BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 665|
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THIRD READING
Bill No: AB 665
Author: Frazier (D)
Amended: 8/18/15 in Senate
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE: 7-0, 6/23/15
AYES: Pavley, Stone, Hertzberg, Hueso, Monning, Vidak, Wolk
NO VOTE RECORDED: Allen, Jackson
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 77-0, 4/30/15 (Consent) - See last page for
vote
SUBJECT: Hunting or fishing: local regulation
SOURCE: California Waterfowl Association
DIGEST: This bill provides that (1) the state fully occupies
the field of the taking and possession of fish and game, and (2)
unless authorized by the Fish and Game Code or other state or
federal law, that the Department of Fish and Wildlife (DFW) and
the California Fish and Game Commission (FGC) are the only
entities that may regulate hunting and fishing on the lands and
waters of California. The bill expressly preempts any local
ordinance or regulation relating to the taking or possession of
fish and game. The bill also makes other related changes to the
Fish and Game Code.
ANALYSIS:
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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.
2)Provides that 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.
3)Guarantees in the California Constitution 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.
4)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.
This bill:
1)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'
current authority is limited to ordinances that only
incidentally affect fishing and hunting through ordinances
that have the primary purpose of public health and safety
protection.
2)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 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.
3)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.
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4)Requires the FGC and 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.
5)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.
6)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.
7)States legislative intent that local governments with an
interest in restricting hunting or fishing within their
jurisdiction should do so through regulations of the FGC.
8)Provides that the FGC regulation of the take or possession of
specified wildlife shall include public health and safety.
9)Deletes the requirement in section 3004 of the Fish and Game
Code for a showing of "recklessness" as a condition for a
misdemeanor conviction of a person for the unlawful discharge
of a weapon, but retains the provision that such unlawful
discharge must be intentional.
Comments
1)Local Ordinances. The Senate Natural Resources Committee
attempted to identify local ordinances to determine if there
are examples of ordinances that unreasonably interfere with
hunting and fishing. Nine were identified, but this may not be
an exhaustive list.
a) The first example was a proposed ordinance from Hermosa
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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 that were more restrictive than state law. However,
the amendments to the ordinance were never adopted.
b) 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, the sponsor of AB 665 suggested that the
district instead pursue violators through violations
enumerated in the Penal Code and the Fish and Game Code.
One such Penal Code provision (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.
This 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.
A second provision, 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. As noted, this bill would delete the
requirement of a showing of recklessness.
For its part, the East Bay Park District acknowledges that
hunting 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 but that would be
prohibited by this bill. Its argument is summarized below in
opposition statements.
c) The third example is from Redwood City which
specifically adopts the regulations of the Fish and Game
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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.
d) Sacramento County has an ordinance authorizing the
sheriff to issue county hunting licenses.
e) 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.
f) 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. The county considers it a
reasonable measure for public safety protection.
g) 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.
h) 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
the distance in state law (150 yards).
i) 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.
2)Pre-emption. 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
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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.
3)The lingering tension in state law. Some who acknowledge that
hunting and fishing regulations are exclusively the domain of
the state and that local hunting and fishing ordinances are
justifiably pre-empted may have a lingering question regarding
the effect of such preemption on local ordinances that
prohibit the illegal discharge of firearms in a context
unrelated to hunting.
An Assembly amendment attempted to address this question by
clarifying that local ordinances would not be prohibited when
expressly authorized by the Fish and Game Code, federal law,
or "other state laws" including the constitutional provision
granting local governments various police powers to protect
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public health and safety. It remains to be seen if this
amendment persuades the opposition (or future courts) that
local public health and safety ordinances would not be
pre-empted since these are authorized by "other state laws."
It seems clear that the intent of this amendment is 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"
in the Assembly amendment may be subject to some
interpretation.
Prior Legislation
Previous bills on this topic were unsuccessful but were not
completely identical to this bill. The previous bills were
closer 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. (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 that
prohibits a city or county from adopting an ordinance or
regulation within its jurisdiction "regarding" 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
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified8/16/15)
California Waterfowl Association (source)
California Bowmen Hunters Association
California Chapter Wild Sheep Foundation
California Fish and Game Wardens' Association
California Hawking Club
California-Oregon Wetlands and Waterfowl Council
California Rice Commission
California Rifle and Pistol Association, Inc.
California Sportfishing League
California Sportsman's Lobby
Delta Waterfowl
Ducks Unlimited
Firearms Policy Coalition
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 County Wildlife Federation
Suisun Resource Conservation District
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The Black Brant Group
The California Sportsmen's Lobby, Inc.
The Sportfishing Conservancy
Tulare Basin Wetlands Association
OPPOSITION: (Verified8/16/15)
City and County of San Francisco
East Bay Regional Park District
Hayward Area Recreation and Park District
Marin Humane Society
Project Coyote
Public Interest Coalition
Sierra Club California
State Park Partners Coalition
The Humane Society of the United States
ARGUMENTS IN SUPPORT: 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
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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 hunting or fishing, on land the entity owns or
manages.
ARGUMENTS IN OPPOSITION: 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.
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 it questions the need for preemption of local
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ordinances particularly in situations where local recreational
lands are partially or wholly inconsistent with hunting
activities.
The City and County of San Francisco adopted an oppose position
on August 19th, 2015. Its opposition is based on its view that
the discharge of firearms adjacent to or near public parks or
general recreation lands presents an imminent public danger that
cannot be adequately monitored or reconciled with existing state
resources (given the chronic under-budgeting of DFW wardens). It
also objects to the creation of this public danger through the
preemption of local ordinances that presently govern its
parklands. It fears that those parklands, could, through this
bill, become adjacent to lands or waters that would be used for
hunting.
ASSEMBLY FLOOR: 77-0, 4/30/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,
Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,
Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Grove,
Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Campos, Chávez, Gomez
Prepared by:William Craven / N.R. & W. / (916) 651-4116
8/19/15 20:53:07
**** END ****
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