BILL ANALYSIS
AB 2427
Page 1
Date of Hearing: April 13, 2010
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
AB 2427 (Bill Berryhill) - As Introduced: February 19, 2010
SUBJECT : Hunting
SUMMARY : Prohibits the Fish and Game Commission (FGC) from
imposing an absolute prohibition on hunting or taking game.
Specifically, this bill :
1)Provides that with regard to the existing statutory delegation
to the FGC of the power to regulate the taking or possession
of birds, mammals, fish, amphibians, and reptiles, no power is
delegated to the FGC to impose an absolute prohibition on
hunting or taking game. Further provides that this does not
prohibit the FGC, in accordance with Section 20 of Article IV
of the California Constitution, from imposing conditions
necessary for the protection and propagation of game.
2)Prohibits policies of the Department of Fish and Game (DFG)
from including an absolute prohibition on hunting or taking
game.
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)Provides in the Fish and Game Code for the issuance of hunting
licenses granting the privilege to take birds and mammals.
Authorizes hunting licenses to be issued to any resident of
the state upon payment of a fee and completion of a hunter
education course.
3)Establishes, seasons, locations, bag limits, and other
conditions for the hunting of game.
4)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
AB 2427
Page 2
authorizes the Legislature to delegate to the FGC powers
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.
5)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 : Nonfiscal.
COMMENTS : The author indicates that this bill is being
introduced for the purpose of protecting the balance between
outdoor sports and environmental protection by preventing the
FGC or DFG from imposing an absolute ban on hunting. The
author believes that this bill does not compromise existing
regulations or effect existing gun laws, and asserts this bill
is necessary because there is currently no statute that
prohibits DFG or FGC from imposing an outright ban. The author
also notes that hunting is a traditional recreational
opportunity that is part of California's heritage, is an
important wildlife management tool, and contributes to
sustainable wildlife populations and to California's economy,
and for these reasons it is important that hunting be preserved.
The actual legal affect of the language in this bill is
uncertain for several reasons. Specifically, it is unclear what
the term "absolute prohibition" as used in this bill means.
For instance, it could mean that the FGC is prohibited from
imposing a statewide prohibition on hunting, which would clearly
be an absolute prohibition because hunting would not be allowed
anywhere in the state. Alternatively, it could mean that the
FGC is prohibited from imposing an absolute prohibition on
hunting in any specific area of the state. This would mean that
the FGC could not prohibit hunting in, for example, wildlife
AB 2427
Page 3
sanctuaries, state parks, marine protected areas, or in other
areas protected by conservation easements where hunting may be
incompatible with the conservation objectives of the refuge or
conservation area. Third, it could mean that the FGC would not
have authority to prohibit hunting of particular species, since
such a prohibition could be interpreted as an absolute
prohibition on hunting of that species. Terms that are vague or
undefined may be subject to differing interpretations and
therefore lead to litigation.
The provision in subsection (c) of the bill, which states that
this bill does not prohibit the FGC from imposing conditions
necessary for the protection and propagation of game, may not
cure these problems for several reasons. First, this clause
implies that the FGC could place conditions on but not prohibit
hunting to protect a game species, even if a prohibition was
necessary to protect the survivability of the species. It is
conceivable that the population of a game species could fall so
low, perhaps due to loss of habitat or other factors, that
cessation of hunting may be necessary for the population to
recover, even if on only a temporary basis. Secondly, this
clause would allow FGC to impose conditions necessary for
protection and propagation of game, but not for public health
and safety reasons, or for larger ecosystem sustainability
purposes. With regard to the latter concern, it is conceivable
that restrictions may be needed on hunting of some species due
to their role in the larger ecosystem and not just for
protection and propagation of game. Third, this exception
applies only to game species, leaving an ambiguity as to the
FGC's ability to regulate or prohibit hunting of non-game
species.
Finally, the committee may wish to consider whether there is
actually an existing problem this bill seeks to cure, since
committee staff is unaware that there has ever been any proposal
by the FGC to place an absolute prohibition on hunting in this
state. The FGC has adopted a number of policies to promote and
encourage hunting, and even has a standing committee, the Al
Tauscher Committee, to advise the FGC on hunting matters. The
Al Tauscher Committee is described on the FGC website as "a
working group of constituent representatives selected by the
Fish and Game Commission to develop strategies to maintain
and/or enhance hunting and sport fishing opportunities in
California."
AB 2427
Page 4
Related Legislation : The author of this bill also introduced
ACA 11, which, if approved by the voters, would create a
constitutional right to hunt and also prohibit the FGC or the
Legislature from placing an absolute prohibition on hunting.
ACA 11 was heard in this committee on April 13th and failed
passage.
Arguments in Support : Supporters assert this bill is consistent
with the function of FGC to regulate hunting activities in a
manner that is consistent with good conservation and wildlife
management practices based on sound scientific principles.
While acknowledging that current and previous commission members
have generally operated according to these principles, they
believe passage of this bill would be prudent to assure that
future commission members will not act arbitrarily to completely
ban all hunting or any single form of hunting.
Arguments in Opposition : Opponents generally assert this bill
is unnecessary as the ability of the people to hunt and fish is
already protected, and the FGC's regulatory decisions are made
with public input. They further assert this bill could handcuff
the FGC's ability to take actions necessary to protect and
sustain viable habitat and wildlife populations, and increase
litigation costs for the state as a result of lawsuits which may
be filed over whether a particular FGC or agency decision
amounts to an absolute ban under the bill, either temporary or
permanent.
REGISTERED SUPPORT / OPPOSITION :
Support
California Rifle and Pistol Association (co-sponsor)
National Rifle Association (co-sponsor)
California Outdoor Heritage Alliance
California Sportsman's Lobby
Outdoor Sportsmen's Coalition of California
Safari Club International
Opposition
Humane Society
Paw PAC
Sierra Club California
AB 2427
Page 5
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096