BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
                             Senator Fran Pavley, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 665          Hearing Date:    June 23,  
          2015
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          |Author:    |Frazier                |           |                 |
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          |Version:   |June 16, 2015    Amended                             |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|William Craven                                       |
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                   Subject:  Hunting or fishing: local regulation.


          BACKGROUND AND EXISTING LAW
          1)Authorizes the Legislature, in the California Constitution, to  
            delegate to the Fish and Game Commission (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  
            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.



          PROPOSED LAW
          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  







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          fish and game. Specifically, this bill:


          1)Provides that the regulation of the take or possession of  
            specified wildlife shall include public health and safety. 


          2)Contains findings and declarations relating the legal history  
            of local government authority to regulate hunting and fishing  
            that concludes, as noted above, that local governments may  
            adopt such ordinances that only incidentally affect fishing  
            and hunting provided that the primary purpose of the ordinance  
            is for the protection of public health and safety. 


          3)Provides 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.


          4)Prohibits a city or county from adopting an ordinance or  
            regulation within its jurisdiction regarding the taking or  
            possession of fish and game unless expressly authorized by the  
            Fish and Game Code, other state law, or federal law. 


          5)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  
            guaranteed under the Constitution are protected.


          6)Provides that nothing in this bill prohibits a public or  
            private landowner or their designee from controlling access or  
            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.










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          7)Contains a savings clause stating both that employees or  
            agents of the department performing their official duties are  
            covered by the bill and that these provisions do not affect  
            other existing legal protections for fish and game-related  
            management, recreation, or other activities not mentioned in  
            the bill. 


          8)Requires the FGC, when adopting regulations regarding hunting  
            and fishing, to consider public health and safety.  



          ARGUMENTS IN SUPPORT
          1)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 would take public  
            health and safety into account, pursuant to this bill, in  
            crafting rules for fishing and hunting, and so additional  
            local regulation for these purposes is not necessary.   
            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  








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            hunting or fishing, on land the entity owns or manages.
          ARGUMENTS IN OPPOSITION
          1) 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. As  
          examples, the Humane Society points to the City of San Rafael's  
          ban on the use of traps and poisons in city open space areas, a  
          ban on snares and other body-gripping traps in the City of Los  
          Angeles, and a ban on feeding of wildlife in city parks and  
          other public spaces in the City of Berkeley. In summary,  
          opponents argue cities and counties should continue to be  
          allowed to adopt ordinances on matters that affect public health  
          and safety, and the local regulatory process should be  
          safeguarded from such a sweeping change.

          2) East Bay Regional Park District is very concerned that the  
          bill could jeopardize public safety along its parks which  
          include hundreds of acres of Bay waters and regional shorelines.  
          In a photo submitted by the district, it is apparent that at  
          high tide, hunters could have access to both sides of a slightly  
          elevated trail. It requests an amendment authorizing a 150 yard  
          safety buffer along its trails, roads, and near its developed  
          areas. 

          The State Parks Partners Coalition comprised of 15 local  
          entities including Los Angeles County Parks and Recreation, East  
          Bay Regional Parks, and Santa Clara County Open Space District  
          is also opposed. While not anti-hunting, the coalition is  
          concerned about the loss of local control in protecting public  
          safety, and questions the need for preemption of local  
          ordinances particularly in situations where local recreational  
          lands are partially or wholly inconsistent with hunting  
          activities. 

          COMMENTS
          








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          1) Previous bills on this topic were unsuccessful but not  
          completely identical to this bill. The previous bills were more  
          akin to "partial pre-emption" bills. 


          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.  (The trapping exclusion is  
          now in AB 665 because of Assembly amendments.) 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 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.


          This bill, on the other hand, is intended to fully pre-empt  
          local ordinances without regard to the exceptions mentioned  
          above. 

          Local Ordinances. 
          Both the sponsor and DFW (which does not have a position on the  
          bill) were asked to identify or quantify the number of local  
          ordinances that have unreasonably interfered with hunting and  
          fishing. These are described below. Aside from these examples,  








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          the frequency with which local ordinances interfere with hunting  
          and fishing is not known. As stated above, existing law allows  
          such ordinances provided their effect on hunting and fishing is  
          "incidental."  To the supporters, these ordinances with  
          "incidental effects" on hunting make knowledge of lawful hunting  
          and fishing activities difficult to learn and makes for  
          helter-skelter enforcement. 

          1) The first example was a proposed ordinance from Hermosa  
          Beach. There, following a 2014 incident at the pier at which a  
          juvenile white shark was hooked and bit a fisherman, the city  
          considered further restrictions on fishing more restrictive than  
          state law. However, the amendments to the ordinance were never  
          adopted. 

