BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: AB 708 HEARING DATE: June 23, 2009
AUTHOR: Huffman URGENCY: No
VERSION: June 17, 2009 CONSULTANT: Marie Liu
DUAL REFERRAL: Public Safety FISCAL: Yes
SUBJECT: Fish and wildlife: poaching.
BACKGROUND AND EXISTING LAW
Division 9 of the Fish and Game Code (12000 et seq) establishes
penalties for violations of the Fish and Game Code. Many of the
violations are punishable by a fine of not more than $1,000, six
months imprisonment, or both the fine and imprisonment. Certain
violations are subject to a penalty of not more than $2,000 and
up to one year in jail, including, for example, unlawful taking
or possession of wildlife within a game refuge. The knowing or
intentional taking of mammals, birds or fish in excess of
quantity, size or sex limitations is subject to a minimum fine
of $250 for a first violation, $500 and not less than 30 days in
jail for a second or subsequent violation, and a maximum fine of
$2,000 and up to one year in jail. Taking of a mammal or bird
without a hunting license as required is similarly subject to a
minimum fine of $250, and a maximum fine of $2,000 and up to one
year of imprisonment.
Section 12012 of the Fish and Game Code requires that the
unlawful taking of mammals, birds, amphibians, reptiles, and
fish for import, export, sale, purchase, barter, trade,
exchange, or possession for profit or personal gain, be
punishable by a fine no greater than $30,000, imprisonment for a
year, or both fine and imprisonment. Furthermore, persons
punished for unlawful take is prohibited from taking wildlife
for at least one year and any of his or her existing licenses,
permits, or tags are immediately revoked by 12013. On the third
or subsequent conviction for the unlawful take of species within
a five-year period, persons are prohibited from taking any
wildlife for three years.
Section 12157 allows or requires, depending on the violation, a
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judge to seize any device that is capable of or designed to take
wildlife if the user is convicted of violating the fish and game
statutes.
Section 13003 requires that most fines for violations of the
fish and game code be divided equally between the Fish and Game
Preservation Fund, where it can be used to pay for the costs of
legal action, and the county in which the offense occurred.
Section 13100 requires deposits to the county to be expended for
the protection, conservation, propagation, and preservation of
fish and wildlife.
PROPOSED LAW
This bill would establish minimum fines and increase maximum
fines for the illegal or excessive take of wildlife or torture
of wildlife. Specifically, this bill would:
For the illegal take of wildlife for profit or personal gain:
o Establish a fine between $5,000 and $40,000 and/or
one year imprisonment for first convictions.
o Establish a fine between $10,000 and $50,000 and/or
one year imprisonment for second and subsequent
convictions.
o Require that 50% of the revenue from these fines to
be given to the office that brought the action, whether
it is the Attorney General, city attorney, city
prosecutor, or district attorney.
o Require that 25% of the revenue from these fines (or
50% of the revenues that are deposited in the Fish and
Game Preservation fund) be allocated for DFG's law
enforcement purposes.
o Specify that these fines do not replace the existing
fines regarding the illegal take of bear parts and
abalone.
For the illegal take of more than three times the daily bag
limit, the possession of more than three times the possession
limit, or the malicious or intentional maiming or torturing of
wildlife:
o Establish a fine between $5,000 and $40,000 and/or
one year imprisonment for the first conviction
o Establish a fine between $10,000 and $50,000 for
subsequent violations
o Require that 50% of the revenues from these fines
shall be paid to the office that brought the action,
whether it is the Attorney General, city attorney, city
prosecutor, or district attorney.
Allow the Department of Fish and Game to suspend or
permanently revoke a person's hunting or fishing license or
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permit if convicted of illegal or excessive take.
Specifically allow a judge to order the forfeiture of
equipment used in conjunction with illegal or excessive take.
Make findings regarding the recent increase of poaching, the
inadequacy of current fine levels, the scarcity of wardens for
enforcements, and the economic impact of poaching.
ARGUMENTS IN SUPPORT
The author states, "Not since the early 1900s has the state
experienced such high levels of poaching. The most recent
statistics show that between 2005 and 2007, poaching-related
violations increased by 25 percent. California is particularly
susceptible to poaching because the current fines and penalties
for poaching violations have proved insufficient to serve as an
effective deterrent. Currently, there are no minimum mandatory
fines for serious poaching violations and according to the
Department of Fish and Game (DFG) many violators are fined only
very small amounts- and not enough to deter a poacher that is
financially profiting from the activity. Also California has
less than 300 game wardens on active duty which is not
sufficient to patrol a state with thousands of miles of
mountains and coastline."
