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 ----------------------------------------------------------------- |Author: |Frazier | | | ----------------------------------------------------------------- ----------------------------------------------------------------- |Version: |June 16, 2015 Amended | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|William Craven | | | | ----------------------------------------------------------------- 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 AB 665 (Frazier) Page 2 of ? 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. AB 665 (Frazier) Page 3 of ? 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 AB 665 (Frazier) Page 4 of ? 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 AB 665 (Frazier) Page 5 of ? 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, AB 665 (Frazier) Page 6 of ? 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 AB 665 (Frazier) Page 7 of ? 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 AB 665 (Frazier) Page 8 of ? 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. AB 665 (Frazier) Page 9 of ? 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. AB 665 (Frazier) Page 10 of ? 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 AB 665 (Frazier) Page 11 of ? 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. AB 665 (Frazier) Page 12 of ? 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 -- AB 665 (Frazier) Page 13 of ?