BILL ANALYSIS
SENATE NATURAL RESOURCES AND WILDLIFE BILL NO: AB 409
Senator Tom Hayden, Chair AUTHOR: Machado
VERSION: June 29,
1998
Original: Feb. 20,
1997
Amended: June 22,
1998
FISCAL: No
URGENCY: No
CONSULTANT: Thad Kousser
HEARING DATE: July 1,
1998
SUBJECT: Regulation of wild and non-native animals; Fish
and Game Commission: Ferrets
ISSUE: Should the Legislature delegate to the Fish and Game
Commission the full authority to decide which species of
animals shall be restricted in their ownership?
SUMMARY: This bill vests solely in the Fish and Game
Commission, instead of in both the commission and the
Legislature, the power to determine whether the possession,
sale, transportation, and live release of any animal
species shall be regulated. This legislation also sets
forth standards for a finding that the commission would be
required to make before removing any animal from a list
"restricted" species.
BACKGROUND & EXISTING LAW:
1.Section 20 of Article IV of the California Constitution,
added in 1966, established the Fish and Game Commission.
The commission is made up of five members appointed by
the governor and approved by the Senate to serve six-year
terms. The Constitution states that "The Legislature may
delegate to the commission such powers relating to the
protection and propagation of fish and game as the
Legislature sees fit."
2.In 1933, the Legislature defined "wild animal" as any
bird, mammal, mollusk or crustacean "which is either not
normally domesticated, or not normally native within this
State" (Section 2116 of the Fish and Game Code). The
importation and confinement of any such wild animal could
be regulated by the state. In 1974, this definition was
amended to include only those "not normally domesticated
animals" as determined by the Fish and Game Commission.
3.Section 2118 of the Fish and Game Code lists species
which are illegal to import, transport, possess, or
release alive into this state. This section also grants
the Fish and Game Commission, in cooperation with the
Department of Food and Agriculture, the authority to add
to or delete from this list any species of wild animal.
The commission may add any species when it is "proven to
be undesirable and a menace to native wildlife or the
agricultural interest of the state, or (2) to provide for
the welfare of wild animals." Consequently, both the
Legislature and the commission currently have the power
to place any animal species on this list or to remove a
species, although the Legislature sets forth criteria for
the commission in this process.
4.Title 14, Section 671 of the Fish and Game Commission's
regulations contain a list of regulated "wild" species
that mirror's the Fish and Game Code's list.
5.Upon a ruling of the commission, the Department of Fish
and Game may issue a revocable, nontransferable permit to
possess an animal which is listed as prohibited. These
permits are issued for research and educational purposes,
but never for personal ownership of pets. Current law
details what information must be included in any permit
application and any permit issued. (FGC, Sec. 2151, 2152)
6.The "enforcing officers" for these laws and regulations
means the enforcement personnel of the Department of Fish
and Game, state plant quarantine officers and county
agricultural commissioners. (FGC, Sec. 2117) The
commission must promulgate regulations to guide these
officers, including a list of prohibited animals which
describes them and sets forth the reasons for their
prohibition. (FGC, Sec. 2122, 2123)
7.It is unlawful to "take" any mammals which are listed as
illegal to possess, transport, import, or release alive.
(FGC, Sec. 2126)
8.The director is instructed to appoint a committee to
advise the director on the humane care and treatment of
wild animals. This committee is charged with making
recommendations regarding the enforcement of prohibitions
on such animals, standards for their care once
discovered, and cooperation with local agencies in
enforcing the ban. (FGC, Sec. 2150.3)
PRIOR VOTES:
Not applicable
PROPOSED LAW:
1.Replaces the term "wild animal" with "restricted animal"
throughout relevant sections of the Fish and Game Code.
2.Removes from the Fish and Game Code the list of animal
species which may not be imported, transported,
possessed, or released alive into the state of
California. Instead, the Fish and Game Commission, in
cooperation with the Department of Food and Agriculture
and the Department of Health Services, shall designate
animals as restricted in order to further the
Legislature's intent of reducing threats to native
wildlife, agricultural interests, the public health and
safety, and the health and welfare of restricted animals
themselves.
3.Authorizes the commission, in cooperation with the
Department of Food and Agriculture and the Department of
Health Services, to allow the importation,
transportation, possession or live release of any animal
species when it can make a finding that "no damage or
detriment will be caused to agriculture, native wildlife,
the public health or safety, or the welfare of the
animal," from doing so.
