BILL ANALYSIS Ó
AB 665
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 665
(Frazier) - As Introduced February 24, 2015
SUBJECT: Hunting or fishing: local regulation
SUMMARY: Provides that the state has fully occupied the field
of the taking and possession of fish and game, and preempts any
local ordinance or regulation relating to the taking or
possession of fish and game. Specifically, this bill:
1)Declares that the state fully occupies the field of the taking
and possession of fish and game pursuant to the Fish and Game
Code, regulations adopted by the Fish and Game Commission
(FGC) pursuant to the Fish and Game Code, and Section 20 of
Article IV of the California Constitution, and that all local
ordinances and regulations are subject to this section.
2)Prohibits a city or county from adopting an ordinance or
regulation within its jurisdiction relating to the taking or
possession of fish and game.
3)Requires the FGC, the Department of Fish and Wildlife (DFW),
or any other governmental entity legally authorized to affect
hunting and fishing on navigable waters held in public trust
to ensure that the fishing and hunting rights of the public
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guaranteed under the Constitution are protected.
4)Provides that unless expressly authorized by the Fish and Game
Code or federal law, the FGC and the DFW are the only entities
in the state that may adopt or promulgate regulations
regarding the taking or possession of fish and game on any
lands or waters within the state.
5)Provides that nothing in this bill prohibits a public or
private landowner or their designee from controlling public
access or public use, including hunting and fishing, on
property that the landowner owns in fee, leases, holds an
easement upon, or is otherwise expressly authorized to control
for those purposes in a manner consistent with state law.
6)Requires the FGC, when adopting regulations regarding hunting
and fishing, to consider public health and safety.
EXISTING LAW:
1)Authorizes the Legislature, in the California Constitution, to
delegate to the FGC powers relating to the protection and
propagation of fish and game. The Legislature, by statute,
has delegated to the FGC the power to regulate the taking or
possession of fish and game, in accordance with state fish and
game laws. The California Constitution also guarantees the
right to fish on the public lands and waters of the state and
prohibits laws that impede access to these lands and waters
for the purpose of fishing.
2)Gives local governments authority, under the California
Constitution, to make and enforce within their limits all
local, police, sanitary and other ordinances and regulations
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not in conflict with general law. Courts have held that a
city or county may adopt an ordinance that only incidentally
affects fishing and hunting if the primary purpose of the
ordinance is for the protection of public health and safety.
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose: The author indicates the purpose of this bill is to
reaffirm the state's sole regulatory authority over the taking
and possession of fish and game by prohibiting cities and
counties from passing local ordinances that relate to the
taking or possession of fish and game. This bill would also
provide that unless otherwise stated by the Fish and Game Code
or federal law, the FGC and the DFW are the only entities that
may adopt or promulgate regulations regarding the taking or
possession of fish and game on any lands or waters within the
state.
The author and sponsors state that local regulation by non-fish
and game entities not only interferes with the comprehensive,
centralized control of fish and game, but diminishes the role
of science and wildlife professionals in wildlife regulatory
decisions. The author asserts that it also creates
significant enforcement issues for hunters and fishermen.
While acknowledging that previous legal opinions have
suggested that local governments could indirectly impact the
taking of fish and game on non-state and non-federal lands if
necessary to protect public safety, the author and sponsor
assert that the Fish and Game Code and FGC now take public
health and safety into account in crafting rules for fishing
and hunting, and so additional local regulation for these
purposes is not necessary. This bill also amends the Fish and
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Game Code to require that the FGC consider public health and
safety when adopting hunting and fishing regulations.
Finally, this bill also includes a provision stating that
nothing in this bill prohibits a public or private landowner
from controlling public access or public use, including
hunting or fishing, on land the entity owns or manages.
2)Legal Background: Local ordinances are invalid if they
attempt to impose requirements in a field that is preempted by
state law. Local ordinances may be preempted where the
Legislature adopts a general scheme for regulation that
indicates intent, expressly or impliedly, by the state to
occupy a particular field to the exclusion of local laws.
