BILL ANALYSIS Ó
AB 1792
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Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 1792
(Wood) - As Introduced February 4, 2016
SUBJECT: Elk tags: Indian tribes
SUMMARY: Requires the Fish and Game Commission (FGC) to
allocate a specific number of elk tags to federally-recognized
Indian tribes in California for the purpose of cultural or
religious ceremonies and celebrations.
EXISTING LAW:
1)Authorizes the FGC to authorize the taking of elk, and to
determine and fix the area, season, hours, bag and possession
limits, and number of elk that may be taken. Authorizes the
FGC to authorize the take of tule elk if the average of the
Department of Fish and Wildlife's (DFW's) statewide tule elk
population estimates exceed 2,000 animals, or the Legislature
determines, based on reports prepared by DFW, that suitable
areas cannot be found in the state to accommodate that
population in a healthy condition.
2)Authorizes DFW to issue an elk tag upon payment of a fee,
which is deposited in the Big Game Management Account within
the Fish and Game Preservation Fund. Requires a hunting
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license and payment of the fee to obtain a tag authoring the
taking of an elk. The base statutory fee for an elk tag is
$165 for residents and not less than $1,050 for nonresidents.
The fees are adjusted annually based on the Implicit Price
Deflator. With annual adjustments, the current tag fee is
$445.35 for residents and $1,361.20 for nonresidents. Only
one elk tag may be sold annually to nonresidents. In
addition, not more than three tags may be authorized annually
to be sold at auction for purposes of raising funds for
programs and projects to benefit elk.
3)Requires DFW to develop a statewide elk management plan that
emphasizes maintaining sufficient elk populations in
perpetuity while considering specified factors, including: the
characteristics and geographic range of each elk subspecies,
including Rocky Mountain Elk, Roosevelt Elk, and Tule Elk;
habitat conditions and trends; major factors affecting elk,
including conflicts with other land uses; management
activities necessary to achieve the goals of the plan and
alleviate property damage; identification of high priority
areas for elk management; and methods for determining
population viability and minimum numbers needed to sustain
local herds.
4)Authorizes DFW to relocate tule elk, and requires DFW when
relocating tule elk to locate them in areas suitable to the
elk, and to cooperate with federal and local agencies and
private property owners in relocating elk to suitable areas.
Requires when property damage occurs that emphasis be placed
on managing each tule elk herd at a biologically sound level
through the use of relocation, regulated hunting, or other
appropriate methods as determined by DFW in accordance with
the statewide elk management plan, and after consulting with
landowners.
5)Provides that notwithstanding any other provision of law, the
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provisions of the Fish and Game Code are not applicable to
California Indians whose names are inscribed upon the tribal
rolls, while on the reservation of that tribe and under those
circumstances where the code was not applicable to them
immediately before the effective date of a specific federal
law enacted in 1953. Provides that no Indian to whom that
section applies shall be prosecuted for a violation of any
provision of the Fish and Game Code occurring in the places
and under the circumstances described, but further provides
that nothing in that section prohibits or restricts the
prosecution of an Indian for violation of a provision of the
Fish and Game Code prohibiting the sale of a bird, mammal,
fish, amphibian, or reptile.
6)Authorizes the Yurok Tribe to take fish from the Klamath River
for subsistence purposes. Authorizes Native Americans whose
ancestors originated in an area adjacent to two specific
stretches of the Klamath and Trinity Rivers to engage in
traditional gathering activities, including fish and other
natural foods and materials for regalia and ceremonial
purposes. Further provides that Indians taking fish and game
under that section shall do so in accordance with rules and
regulations of the FGC and under permit issued by the DFW.
7)Established a pilot project in the 1980s to encourage efforts
of the state and the Covelo Indian Community of the Round
Valley Indian Reservation to reach a mutual agreement
regarding Indian subsistence fishing. Stated legislative
findings and declarations regarding the hope that the pilot
project would provide an incentive for similar negotiated
agreements with other tribes. Stated legislative findings and
declarations that jurisdiction over the protection and
development of natural resources, especially fish, is of great
importance to both the State of California and California
Indian Tribes.
