BILL ANALYSIS Ó
AB 665
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
665 (Frazier)
As Amended August 18, 2015
Majority vote
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|ASSEMBLY: |77-0 |(April 30, |SENATE: |26-11 |(September 8, |
| | |2015) | | |2015) |
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Original Committee Reference: W., P., & W.
SUMMARY: Provides that the state has fully occupied the field
of the taking and possession of fish and game, and preempts any
local ordinance or regulation regarding the taking or possession
of fish and game.
The Senate amendments:
1)Modify the Legislature's delegation of regulatory authority to
the Fish and Game Commission (FGC) regarding the taking or
possession of wildlife to include public health and safety.
2)Modify the legislative findings and declarations in this bill
to reference laws for firearms used to take wildlife instead
of firearm laws generally, state legislative intent to affirm
the exclusive legal authority granted to the FGC and the
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Department of Fish and Wildlife (DFW) with regard to the
taking and possession of fish and game, and state legislative
intent to ensure statewide control by the FGC and DFW over
fish and game matters for public health and safety purposes.
3)State that nothing in this bill shall be construed to diminish
or affect existing legal protections for fish and game-related
management, recreation, or other activities.
4)State that nothing in this bill shall abridge the public's
right of navigation, fishing, hunting, or other recreation on
waters of the state, and include a reference to two specific
California court of appeal decisions and one specific state
attorney general opinion.
5)State legislative intent to expressly preempt local ordinances
regarding the taking or possession of fish and game, and state
legislative intent that local governments pursue requests for
regulation of hunting, fishing and depredation permits through
recommendations to the FGC for adoption of regulations.
6)State that all local ordinances and regulations regarding the
taking and possession of fish and game are subject to this
bill's declaration that the state has fully occupied the field
of the taking and possession of fish and game, and that the
FGC and the DFW are the only entities in the state that can
regulate the taking or possession of fish and game, unless
expressly authorized by the Fish and Game Code, or other state
or federal law.
7)Delete the reckless element from current law prohibiting the
intentional discharge of a firearm or arrow or crossbow bolt
over or across a public road or other way open to the public
in an unsafe or reckless manner, and makes other technical
changes to that section.
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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. 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.
3)Prohibits the intentional discharge of a firearm or arrow or
crossbow bolt over or across a public road or other way open
to the public in an unsafe or reckless manner. Makes a
violation of this prohibition punishable as a misdemeanor.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: Local ordinances may be preempted where the
Legislature adopts a general scheme for regulation that
indicates intent, expressly or impliedly, by the state to occupy
a particular field to the exclusion of local laws. The author
indicates the purpose of this bill is to reaffirm the state's
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sole regulatory authority over the taking and possession of fish
and game by prohibiting cities and counties from passing local
ordinances regarding the taking or possession of fish and game.
This bill would also provide that unless otherwise stated by the
Fish and Game Code or other state 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, and that all local
ordinances and regulations regarding the taking or possession of
fish and game are subject to these provisions.
The author and sponsors state that local regulation by non-fish
and game entities not only interferes with the comprehensive,
centralized control of fish and game, but diminishes the role of
science and wildlife professionals in wildlife regulatory
decisions. The author asserts that it also creates significant
enforcement issues for hunters and fishermen. While
acknowledging that previous legal opinions have suggested that
local governments could indirectly impact the taking of fish and
game on non-state and non-federal lands if necessary to protect
public safety, the author and sponsor assert that the Fish and
Game Code and FGC now take public health and safety into account
in crafting rules for fishing and hunting, and so additional
local regulation for these purposes is not necessary. This bill
also amends the Fish and Game Code to require that the FGC
consider public health and safety when adopting hunting and
fishing regulations.
Amendments taken in the Assembly deleted a clause in this bill
that prohibited a city or county from adopting an ordinance or
regulation within its jurisdiction relating to the taking or
possession of fish and game. The reason for this amendment was
that the law has recognized the authority of cities and counties
to adopt a local ordinance, the primary purpose of which is to
protect public health and safety, where the ordinance only has
an incidental effect on hunting or fishing. Amendments adopted
in the Senate state that it is the intent of the Legislature to
expressly preempt local ordinances regarding the taking or
possession of fish and game. The Senate amendments also codify
legislative intent to vest exclusive legal authority in the
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state FGC and DFW over fish and game matters for public health
and safety purposes, which appears contrary to the recognition
that local jurisdictions have the authority to regulate for
purposes of public health and safety. The effect of these
amendments, taken together, create confusion as to what the
Legislature intended with regard to the authority of local
governments to adopt ordinances where necessary to protect
public health and safety that may have an incidental impact on
hunting or fishing.
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. The Senate amendments add a
qualification to this section, stating that nothing in this
section abridges the public's rights of navigation, fishing,
hunting, or other recreation on waters of the state.
Supporters of this bill state that this bill will re-affirm
state preemption over fish and game matters, and help ensure
that hunting and fishing regulations are fully controlled by the
state FGC and DFW, taking into consideration the best available
science and biological information. Doing so will help conserve
fish and wildlife using a centralized approach and minimize
enforcement issues. Supporters of this bill believe strongly
that there must be state preemption of all local hunting and
fishing laws. Without the establishment of laws and regulations
solely at the state level, sportsmen have difficulty knowing
what the laws and regulations are as they move about the state
on hunting and fishing trips. They believe that local laws are
confusing and result in accidental violations and unnecessary
fines. Other supporters emphasize that the need for uniformity
in fish and game laws statewide is similar to the need for
uniformity in gun laws statewide.
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
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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 firearms in certain areas populated by children
and companion animals. 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.
Analysis Prepared by:
Diane Colborn / W., P., & W. / (916) 319-2096
FN:
0002315