(See In re Lane, 58 Cal.2d. 99, Pipoly v. Benson (1942) 20
Cal.2d. 366, and Sherwin-Williams Co. v. City of Los Angeles
(1993) 4. Cal.4th 893.) The California Constitution, Article
XI, Section 7, gives local governments broad police powers.
The California Constitution, as amended in 1902, also provides
that the Legislature may provide for the division of the state
into fish and game districts and may enact such laws for the
protection of fish and game as it deems appropriate. The
California Supreme Court in In re Makings (1927) 200 Cal. 174
held that the purpose of this amendment was to take from local
authorities the right to regulate fish and game and to invest
such power exclusively in the state.
In a 1986 opinion, the Attorney General analyzed both of these
constitutional provisions and opined that a county may by
ordinance adopt laws regulating certain methods of hunting
within its jurisdiction where such action is necessary to
protect public health and safety, and where the local
ordinance only incidentally affects the field of hunting. The
particular ordinance in question banned steel-jawed leg hold
traps. Attorney General opinions are persuasive authority but
not binding on courts.
The 1986 Attorney General opinion relied in part on the
reasoning of the Court of Appeal in People v. Mueller (1970) 8
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Cal.App.3d 949. The court in that case found a local
ordinance regulating fishing to be valid, and held that if the
primary purpose of the ordinance is the protection of public
health and safety, and the ordinance affects hunting and
fishing only incidentally, the ordinance is a valid exercise
of the local police power.
3)This bill broadens state preemption of local ordinances by
expressly preempting all local ordinances that relate to the
taking of fish and game: Subdivision 200.6 (a)(2) of this bill
goes beyond the above parameters to further preempt any local
ordinance that "relates" to the taking or possession of fish
and game. For example, a local ordinance that restricts the
use of firearms or traps for hunting or other recreational
uses within a city for the purpose of protecting public health
and safety, could be held invalid and preempted under this
bill since the ordinance "relates" to the taking of fish and
game, even though the primary purpose of the ordinance is to
protect public health and safety, and only incidentally
affects fishing and hunting.
The author and sponsors of this bill assert that such local
ordinances should be preempted since the state FGC has and can
be further directed to take public health and safety into
account when adopting statewide regulations on hunting and
fishing. A local government could also petition the FGC to
change the rules if they felt it was necessary to protect
public health and safety in their communities. Some may
argue, however, that local governments are in a better
position to evaluate the public health and safety needs of
their own local communities.
Supporters of this bill point out state regulations already
prohibit shooting of firearms while hunting within 150 feet of
an occupied dwelling. Whether this rule and other state rules
that, for example, prohibit negligent discharge of a firearm,
or discharge of a firearm over a roadway, are adequate to
address public health and safety needs in every community
could be subject to debate depending on the circumstances. A
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local jurisdiction may thus argue that it is within their
police powers to impose additional restrictions where
necessary for public health and safety purposes.
4)This bill preempts local ordinances regulating trapping:
Prior legislation addressing this issue included an exception
for local ordinances regulating trapping. A number of local
governments have adopted ordinances restricting the use of
traps in populated areas for public health and safety reasons,
and to protect domestic pets which may be unintentionally
caught in the traps. AB 815 (Berryhill) of 2008, a
predecessor to this bill, included an exemption providing that
local ordinances and regulations that regulate trapping were
not subject to the bill.
5)Prior and related legislation: AB 815 (Berryhill) of 2008 was
substantially similar to this bill, except that AB 815
included language providing that local ordinances that
regulate trapping were not subject to the state preemption
provisions of the bill. AB 665 also includes additional
language that was not in AB 815, specifically the provision
prohibiting a city or county from adopting an ordinance or
regulation within its jurisdiction "relating" to the taking or
possession of fish and game. AB 815 was vetoed by the
Governor.
