BILL ANALYSIS
AB 979
Page 1
ASSEMBLY THIRD READING
AB 979 (Tom Berryhill)
As Amended May 18, 2009
Majority vote
WATER, PARKS & WILDLIFE 7-4APPROPRIATIONS 14-0
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|Ayes:|Huffman, Fuller, |Ayes:|De Leon, Nielsen, Charles |
| |Anderson, Chesbro, | |Calderon, Davis, Duvall, |
| |Tom Berryhill, Fletcher, | |Fuentes, Hall, Harkey, |
| |Salas | |Miller, John A. Perez, |
| | | |Price, Solorio, |
| | | |Audra Strickland, |
| | | |Torlakson |
|-----+--------------------------+-----+--------------------------|
|Nays:|Blumenfield, Krekorian, | | |
| |Bonnie Lowenthal, John A. | | |
| |Perez | | |
| | | | |
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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)Makes 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)Makes 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)Declares that the state fully occupies the field of hunting
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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 and
regulations are subject to this section.
5)Provides that nothing in this bill precludes a city or county
from adopting an ordinance or regulation that indirectly
impacts the taking of fish and game, if the ordinance is both
necessary for public health and safety and only indirectly
impacts the field of hunting and fishing preempted by state
law, and provided the ordinance does not indiscriminately
extend or apply to areas where the taking of fish and game may
occur without endangering public health or safety or to any
lands or waters owned or managed by the state or federal
government.
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.
8)Provides that nothing in this bill prohibits a landowner,
including a regional park or open-space district on land the
district owns in fee, leases, manages, or holds an easement
in, from restricting the taking of fish and game on property
in which the landowner has an ownership interest.
EXISTING LAW :
1)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.
2)Guarantees, in Article 1, Section 25 of the California
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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.
3)Guarantees, in Article 10, Section 4 of the California
Constitution, public access to the navigable waters of the
state.
4)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 : Negligible costs to the FGC and DFG.
COMMENTS : The author states 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
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.
Under existing law, 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 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.
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The Attorney General (AG) in a 1986 opinion 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. AG
opinions are persuasive authority but not binding on courts.
The AG 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.
AB 815 (Berryhill) of the 2007/2008 session similarly declared
that the state has fully 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.
Supporters of AB 979 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. Supporters believe
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 AB 979 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 to
hunt and fish is a prime motivation for landowners to protect
wildlife habitat for conservation, and without assurances that
hunting or fishing will be permitted on their lands many
landowners would not participate in state or federal
conservation easements or other wildlife enhancements.
Opponents of AB 979 believe cities and counties should retain
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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 AB 979 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 was amended to exclude traps but
AB 979 does not include such an exemption. Concerns raised by
other opponents were addressed by amendments clarifying the
authority of cities and counties to adopt ordinances for public
safety, and clarifying the right of landowners, including
regional and open-space districts, to restrict the taking of
fish and game on properties in which they have an ownership
interest.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096
FN: 0000911