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 979 HEARING DATE: July 6, 2009
AUTHOR: Tom Berryhill URGENCY: No
VERSION: July 1, 2009 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Hunting or fishing: local regulation.
BACKGROUND AND EXISTING LAW
The state constitution authorizes the Legislature to delegate to
the Fish and Game Commission the power to protect and propagate
fish and game. The Legislature delegated this responsibility to
the Commission which must act in accordance with state fish and
game laws. The constitution also guarantees the right to fish on
public lands and waters of the state and prohibits laws to
impede access to these lands for the purpose of fishing.
The constitution confers on local governments the authority to
make and enforce, within their jurisdictions, ordinances to
provide police, sanitary, and other public welfare protections
that do not conflict with general law.
PROPOSED LAW
This bill makes several findings regarding the Legislature's
jurisdiction over fish and game matters. It cites case law,
Attorney General opinions, and the state constitution to support
the contention that the regulation of fish and wildlife is
basically a matter for state, not local, government. This bill
would formally declare that the state fully occupies the field
of hunting and fishing except for the narrow circumstances
described immediately below.
This bill would pre-empt a city or county from adopting an
ordinance or regulation that affects the taking of fish and game
within its jurisdiction unless the ordinance or regulation is
both necessary for public safety and has only an incidental
impact on the field of hunting and fishing.
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The bill also directs that the Fish and Game Commission consider
the public's access to navigable waters and the right to hunt
and fish when promulgating regulations. Private and public
property owners are specifically entitled to restrict public
access or public use on their property.
ARGUMENTS IN SUPPORT
The supporters of this measure, mainly associations of hunters,
argue that the law on this topic is found mainly in the
constitution, court opinions, and formal opinions of the
California Attorney General, and as such, are not as easily
accessible to the public as are codified statutes. A major
interest of the sponsors is providing what they consider to be
established law in a more accessible form to the public.
Additionally, the supporters point to sporadic attempts by local
government to regulate fish and game matters that are adopted,
in part, as a reaction to a local issue, and in part, because
there is no definitive statutory language on this topic that
demonstrates that the state has pre-empted the regulation of
wildlife.
According to the author and the supporters, the benefit of this
proposed law would be to avoid piecemeal regulation of hunting
and fishing, and to maintain this regulatory authority at the
Department of Fish and Game and the California Fish and Game
Commission. The supporters believe that a uniform process for
setting fish and game regulations will ensure better management
decisions for public trust resources.
The California Council of Land Trusts adds that the bill
balances state control over wildlife regulation while
simultaneously protecting the rights of private landowners,
nonprofits, and others to regulate public access and public use
on their lands.
ARGUMENTS IN OPPOSITION
The San Francisco Rescued Orphan Mammal Program opposes the bill
for several reasons: It does not accept the view that this bill
re-states existing constitutional, case-law, and opinions of the
Attorney General. Instead, it believes that this bill changes
the status quo by prohibiting local ordinances. It believes that
local governments should retain the right to enact ordinances
that are more restrictive than state law. It also disagrees with
the accuracy of some of the bill's findings and declarations
such as the finding touting the overall safety record of
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recreational hunting.
The opposition also argues that the bill would effect existing
provisions in state law that give local governments some
authority in setting hunting seasons. One such example is a
provision that allows boards of supervisors to veto proposed
antlerless (young) deer hunting seasons in a given county. This
is an existing provision of state law that staff observes would
seem to be recognized by the bill, if implemented into law. (See
Sec. 1021 (c) (1)).
The opposition's major point is that local ordinances,
regardless of whether they are authorized by state law, should
be permissible. Staff observes that the bill does allow local
ordinances for public safety purposes that have little effect on
the regulation of hunting.
California Federation for Animal Legislation opposes the bill
for unspecified reasons.
COMMENTS
This bill is substantially similar to AB 815 from 2008 that
received a generic veto. That bill contained an exemption from
the state preemption of hunting and fishing that would have
allowed local ordinances that regulate trapping. The Committee
may wish to add that amendment to the bill.
SUGGESTED AMENDMENTS
AMENDMENT 1
Page 4, line 6, new (d): Local ordinances and regulations that
regulate trapping are not subject to this section.
AMENDMENT 2-AUTHOR'S AMENDMENT
The author has informed the committee that he prefers a
modification to Section 1021 (c) (2), which begins on page 4,
line 10 of the bill, and would state as follows:
1021 (c)(2) Nothing in this section or Section 1020 prohibits a
public or private landowner, or the landowner's designee, from
regulating public access or enforcing reasonable safety measures
public use on property that the landowner owns in fee, leases,
manages, holds an easement in upon, or is otherwise lawfully
authorized to control s for those purposes, in a manner
consistent with state law.
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SUPPORT
California Chapter Foundation for North American Wild Sheep
California Council of Lands Trusts
California Fish and Game Wardens' Association
California Outdoor Heritage Alliance
California Waterfowl Association
Fish and Game Commission
San Diego County Wildlife Federation
Suisun Resource Conservation District
The Mule Deer Foundation
California Waterfowl Association
OPPOSITION
San Francisco Rescued Orphan Mammal Program
Animal Switchboard
California Federation for Animal Legislation
1 Individual
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