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8)Requires as part of the California Environmental Quality Act
(CEQA) that the lead agency for a proposed project consult
with California Native American tribes that are traditionally
and culturally affiliated with the geographic area of a
proposed project if requested.
9)Makes it an affirmative defense to a violation of state law
prohibiting the possession of feathers of nongame birds, that
the possessor is an enrolled member of a federally recognized
Native American tribe or nonfederally recognized California
Native American tribe listed on the California Tribal
Consultation List maintained by the Native American Heritage
Commission.
FISCAL EFFECT: Unknown
COMMENTS: This bill requires the allocation of a specific
number of elk hunting tags, as determined by the FGC, to
federally-recognized Native American tribes in California.
1)Author's Statement: The author states this bill would require
that a specific allocation of elk tags be set aside for Native
Americans seeking to take them for cultural or ceremonial
reasons. Elk are interwoven within the ancient traditions of
Native Americans, but obtaining the necessary elk tags have
been difficult for many tribes. Right now, tribal members and
hunters who want an elk tag purely for game, have to go
through the same process of obtaining an elk tag before
permission is granted to take elk. Fishing for salmon is an
integral part of tribal culture and tribes have entered into
treaties with the federal government that reserve the tribes'
hunting and fishing rights for salmon. Elk are much like
salmon when it comes to the traditions of Native Americans,
but elk do not have the same designation as salmon. This bill
is a small step forward in guaranteeing that tribes have the
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ability to obtain elk for traditional and ceremonial purposes.
2)Background:
a) Elk in California: According to the DFW website, there are
three species of elk in California; Roosevelt (Cervus elaphus
roosevelti), Rocky Mountain (Cervus elaphus nelsoni), and Tule
(Cervus elaphus nannodes) elk. The Tule elk are the smallest
of the elk species in North America and are endemic to
California. As many as 500,000 Tule elk are believed to have
inhabited the state prior to the 1800s, when they were hunted
almost to extinction. A law passed in 1873 protected the last
remaining Tule elk, which were protected on one ranch.
Various relocation efforts over the years have met with mixed
success. In 2010 the DFW estimated in an environmental impact
report (EIR) on elk hunting that there were at least 3,900
Tule elk statewide in 22 separate herds.
According to the DFW 2010 EIR, Roosevelt elk were once
distributed widely throughout northern California. According
to the National Park Service, Roosevelt elk historically
ranged from the San Francisco Bay Area to Vancouver, British
Colombia in large numbers. Today their range is limited from
Humboldt County, California to Vancouver Island, British
Columbia. Nearly Extinct by 1925, the number of Roosevelt elk
in California had dropped to as few as 15. One of the last
Roosevelt elk herds was located in Prairie Creek Redwoods
State Park in northern California. Protection of habitat in
the park and surrounding areas has allowed the California
Roosevelt elk population to rebound. The DFW estimated in
2010 that the population of Roosevelt elk in California was
about 4,500.
Rocky Mountain elk are native to the Rocky Mountains. According
to the DFW 2010 EIR, it is unclear whether Rocky Mountain elk
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occupied California prior to the arrival of Europeans. In
2010 there were 4 populations in California, with a total
estimated population of 1,500 to 2,000. A population in the
Warner Mountains in Modoc County in northeastern California
arrived through natural migration from Oregon to California.
Two smaller populations in southern California and one near
Redding were established through translocation efforts.
The total elk tag quota for 2015 was 356. The tags are issued
through lottery drawings. A few additional tags are issued
through nonprofit fund raising auctions, with the proceeds
going to elk conservation. The DFW indicates that is in the
process of developing a statewide management plan for elk that
has not yet been completed. According to the DFW's website,
the goals of DFW's current elk management program are to
maintain healthy elk herds, reestablish elk in suitable
historic range, provide public educational and recreational
opportunities involving elk, and to alleviate conflicts
involving elk on private property.
