BILL ANALYSIS
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Date of Hearing: April 13, 2010
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
ACA 11 (Bill Berryhill) - As Amended: March 17, 2010
SUBJECT : Hunting
SUMMARY : Proposes to amend the State Constitution to establish
a constitutional right to hunt wildlife in the state.
Specifically, this bill :
1)Proposes to the people of California that the State
Constitution be amended to:
a) Establish a constitutional right of the people to
hunt and fish wildlife, subject only to statutes enacted
by the Legislature and regulations adopted by the Fish
and Game Commission (FGC) to promote wildlife
conservation and management.
b) Require that hunting and fishing, including
traditional methods, shall be a preferred means of
managing and controlling wildlife.
c) State that this section shall not be construed to
modify any provision of law relating to trespass or
property rights.
d) Define "traditional method" to include but not be
limited to bows and arrows and any other method as
determined by FGC.
e) Define "wildlife" to include all species of animals,
including but not limited to mammals, birds, fish,
reptiles, amphibians, mollusks, and crustaceans, that are
regulated by statute or regulation.
EXISTING LAW :
1)The California Constitution, Article 10, Section 4, protects
the right of public access to navigable waters for public
purposes. Court decisions have held that hunting is a
privilege incident to the right of navigation.
2)The California Constitution, Article IV, Section 20,
authorizes the Legislature to provide for division of the
state into fish and game districts and to provide for
protection of fish and game by districts. Creates the FGC and
authorizes the Legislature to delegate to the FGC powers
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related to the protection and propagation of fish and game as
the Legislature sees fit. The Legislature has delegated to
the FGC the power to regulate the taking or possession of
birds, mammals, fish, amphibians and reptiles for recreational
purposes, including the setting of seasons, bag limits, and
conditions on the manner and means of taking. The Legislature
has also enacted numerous statutes regulating hunting,
including, for example, requirements related to hunting
licenses and tags, methods of take, hunter safety and hunting
clubs.
3)The California Constitution, Article 1, Section 25, protects
the right of the people of the state to fish on public lands
and waters, subject to the Legislature's authority to provide
for seasons and conditions for the take of different species
of fish.
FISCAL EFFECT : Unknown
COMMENTS : This bill, if approved by a majority of the voters
of the state, would establish a constitutional right to hunt in
the state. The author indicates that the purpose of this bill
is to provide a constitutional protection for hunting, similar
to the existing constitutional protection for fishing. The
author believes this bill is needed to protect the balance
between outdoor sports and environmental protection, and asserts
it would not compromise existing regulations on hunting and
taking game or affect existing gun laws.
As discussed above, hunting has been recognized by courts as a
privilege incident to the public right of access to navigable
waters. The Legislature has delegated to the FGC and the
Department of Fish and Game (DFG) authority to regulate hunting,
but also has enacted a number of hunting related statutes
directly establishing requirements for hunting licenses and
tags, and placing conditions on the methods of take.
Legislation creating a right to hunt has been introduced in a
number of states over the past several years. Such proposals
have been considered in at least 21 states and passed in a
number of states. The impact of this particular legislation,
were it to be approved by the voters, is uncertain, since the
language states that the right to hunt would be subject to
statutes enacted by the Legislature and regulations adopted by
the FGC. Since the wording of the amendment would be subject to
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interpretation by the courts, this bill could nevertheless
impact implementation of other laws designed to manage wildlife
species for conservation or biodiversity purposes, since these
laws could be subject to a stricter scrutiny test as limitations
on a constitutional right. This amendment could also be
interpreted as granting new defenses for individuals cited with
violation of various fish and game laws.
This bill further requires that hunting and fishing shall be a
preferred means of managing and controlling wildlife. The
impact of this language is also unclear, since hunting and
fishing are not the only methods of managing and controlling
wildlife currently recognized in law and regulation. While in
some cases hunting is an appropriate and recognized means of
managing wildlife, in other instances scientific analysis may
indicate that alternative methods of managing and controlling
wildlife, and for overall ecosystem management and biodiversity
conservation, are preferable. This bill would establish a
constitutional preference for hunting as a preferred method of
management, and perhaps even as the preferred method, regardless
of what the science may indicate is needed for particular
species or ecosystems.
This bill also creates a constitutional right to hunt wildlife,
as opposed to game species. Wildlife is defined in the bill to
include all species of animals, including non-game species.
This provision could restrict the ability of the Legislature or
FGC to prohibit hunting of non-game species, and potentially to
place restrictions on the geographic areas where hunting is
permitted.
The committee may also wish to consider whether there is
currently a specific problem that this bill would address, since
neither the Legislature nor the FGC have sought to prohibit
hunting. DFG promotes hunting on state wildlife management
areas, and several current state and federal programs encourage
conservation of lands providing public access for hunting.
Finally, this constitutional amendment if adopted would likely
preempt local ordinances that restrict hunting, since it states
that the right to hunt would be subject only to statutes enacted
by the Legislature and regulations of the FGC. The Legislature
and this committee have previously considered other bills on
state preemption of local ordinances affecting hunting or
fishing, with exceptions for public safety, including AB 979 (T.
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Berryhill) which is currently pending in the Senate.
Related Legislation : The author of this bill has also
introduced AB 2427, which is pending hearing in this committee.
AB 2427 prohibits the FGC from imposing an absolute prohibition
on hunting but would amend statute rather than the Constitution.
Arguments in Support : Supporters assert this bill is needed to
prevent increasing efforts to restrict or ban hunting
activities, and cite examples such as past legislative proposals
to ban mourning dove hunting and to prohibit use of dogs for
hunting mammals. Supporters also object to language in the
Fish and Game Code defining hunting as a "privilege" and seek to
clarify that hunting is a constitutionally protected right,
noting that fishing already is constitutionally protected and is
a closely related activity to hunting. Supporters assert that
hunters should have the same constitutional rights as fishermen.
They further assert that hunting is more than a recreational
activity but is also a longstanding cultural practice that
includes hunting for food.
Arguments in Opposition : Several animal rights organizations
oppose this bill and assert wildlife belongs to all citizens,
not just hunters, and is held in trust for them by the state.
They note 99% of Californians do not hunt and want wildlife
protected. Born Free USA notes hunting is already protected by
law and there has never been any attempt by the Legislature or
the FGC to outright prohibit hunting. They argue this
legislation could be interpreted to prohibit the Legislature
from regulating hunting practices based on public safety and
animal welfare. The Humane Society notes the Constitution
already grants power to the FGC to regulate fishing and hunting
and argues there is no compelling need for this bill. They also
object that this bill would likely preempt local governments
from adopting restrictions relating to hunting.
REGISTERED SUPPORT / OPPOSITION :
Support
California Rifle and Pistol Association (co-sponsor)
National Rifle Association (co-sponsor)
California Fish and Game Commission
California Outdoor Heritage Alliance
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Outdoor Sportsmen's Coalition of California
Safari Club International
The California Sportsman's Lobby
Several individuals
Opposition
Born Free USA
California Animal Association
California Federation for Animal Legislation
Friends of Auburn/Tahoe Vista Placer County Animal Shelter
Humane Society of the United States
Legal Community Against Violence
Ojai Wildlife League
Several individuals
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096