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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