ARGUMENTS IN OPPOSITION
None received.
COMMENTS
Case in point : Last year, one of the state's most significant
poaching cases illustrates perhaps the inadequacy of current
fines and penalties for violations of the Fish and Game Code.
Peter Ignatius Ciraulo of Gilroy was found in possession of 335
dead birds, including non-game, protected species, and seven
live and crippled snow geese. He ultimately pleaded no contest
to three violations: possession of waterfowl over the bag limit,
failure to declare the take of a migratory game bird, and
failure to show game to a warden upon demand. While this case
was seen as one of the worse poaching cases this century,
Ciraulo was penalized only with a $7,105 fine, two years
probation, 100 hours of community service, and a one-year ban
from hunting in California.
Consistency in second and subsequent violations of illegal take
for profit or personal gain: This bill increases the fine for
second violations of illegal take to a minimum of $10,000 and a
maximum of $50,000. However, second or subsequent violations of
illegal take involving gill nets or bear parts would remain
capped at $30,000. The committee may wish to raise the maximum
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for violations involving gill nets to $50,000, which would be
consistent with the rest of the bill, and delete the language
regarding bear parts as it is repetitive of 12005 of existing
law. [See amendment 1 and 2]
Clarity needed on the allowed uses of fine revenues sent to the
county. This bill would send 50% of the revenue from fines on
illegal and excessive take to the office which brought the
charges whether it is the Attorney General, city attorney, city
prosecutor, or district attorney. This bill does not restrict
the use of the revenue by that office, so that the revenues may
be spent on activities completely unrelated fish and wildlife.
According to the author's office, this provision is meant to
provide an incentive for a city or district attorney to
prosecute violations of the Fish and Game Code.
In contrast, current law requires 50% of fine revenues to go to
the county in which the violation occurs (13003) and the county
must expend the funds for the protection, conservation,
propagation, and preservation of fish and wildlife
(13100-13103). Specific uses include the temporary emergency
treatment and care of injured or orphaned wildlife, public
education, and costs incurred by the district attorney or city
attorney in investigating and prosecuting civil and criminal
actions for violations of the Fish and Game Code.
If the committee finds that it is a desirable and beneficial
policy to keep a nexus between the uses of fine revenues and the
protection of fish and wildlife, but still provide an incentive
to prosecute violations of the Fish and Game Code, this bill may
be amended so that counties continue to receive 50% of the
revenues pursuant to 13003, but that these revenues be first
used to reimburse the costs incurred by the district or city
attorney in investigating violations of the Fish and Game Code.
Excess revenues may be spent for the other uses specified in
13103, such as treatment of injured wildlife, public education,
or even to increase poaching investigations.
[See amendment 3 and 4]
Technical amendment: This bill appears to have a drafting error
in which two subdivisions in Section 12013 were merged. [See
amendment 5]
SUGGESTED AMENDMENTS
AMENDMENT 1
On page 5, line 5, delete "thirty thousand dollars
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($30,000)," and insert "fifty thousand dollars "$50,000)"
AMENDMENT 2
On page 5, delete lines 8 to 13 inclusively
AMENDMENT 3
On page 5, delete lines 30 and 31 inclusively and insert:
to the county in which the offense was occurred, pursuant to
Section 13003. The board of supervisors must first use these
revenues to reimburse the costs incurred by the district
attorney or city attorney in investigating and prosecuting the
violation. Any excess revenues may be spent in accordance with
Section 13103.
AMENDMENT 4
On page 6, delete lines 31 and 32 inclusively and insert
to the county in which the offense was occurred, pursuant to
Section 13003. The board of supervisors must first use these
revenues to reimburse the costs incurred by the district
attorney or city attorney in investigating and prosecuting the
violation. Any excess revenues may be spent in accordance with
Section 13103.
AMENDMENT 5
On page 6, line 13, delete "Nothing in" and insert above
line 14, "(d) Nothing in"
SUPPORT
Audubon California
Born Free USA
California Animal Association
California Outdoor Heritage Alliance
The Humane Society of the United States
Ocean Conservancy
Office of San Francisco Attorney, Kamala D. Harris
OPPOSITION
None Received
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