AB 2146 (Canciamilla) of 2006 was also substantially similar to
this bill, except that it would have applied only to local
ordinances adopted after the effective date of the bill and
would have grandfathered in existing local ordinances. AB
2146 was held in the Senate.
AB 979 (Berryhill) of 2010 was also substantially similar to
this bill, except that it included language providing that a
city or county may not adopt an ordinance or regulation that
affects hunting or fishing unless the ordinance or regulation
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is both necessary to protect public health and safety and has
only an incidental impact on the fields of hunting and fishing
preempted by state law. It also included language limiting
the bill's application to activities for which a hunting or
fishing license is required by the state. AB 979 was vetoed
by the Governor.
Support Arguments: Supporters of this bill state that this bill
will re-affirm state preemption over fish and game matters, and
help ensure that hunting and fishing regulations are fully
controlled by the state FGC and DFW, taking into consideration
the best available science and biological information. Doing so
will help conserve fish and wildlife using a centralized
approach and minimize enforcement issues. Supporters of this
bill believe strongly that there must be state preemption of all
local hunting and fishing laws. Without the establishment of
laws and regulations solely at the state level, sportsmen have
difficulty knowing what the laws and regulations are as they
move about the state on hunting and fishing trips. They believe
that local laws are confusing and result in accidental
violations and unnecessary fines. Other opponents emphasize
that the need for uniformity in fish and game laws statewide is
similar to the need for uniformity in gun laws statewide.
Opposition Arguments: Opponents assert this bill is not needed
since the constitution and the courts have already delineated
the areas of state and local authority. They assert that this
bill, in giving the FGC and DFW exclusive authority over fish
and game matters, takes away the rights of cities and counties
to safeguard their own citizens from potential dangers involved
when fish and game are taken within their boundaries. They also
assert this bill creates unintended consequences by invalidating
numerous public safety and welfare ordinances already in place,
including limits on the use of dangerous traps and firearms in
certain areas populated by children and companion animals. In
summary, opponents argue cities and counties should continue to
be allowed to adopt ordinances on matters that affect public
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health and safety, and the local regulatory process should be
safeguarded from such a sweeping change.
Suggested Amendments: The committee may wish to affirm the
state's primary role in regulating the taking of fish and game,
acknowledging that rules such as hunting seasons, bag limits,
fishing license requirements and the like are best addressed at
the state level, while also retaining the authority of local
governments to adopt local ordinances the primary purpose of
which are to protect public health and safety and only have an
incidental effect on hunting or fishing. To accomplish these
objectives, the following amendments are proposed:
1)On page 3, strike lines 18-20, as follows:
(2) A city or county shall not adopt an ordinance or
regulation within its jurisdiction relating to the taking
or possession of fish and game.
2) On page 3, amend line 27 to read as follows:
"(c)(1) Unless expressly authorized by this code or other
state or federal law
1)On page 3, after line 37, insert:
"(3) This section applies only to activities for which a
hunting or fishing license or a depredation permit is
required by this code or regulations adopted by the
Commission."
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REGISTERED SUPPORT / OPPOSITION:
Support
California Waterfowl Association (sponsor)
California Bowmen Hunters Association
California Chapter Wild Sheep Foundation
California Hawking Club
California-Oregon Wetlands and Waterfowl Council
California Rice Commission
California Rifle and Pistol Association, Inc.
California Sportfishing League
Delta Waterfowl
Ducks Unlimited
Gaines & Associates
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Grassland Water District
Mule Deer Foundation
National Shooting Sports Foundation, Inc.
National Wild Turkey Federation
Outdoor Sportsmen's Coalition of California
Rocky Mountain Elk Foundation
Safari Club International, San Diego Chapter
San Diego County Wildlife Federation
Suisun Resource Conservation District
The Black Brant Group
The California Sportsmen's Lobby, Inc.
The Sportfishing Conservancy
Tulare Basin Wetlands Association
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Opposition
Marin Humane Society
Project Coyote
Sierra Club California
The Humane Society of the United States
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096