BILL ANALYSIS
AB 979
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
AB 979 (Berryhill) - As Amended: April 2, 2009
SUBJECT : Hunting or Fishing: Local Regulation
SUMMARY : Declares that the state fully occupies the fields of
hunting and fishing, and that all local regulations are subject
to that provision. Specifically, this bill :
1)States legislative findings and declarations regarding a prior
court decision prohibiting local governments from regulating
or interfering with fish and game matters, and the
Legislature's delegation to the Fish and Game Commission (FGC)
of certain powers relating to management and regulation of the
taking of fish and game.
2)States legislative findings and declarations regarding the
safety of hunting and fishing and state regulation of those
activities, and declares that additional local regulation is
both unnecessary and impedes administration of fish and game
laws.
3)States legislative intent that exclusive legal authority be
granted to the FGC and the Department of Fish and Game (DFG)
regarding the taking and possession of fish and game to ensure
statewide control.
4)States legislative intent to, in rare and limited instances,
allow local ordinances to affect the taking of fish and game
where such ordinance is both necessary for public health and
safety and only incidentally affects hunting and fishing.
Provides that such ordinances shall not indiscriminately
extend to any areas where hunting or fishing may take place
without endangering public health and safety, and shall not
apply to state or federal lands or waters.
5)Declares that the state fully occupies the field of hunting
and fishing pursuant to the Fish and Game Code, regulations
adopted by the FGC, and Section 20 of Article IV of the
California Constitution, and that all local ordinances are
subject to this section.
AB 979
Page 2
6)Requires the FGC, DFG and any other governmental entity
legally authorized to affect the taking of fish and game on
navigable waters held in public trust to ensure that the
fishing and hunting rights of the public guaranteed under the
constitution are protected.
7)Provides that unless otherwise expressly authorized by state
or federal law, the FGC and DFG are the only entities in this
state that shall adopt or promulgate regulations regarding the
taking of fish and game on any lands or waters within the
state, except that a private landowner may restrict the taking
of fish and game on property owned in fee title during the
period of ownership.
1)EXISTING LAW :
a) Authorizes the Legislature, in Article IV, Section
20 of 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.
b) Guarantees, in Article 1, Section 25 of the
California constitution, the right of the people to fish
upon and from public lands and waters of the state, but
reserves to the Legislature the authority to provide for
seasons and conditions under which different species of
fish may be taken.
c) Guarantees, in Article 10, Section 4 of the
California Constitution, public access to the navigable
waters of the state.
d) Gives local governments authority, under Article XI,
Section 7 of 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.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose : The author states that this bill's general purpose is
to ensure comprehensive, biologically-based control over the
management of fish and game by keeping local governments from
regulating fish and game matters unless required for public
AB 979
Page 3
safety reasons. According to the author, some cities and
counties have passed ordinances restricting the otherwise legal
taking of fish or game in areas where such taking was not a
public safety threat. The author cites as examples an ordinance
adopted by the City of Hercules to ban hunting of waterfowl
within the city limits and extending out into San Francisco Bay,
and a Placer County ordinance prohibiting the carrying or
discharge of firearms in unincorporated areas of the county.
Legal background : Local ordinances are invalid if they attempt
to impose requirements in a field that is preempted by state
law. Local ordinances may be preempted where the Legislature
adopts a general scheme for regulation that indicates an intent,
expressly or impliedly, by the state to occupy a particular
field to the exclusion of local laws. The California
Constitution, Article XI, Section 7, gives local governments
broad police powers. The California Constitution, as amended in
1902, also authorizes the Legislature to provide for the
division of the state into fish and game districts and to enact
such laws for the protection of fish and game as it deems
appropriate. The California Supreme Court in In re Makings
(1927) 200 Cal. 174 held that the purpose of this amendment was
to take from local authorities the right to regulate fish and
game and to invest such power exclusively in the state.
In a 1986 opinion, the Attorney General analyzed both of these
constitutional provisions and opined that a county may by
ordinance adopt laws regulating certain methods of hunting
within its jurisdiction, where such action is necessary to
protect public health and safety, and where the local ordinance
only incidentally affects the field of hunting. The particular
ordinance in question banned steel-jawed leg-hold traps.
Attorney General opinions are persuasive authority but not
binding on courts.