b) Input from Tribes: Background information provided by the
Tolowa Dee-ni' Nation notes that the tribe has a long
historical relationship of stewardship with their tribal lands
in California, and have relied on the lands for sustenance,
including hunting, fishing and gathering. The Constitution of
the tribe delegates responsibility to protect and preserve
wildlife and natural resources, and to regulate hunting,
fishing and trapping within the Tolowa Nation, to the Tribal
Council. As such, the Tribe has sought the opportunity to
enter into cooperative agreements to restore ecological
balance to elk herds located within the Tolowa Dee-ni' lands
and jurisdiction. Background information provided by the
tribe further notes that concerns have been raised by
residents of Del Norte County regarding a perceived
overpopulation of Roosevelt Elk. They assert that a growing
elk population with minimal management has been a cause of
concern for tribal and non-tribal community members. The
Tolowa Dee-ni' indicates it is a self-governance tribe that is
eligible to develop and enter into self-governance agreements
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with other government entities. The Tribe indicates it
currently has a co-management agreement with national and
state park agencies in Del Norte County. The tribe asserts
that an agreement for co-management of elk on tribal lands
would allow the DFW and California tribes to better define
their relationship and best serve the stewardship of
aboriginal lands.
The Karuk Tribe, California's third largest tribe, similarly
notes that elk is a traditionally important food source for
the Karuk People of the mid-Klamath River Basin. The tribe
indicates that Karuk tribal members have managed elk habitat
and hunted elk for food in their aboriginal territory since
time immemorial. However, the Tribe notes that despite being a
federally recognized self-governance tribe, the laws and
regulations that pertain to Karuk harvest of elk on aboriginal
lands remains poorly defined. The Karuk tribe is not a
reservation tribe, but is a federally recognized tribe and
asserts retained rights to hunting and gathering in their
aboriginal territory.
Karuk land management practices include seasonal application
of prescribed fire to support elk habitat and regulation of
take for subsistence and ceremonial use based on seasonal
ecological indicators and herd population dynamics. In the
1800s nearly all elk were extirpated from Karuk territory.
Beginning in the 1980s Roosevelt Elk were re-introduced into
the Klamath National Forest and the Marble Mountain
Wilderness. Since reintroduction elk herds have increased and
there are now at least 4 herds with a total population of
1,500 to 4,000 elk in the region.
The Karuk note that a regulated elk hunt was initiated by DFW
in 1995 and that DFW gives out about 50 Marble Mountain elk
tags per year. However, although the habitats of four of the
herds lie within Karuk aboriginal territory, Karuk tribal
members for the most part do not participate in the hunt and
compete for the tags because the regulatory process is seen as
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diminishing tribal sovereignty. Managing and harvesting elk
for subsistence purposes is seen by the Karuk as an important
step towards expanding access to cultural foods and
reestablishing traditional food management and distribution.
Elk are identified as an important cultural and ceremonial
resource and an ecosystem management indicator in the Karuk
Department of Natural Resources' latest Eco-Cultural Resource
Management Plan.
The Karuk tribe acknowledges that the U.S. Fish and Wildlife
Service claims jurisdiction over most of the elk habitat in
Karuk aboriginal territory, and the DFW claims jurisdiction
over the wildlife of the State. The Karuk Tribe in their
Constitution claims concurrent jurisdiction over all lands,
waters, natural resources, cultural resources, and wildlife
within the Tribe's territory. The Karuk indicate that while
the latest elk management plan for the Klamath National Forest
(2007), co-authored by the U.S. Fish and Wildlife Service and
the DFW, acknowledges the importance of indigenous ecological
knowledge and stewardship practices, including the use of fire
to maintain elk habitat, there is currently no legal or policy
framework or process for co-management. They also assert that
while current state law recognizes the rights of Karuk tribal
members to take game for ceremonial purposes (see Government
Code Section 186), that authority has not been used because,
to the Karuk tribe, it implies diminished sovereignty by
requiring a permit, and because the narrowly defined area
described in the statute is not currently used by elk.
c) Tribal Consultation Policy: In 2011 Governor Brown issued
Executive Order B-10-11, which provides, among other things,
that it is the policy of the administration that every state
agency and department shall implement effective
government-to-government consultation with California Indian
Tribes. The FGC has adopted a policy on tribal consultation
which states that its purpose is to create a means by which
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tribes and the FGC can effectively work together to realize
sustainably-managed natural resources of mutual interest.
