  








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          regulations from misdemeanors to infractions or misdemeanor  
          wobblettes, including regulations pertaining to the take of  
          squirrels, rabbits, small game and game birds, and bag and  
          possession limits for sport fish.





          Should the wobblette apply to a second violation of the same  
          offense?   As currently drafted, this bill would allow a first  
          or second violation of the same prohibition to be punished as an  
          infraction or a misdemeanor.  The author and committee may wish  
          to consider whether a second violation of the same offense  
          should be subject only to the misdemeanor penalty, as AB 1423  
          (Berryhill) did, as described above.


          Support Arguments:  Supporters of this bill assert that this  
          bill will improve enforcement of California's MPA network by  
          providing law enforcement with the authority to issue  
          infractions instead of misdemeanors.  They note that  
          California's MPA network is the largest scientifically based  
          network of MPAs in the United States, and was crafted with  
          significant stakeholder involvement.  While compliance with MPAs  
          appears to be high overall, supporters assert that illegal  
          poaching is occurring in MPAs throughout the state.  However,  
          due to the heavy caseloads of district attorneys, evidentiary  
          issues, and other competing priorities, MPA laws are often  
          under-enforced.  By allowing for the issuing of infractions,  
          violators may be prosecuted more regularly and efficiently,  
          while also allowing district attorneys to focus on fully  
          prosecuting more serious poaching cases.     


          Opposition Arguments:  None on file.    


          REGISTERED SUPPORT / OPPOSITION:








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          Support


          Los Angeles County District Attorney's Office (co-sponsor)


          Black Surfers Collective


          MPA Collaborative Implementation Project


            (includes San Diego, Orange County, Los Angeles, Catalina, San  
          Luis Obispo, Monterey,


            San Mateo, Golden Gate, Sonoma, Mendocino, Humboldt, and Del  
          Norte Collaboratives)


          Oceana


          San Diego Council of Divers


          Sierra Club California


          United States Freediving Association




          Opposition








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          None on file.




          Analysis Prepared by:Diane Colborn / W., P., & W. / (916)  
          319-2096