The Attorney General opinion relied in part on the reasoning of
the Court of Appeal in People v. Mueller (1970) 8 Cal.App.3d
949. The court in that case found a local ordinance regulating
fishing to be valid, and held that if the primary purpose of the
ordinance is the protection of public health and safety, and the
ordinance affects hunting and fishing only incidentally, the
ordinance is a valid exercise of the local police power.
Prior Related Legislation : AB 815 (Berryhill) of the 2007/2008
session, among other things, declared that the state has fully
AB 979
Page 4
occupied the field of fish and game, and prohibited a city or
county from adopting an ordinance or regulation within its
jurisdiction that affects the taking of fish and game unless the
ordinance is both necessary to protect public health and safety
and has only an incidental effect upon the field of fish and
game. AB 815 was vetoed by the Governor.
Issues : Rights of other public agencies to restrict hunting on
lands they own or control: This bill in subsection (c) of
Section 1021 provides that unless otherwise expressly authorized
by state or federal law, the FGC and DFG are the only entities
in the state that shall regulate the taking of fish and game on
any lands or waters within the state. Existing law already
expressly prohibits hunting in state parks, except where allowed
in certain state recreation areas. However, this provision of
AB 979 raises the question of whether other governmental
entities, such as state conservancies or regional park districts
should be allowed to restrict hunting on lands they own or
control that are otherwise open to the public for other
recreational uses such as hiking and picnicking. In the absence
of express state statutory authority to do so, this bill would
prohibit such entities from imposing any restrictions on hunting
on lands they own or control.
There are several provisions in existing law that authorize
conservancies or regional park districts to adopt ordinances
regulating activities on public lands they own or control,
however, these laws do not expressly authorize them to restrict
hunting on those lands. For example, Public Resources Code
Section 5541 authorizes regional park districts to control and
operate a system of public parks, playgrounds, trails, natural
areas, ecological and open space preserves, beaches, and
parkways, but does not expressly authorize them to restrict
hunting in those areas. Similarly, Public Resources Code
Section 5558 authorizes the East Bay Regional Park District to
adopt all regulations necessary for administration, governance,
protection, and use of properties belonging to the district or
under its control, but does not expressly reference regulations
restricting hunting on those lands. Public Resources Code
Section 33211.5 provides that with regard to lands held by the
Santa Monica Mountains Conservancy (SMMC) the types of uses and
management policies affecting those uses shall be consistent
with the policies for permitted uses of lands within the state
park system. As explained above, state law generally prohibits
hunting within state parks, so this would presumably mean that
AB 979
Page 5
hunting would also be prohibited within SMMC managed lands.
However, it is not clear whether Section 33211.5 would be
interpreted under this bill as an express authorization for the
SMMC to prohibit hunting in SMMC managed lands. For these
reasons, staff recommends that the committee adopt an amendment
striking the word "expressly" on page 3, line 26. The committee
may also wish to consider whether language should be added
recognizing the authority of other public agencies, such as
local park and open space districts and state conservancies, to
restrict hunting on properties they own or manage that are open
to the public.
Section 1020(b) on page 2 states that it is the intent of the
Legislature to affirm, subject to applicable federal law, the
exclusive legal authority granted to FGC and DFG with regard to
the taking and possession of fish and game and thereby ensure
necessary comprehensive statewide control by FGC and DFG over
all fish and game matters for wildlife conservation purposes and
the protection of, and access to, hunting and fishing
opportunities for the public. In recognition of other existing
state laws that apply to hunting, such as the state law
prohibiting hunting in state parks , Staff recommends that the
committee amend the phrase on page 2 line 30 to read: "subject
to applicable state and federal law."
Placement of local ordinance public safety provision: The April
2, 2009 amendments add clarifying language in the legislative
intent portion of the bill recognizing local authority over
public health and safety, and stating legislative intent to
allow "a local ordinance to affect the taking of fish and game
within the territorial jurisdiction of the local agency, if the
ordinance is both necessary to protect public health and safety
and only incidentally affects the state preempted field of
hunting and fishing. The ordinance shall not indiscriminately
extend or apply to any area in which the taking of fish and game
may occur in a manner that does not endanger public health and
safety or to any lands or waters owned or managed by the state
or federal government." The committee may wish to consider
whether language recognizing local authority to adopt ordinances
to protect public health and safety should be inserted in the
operative section of the bill, Section 1021, rather than just in
the legislative intent section. For instance, the following
language could be added as a new subsection (d) to Section 1021:
"Nothing in this section prohibits a local, regional or state
agency or district from adopting an ordinance that affects the
AB 979
Page 6
taking of fish and game within the territorial jurisdiction of
the agency or district if the ordinance is both necessary to
protect public health and safety and only incidentally affects
the state preempted field of hunting and fishing."