          2) The second involves proposed amendments to an ordinance from  
          East Bay Regional Park District which would prohibit discharge  
          of a firearm within 150 feet of a trail, level, road, or  
          developed recreation area. In opposing this regulation,  
          California Waterfowl suggested instead that the district pursue  
          violators through violations enumerated in the Penal Code and  
          the Fish and Game Code. 

          Penal Code section 246.3 (a) provides that "[any] person who  
          willfully discharges a firearm in a grossly negligent manner  
          which could result in injury or death to a person is guilty of a  
          public offense?" Violations may be charged either as a  
          misdemeanor or a felony, according to the sponsor. 

          The Penal Code provision requires a showing of "gross  
          negligence" which requires the actor to have a specific criminal  
          intent that would not be necessary to prove if the district  
          could show, pursuant to its ordinance, a discharge within 150  
          feet of a trail or the other features mentioned in its  
          ordinance. It may be that an ordinance is more enforceable from  
          the perspective of the district than the Penal Code provision.

          On the other hand, Section 3004 (b) of the Fish and Game Code  
          prohibits the intentional discharge of a firearm across any  
          public road or other established way that is open to the public  
          in an unsafe and reckless manner. This provision can be charged  
          as a misdemeanor. 

          For its part, the district's ordinance acknowledges that hunting  








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          is regulated by the Fish and Game Code.  However, it believes  
          its ordinance fits within the "incidentally affects" description  
          that is authorized by existing law. Its argument is summarized  
          below in opposition statements. 

          3) The third example is from Redwood City which specifically  
          adopts the regulations of the Fish and Game Commission for  
          hunting, but creates additional zones within its city limits  
          where hunting along the San Francisco Bay is prohibited. The  
          sponsors consider this an example of exactly what should not be  
          allowed in local ordinances. The sponsors also believe that  
          other such local ordinances exist. 

          4) Sacramento County has an ordinance authorizing the sheriff to  
          issue county hunting licenses. 

          5) The City of Hercules had an ordinance prohibiting the  
          discharge of weapons within city limits. Its city limits  
          extended two miles into the Bay, with an obvious effect on  
          waterfowl hunting. It agreed not to enforce that aspect of its  
          ordinance. 

          6) The County of Los Angeles has an ordinance prohibiting the  
          discharge of any weapon, including shotguns, within  mile of a  
          structure. The sponsors consider this a de facto ban on hunting  
          in the county. 

          7) The County of Santa Cruz has an ordinance prohibiting the  
          discharge of weapons within significant blocks of the county  
          that are described in lengthy legal descriptions of the  
          specified properties. 

          8) Riverside County. Its ordinance has several closed or  
          restricted areas to the use of firearms, including shotguns and  
          air rifles, including expanded distance requirements from  
          buildings and other structures that are greater than state law  
          (150 yards).  

          9) San Bernardino County. Its ordinance specifies where hunting  
          is allowed, including in areas with restrictions where only  
          shotguns may be used.  It also prohibits the discharge of  
          firearms in several areas except for depredation. 

          It seems that in the vast majority of instances in which a local  








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          ordinance may go beyond the comfort level of hunting groups that  
          such conflicts have been resolved through discussions and  
          negotiations. There are few reported judicial decisions, and no  
          available database of local ordinances that affect hunting and  
          fishing.  The nine examples included is the complete list of  
          local ordinances that the sponsors provided although they  
          believe there are others. 

          Section 2. This section focuses on amendments to the bill in the  
          Assembly and additional amendments the Committee may wish to  
          consider if the bill moves forward. 

           Assembly Amendments.
           
          a) An Assembly amendment limited the bill to activities for  
          which a hunting and fishing license or a depredation permit is  
          required, thus eliminating the application of the bill to laws  
          related to trapping. Trapping had been exempted from two  
          previous bills that attempted to establish state pre-emption of  
          local ordinances that affected hunting and fishing. 

          b) Another Assembly amendment added "other state law" to clarify  
          that local ordinances would not be prohibited when expressly  
          authorized by the Fish and Game Code, federal law, or other  
          state laws. It remains to be seen if this amendment persuades  
          the opposition that local public health and safety ordinances  
          would not be pre-empted. It seems reasonable to conclude that  
          legitimate police power regulations of local governments derived  
          from such other express provision of state law would remain in  
          effect and would not be pre-empted.  A primary example would  
          seem to be a local ordinance that prohibits discharges of weapon  
          which may be based on public safety grounds completely  
          unmotivated and unrelated to a hunting regulation. That said, in  
          this context, the word "expressly" is subject to some  
          interpretation. 

           Possible Senate Committee Amendments. 

           a) Amendment 1 clarifies the finding regarding safety education  
          to clarify that the safety training provided to hunters is  
          focused on the weapons discharge laws that involve firearms used  
          to take wildlife, and not all weapons discharge laws in  
          California. 









