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