Restrictions on hunting on private lands: This bill provides
that subdivision (c) of Section 1021 does not prohibit a private
landowner from restricting the taking of fish and game on
property that he or she owns in fee title, but only during the
period of ownership. This means that a private property owner
who desires to convey their land to a conservancy or nonprofit
organization for conservation purposes could not include any
deed restriction on hunting on the property that applied
prospectively. This provision would also prohibit private land
owners who own property interests that are other that fee title
from placing any restrictions on hunting on their property. It
is unclear how this provision would affect conservation
easements, some of which, depending on the specific purpose of
the easement and other uses of the land might be incompatible
with hunting. Since the exact meaning of this phrase is
ambiguous, it could result in litigation in order to interpret
its meaning. In addition, it is unclear why this provision
should be limited to private landowners, and not also include
public landowners such as park and open space districts. For
these reasons, staff recommends that the committee adopt an
amendment to this sentence, on page 3, lines 30-33, as follows:
"This subdivision does not prohibit a private landowner or his
or her the landowner's designee from restricting the taking of
fish and game on property in which the landowner has an
ownership interest that he or she owns in fee title, during the
period of ownership ."
Arguments in Support : Supporters of this bill assert that local
ordinances which adversely affect lawful hunting and fishing
activities are inappropriate, can be in conflict with state law,
and may not be based on valid concerns for public safety.
Statewide control over hunting and fishing activities will
ensure comprehensive, biologically-based management, prevent
duplicative or contradictory regulations, and ensure public
access for these activities. Supporters assert this bill will
ensure that hunting and fishing rights are not arbitrarily taken
away by local governments that lack biological or game
management expertise. Supporters also note that opportunity
hunt and fish is a prime motivation for landowners to protect
wildlife habitat for conservation, and without assurances that
AB 979
Page 7
hunting or fishing will be permitted on their lands many
landowners would not participate in state or federal
conservation easements or other wildlife enhancements.
Arguments in Opposition : Opponents of this bill believe cities
and counties should retain the right to oversee lands within
their jurisdiction, and that the breadth and vagueness of terms
in this bill will have a chilling effect on adoption of local
ordinances to protect public safety. They also argue this bill
elevates hunting and fishing over other public uses and
interests. In addition, some opponents assert this bill would
prohibit cities and counties from adopting or enforcing
ordinances regulating the use of traps which result in the
capture of non-target animals, including family pets. AB 815 of
last session was amended to exclude traps but this bill does not
include such an exemption. The California Animal Association, a
coalition of eleven state and national animal protection groups,
asserts this bill may have unintended consequences and eliminate
the ability of local governments to enact laws to protect
wildlife and their citizens. Regional parks and open space
districts oppose this bill due to concerns it would remove their
ability to restrict hunting in the parks, preserves and other
open space lands they manage, where hunting may be in conflict
with other well established public uses, threaten public safety,
and impose fiscal costs on the districts for increased staffing
and enforcement.
REGISTERED SUPPORT / OPPOSITION :
Support
California Outdoor Heritage Association (Sponsor)
California Rifle and Pistol Association
California Fish and Game Wardens' Association
Foundation for North American Wild Sheep
Golden Gate Chapter, Safari Club International
Outdoor Sportsmen's Coalition of California
Safari Club International
Sportsmen's Council of Central California
The California Sportsman's Lobby
Opposition
American Society for the Prevention of Cruelty to Animals
AB 979
Page 8
Animal Place
Born Free USA
California Animal Association
East Bay Regional Park District
Food Empowerment Project
League of Humane Voters
Legal Community Against Violence
Midpeninsula Regional Open Space District
Monterey Peninsula Regional Park District
Orange County People for Animals
Paw Pac
People for the Ethical Treatment of Animals
San Diego Animal Advocates
The Humane Society of the United States
The Paw Project
United Animal Nations
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096