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          a) Although the bill is intended to expressly pre-empt local  
          hunting and fishing ordinances, it does not directly make that  
          statement. Assuming the bill is not held in Committee and moves  
          forward, Amendment 2 would include a declaration to that effect.  
          This amendment would further the intent of the author and  
          sponsor. 

          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 implied, 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  
          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. 









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          The Committee should note that the Fish and Game Code and other  
          provisions of law contain references to local ordinances that  
          would not be affected by this bill since this bill expressly  
          recognizes ordinances that are authorized by state laws. These  
          include local ordinances regarding the take of wild pigs, and  
          the disposition of frogs and turtles in the live animal market.  
          There are undoubtedly others. 

          There are also multiple references to local ordinances in other  
          contexts on the DFW website. For example, the Fish and Wildlife  
          website explaining sport fishing regulations notes that "cities,  
          counties, and other local land management authorities may  
          require permits and impose other access/trespass restrictions in  
          addition to the restrictions in the sport fishing regulations.  
          It is the responsibility of the angler to be aware of and comply  
          with these local rules."   It is not clear how ordinances  
          referenced in this website will be treated under this bill, but  
          staff's assumption is that such ordinances would be pre-empted. 

          Another interesting example from the Fish and Wildlife website  
          explains that its "Fishing in the City" program is subject to  
          all state regulations, local and park ordinances, and that daily  
          catch limits may be lower than state limits. Those ordinances  
          would also likely be pre-empted. 

          In discussing a game refuge in Riverside County, the DFW website  
          notes city ordinances that prohibit hunting, and the website  
          also notes a Colusa County ordinance on hunting. Many local  
          jurisdictions have ordinances prohibiting hunting in parks. 

          b) The Committee may wish to make it clear that local  
          governments retain their authority to seek regulations or  
          approval of local ordinances adopted after the effective date of  
          this legislation through the existing procedures of the FGC.  
          Amendment 3 is intended to address that circumstance. On a  
          related note, the bill, as currently proposed, does not  
          eliminate existing local government ordinances but it does make  
          local government ordinances subject to the bill. 

          c) A recent author's amendment would inadvertently have made the  
          findings and declarations in section 200.5 operational by  
          incorporating them by reference into section 200.6. Amendment 4  
          would retain those findings and declarations but delete the  
          cross-reference to section 200.5. It would also delete a  





           


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          subsequent reference to Section 200.5 at page 4, line 8. This  
          amendment also would state that the local ordinances and  
          regulations that are subject to this bill are those "regarding  
          the taking and possession of fish and game." 

          d) Amendment 5 is technical and deletes an erroneous  
          constitutional cross-reference to hunting. 

          e) Amendment 6 would make the misdemeanor in FGC Section 3004(b)  
          a wobblet that could also be charged as an infraction. 


          SUGGESTED AMENDMENTS 

                     AMENDMENT 1
               Page 3, line 14. Delete "weapons discharge laws" and add:  
          "discharge laws for                                          
          firearms used to take wildlife" 

               AMENDMENT 2
               Page 3, line 29, add new (c).  Add: It is the intent of the  
               Legislature to expressly pre-empt local ordinances  
               regarding the taking or possession of fish and game as  
               provided in section 200.6. 

          AMENDMENT 3
               Page 3, line 29. Add a new (d): It is the intent of the  
               Legislature that local governments pursue requests for  
               local regulation of hunting and fishing and depredation  
               permits pursuant to Article 2 of the Fish and Game Code,  
               beginning at section 200.

          AMENDMENT 4. 
               Page 3, line 36. Delete "and section 200.5."
               Page 3, line 36. Add, after "regulation": "regarding the  
               taking and possession of fish and game." 
               Page 4, line 8.    Delete "or section 200.5." 

               AMENDMENT 5. 
               Page 4, lines 5. Delete "and hunting"
               Page 4, line 7. Add after Constitution, "and lawful hunting  
               activities" 

               AMENDMENT 6. 








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               Add FGC 3004 (b) into list of wobblets in Section 12000 of  
               the FGC. 



          SUPPORT
          California Bowmen Hunters Association
          California Chapter Wild Sheep Foundation\
          California Fish and Game Wardens' Association
          California Hawking Club
          California Waterfowl Association (sponsor)
          California-Oregon Wetlands and Waterfowl Council
          California Rice Commission
          California Rifle and Pistol Association, Inc.
          California Sportfishing League
          Delta Waterfowl
          Ducks Unlimited
          Gaines & Associates
          Grassland Water District
          Mule Deer Foundation
          National Rifle Association
          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


          OPPOSITION
          East Bay Regional Park District
          Marin Humane Society
          Project Coyote
          Public Interest Coalition
          Sierra Club California
          State Park Partners Coalition
          The Humane Society of the United States
          
                                      -- END --








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