BILL ANALYSIS Ó AB 298 Page 1 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 AB 298 Page 2 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; AB 298 Page 3 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 AB 298 Page 4 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 AB 298 Page 5 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: AB 298 Page 6 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 AB 298 Page 7 None on file. Analysis Prepared by:Diane Colborn / W., P., & W. / (916) 319-2096