4.States that "any peace officer," not just Department of
Fish and Game personnel, state plant quarantine officers,
and county agriculture commissioners, is responsible for
enforcing prohibitions on "restricted animals." Removes
the requirement that the commission promulgate
regulations to guide enforcement officers by publishing a
list of restricted animals which describes them and sets
forth the reasons for their prohibition.
5.Deletes current law making it unlawful to "take" any
mammals which are listed as illegal to possess,
transport, import, or release alive.
6.Removes instructions to the director to appoint a
committee to advise the director on the humane care and
treatment of wild animals. This committee is charged
with making recommendations regarding the enforcement of
prohibitions on such animals, standards for their care
once discovered, and cooperation with local agencies in
enforcing the ban.
7.Deletes from current law all details about what
information must be included in the application for a
permit to possess a restricted animal.
8.Makes various clarifying and technical changes.
COMMENTS:
1.Proponents state that "This is common sense legislation
that will place the regulation of restricted animals with
the proper body, the Fish and Game Commission. This is
more appropriate than determining legalization of any
potential "fad pets" through the legislative process.
The Fish and Game Commission is the appropriate body
because it will be required to consult with the
Department of Food and Agriculture and the Department of
Health Services, and it will be required to consider
effects to agriculture, native wildlife, the public
health or safety, and the welfare of the animal."
2.The proponents further point out that the bill correctly
replaces the term "wild animal" with the term "restricted
animal." "The term 'wild animal' has continually caused
confusion, particularly with regard to domesticated
livestock, pet animals, laboratory animals. and fur
animals." Some of the animals now listed as prohibited
species in California have been termed "domesticated" in
many scientific works, but are restricted in California
because they may also be able to establish wild
populations which threaten native species and because
they are not normally domesticated in this state.
3.Legislation in recent years has sought to remove Mustela
putorius furo, or the domestic ferret, from California's
list of prohibited species. None of these bills have
been approved in the Legislature. Although this bill
does not directly mention the F-word, it would have
significant bearing on how any movement toward ferret
legalization proceeds. The Legislature would no longer
be able to remove ferrets from the list of restricted
species. However, the Fish and Game Commission would
have full authority to legalize ferrets, provided that it
makes a finding that "no damage or detriment will be
caused to agriculture, native wildlife, the public health
or safety, or the welfare of the animal," from legalizing
it. Under current law, the commission may delete an
animal species from the list without making such a
finding. Is it appropriate to impose this new, strict
test before any species can be legalized when all recent
legalization attempts have failed?
4.Current Fish and Game Commission regulations contain a
list of "wild animals" which may not be imported,
transported, or possessed without a permit. Unless these
regulations are changed to designate such animals as
"restricted animals," there would be no regulation of any
species of animal in California once this bill went into
effect.
5.The Fish and Game Commission is charged with the
"protection and propagation of fish and game." While
legalizing or regulating any animal in California is
certain to have an effect on the state's fish and game,
this process often involves decisions over whether a type
of pet is appropriate. This raises the question of
whether animals such as ferrets are more properly thought
of as game or as personal pets. Does this Committee wish
to grant all of the Legislature's powers to determine the
legality of different types of pets to the Fish and Game
Commission?
6.This bill would charge all peace officers with enforcing
the ban on "restricted animals," while at the same time
repealing provisions that direct the commission to guide
enforcement officers by publishing a list of restricted
animals which describes them and sets forth the reasons
for their prohibition. Should the Committee involve a
vastly wider range of peace officers in enforcing species
restrictions while it also provides enforcement officers
with much less information about these species?
7.This bill deletes other provisions such as a prohibition
against "taking" restricted mammals, the establishment of
an advisory committee to recommend enforcement and
treatment procedures for restricted animals, and
guidelines for permit requests. Proponents have offered
no concrete rationale for these deletions. This bill was
amended to include all of its substantive provisions just
over one week before the hearing date, so these deletions
have not seen significant "sunshine." Does the Committee
wish to remove such "clean-up" provisions which are not
critical to the primary focus of the bill so that they
may be adequately reviewed by interested parties?
SUPPORT:
Adubon Society of California
California Waterfowl Association
OPPOSED:
Contra Costa Humane Society
The California Veterinary Medical Association
The Fund for Animals, Inc.
22 individuals