Among other things, the policy states that the FGC will
collaborate with tribes and:
"In areas or subjects of mutual interest, FGC will
pursue partnerships with tribes to collaborate on solutions
tailored to each tribe's unique needs and capacity. The
structure of these collaborative efforts can range from
informal information sharing, to a memorandum of
understanding with more specific agreements regarding
working relationships and desired outcomes, to
co-management agreements with specific responsibilities and
authorities."
3)Prior and related Legislation: AB 52 (Gatto), Chapter 532,
Statutes of 2014, required lead agencies under CEQA to begin
consultation with a California Native American tribe that is
traditionally and culturally affiliated with the geographic
area of a proposed project if requested.
SB 685 (Evans) of 2011 proposed to authorize Native American
tribes to submit proposals for co-management of marine species
within marine protected areas designated under the Marine Life
Protection Act. That bill died in the Senate Natural
Resources & Water Committee.
4)Support Arguments: The Tolowa Dee-ni' Nation, a federally
recognized Indian Tribe, expresses support for legislation
that promotes the co-management authority of federally
recognized tribes in the management of California's elk herds
with the state. However, they request amendments to this bill
that would replace the existing language of the bill with
language requiring DFW to negotiate and enter into agreements
with federally recognized tribes to co-manage elk herds and
establish herd-specific harvest allocations for elk located
within the territory of the individual tribe. The language
suggested by the tribe would require negotiated tribal
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allocations to be managed pursuant to tribal ordinance, and
for the DFW and the tribe to agree to share information and
coordinate mutually beneficial habitat management programs for
elk herds on tribal lands. The author has not agreed to
accept these specific amendments, but continues to be engaged
in discussions with the Tribes and others on language.
5)Opposition Arguments: The California Waterfowl Association in
opposition to this bill raises concerns that allocation of
tags to tribes will make it more difficult for other sportsmen
to participate in elk hunting, and emphasizes that hunters,
DFW, landowners, and nonprofit conservation groups have been
engaged in longstanding efforts to restore and enhance elk
habitat and numbers. Concerns have also been expressed by
some tribes who favor a co-management approach over the
current language in this bill. The California Forestry
Association and the Rocky Mountain Elk Foundation do not have
an oppose position on this bill but sent letters of concern.
The Rocky Mountain Elk Foundation is concerned that the number
of tags allocated to tribes could exceed the number of elk
that could be taken while managing their recovery in the
state, and that the number of tags available to the general
public would be reduced. They note that there were over
35,000 applicants in 2014 for only a little over 300 tags
issued. They point to the need for additional definition and
clarification as to the conditions under which elk could be
taken by the tribes. Concerns have also been raised that any
allocation of tags to tribes should be biologically based,
consistent with state and federal elk management plans and
goals for elk recovery, and clearly define the boundaries of
the areas where tribal hunting may occur. The California
Forestry Association also expresses similar concerns that
allocating tags to tribes could decrease the number of elk
tags currently available to the public or landowners and have
a negative effect on elk populations, but expresses a
willingness to work with the author.
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6)Proposed Amendments: The tribes have proposed amendments to
this bill that would require the DFW and FGC to negotiate with
the tribes to co-manage and establish herd-specific harvest
allocations for elk located within the territory of the
individual tribe. The author and interested parties have not
yet finalized language acceptable to all parties. The FGC
also indicates that their tribal committee will be meeting
next month to discuss this issue. With the understanding that
further work is needed on this bill to reach consensus, the
author and committee may wish to consider an amendment at this
time that would require the FGC to engage in consultation with
the tribes regarding elk management and appropriate harvest
allocations, as follows:
(f) Upon request, the commission shall engage in consultation
with individual federally recognized tribes regarding elk
management issues, and may allocate a specific number of elk
tags to federally-recognized Indian tribes in California for
the purpose of harvesting elk located within the defined
territory of the individual tribe for purposes of subsistence,
cultural or religious ceremonies, or tribal celebrations.
Prior to allocation of elk tags to tribes pursuant to this
section, the Department of Fish and Wildlife shall work
collaboratively with the tribes on development of a
science-based elk management strategy which includes tribal
harvest for cultural, ceremonial and subsistence purposes .
REGISTERED SUPPORT / OPPOSITION:
Support
Tolowa Dee-ni' Nation (with amendments)
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Opposition
California Waterfowl Association
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096