(1)The California Constitution provides for the delegation to the Fish and Game Commission of powers relating to the protection and propagation of fish and game. Existing statutory law delegates to the commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles in accordance with prescribed laws. Under existing law, the Department of Fish and Wildlife exercises various functions with regard to the taking of fish and game. Under existing law, a city or county has no authority to regulate fish and game except that a city or county may adopt an ordinance that incidentally affects fishing and hunting for the protection of public health and safety.

This bill would provide that the state fully occupies the field of the taking and possession of fish and game. The bill would provide that unless otherwise authorized by the Fish and Game Code, other state law, or federal law, the commission and the department are the only entities that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state.

(2)Existing law requires the commission, when adopting certain regulations relating to the taking or possession of resident game birds, game mammals, and fur-bearing mammals, to consider populations, habitat, food supplies, the welfare of individual animals, and other pertinent facts and testimony.

This bill would require the commission to consider these factors when adopting certain regulations relating to the taking or possession of fish, amphibians, and reptiles. The bill would also require the commission to consider public health and safety when adopting these regulations.

(1)The California Constitution provides for the delegation to the Fish and Game Commission of powers relating to the protection and propagation of fish and game. Existing statutory law delegates to the commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles in accordance with prescribed laws. Under existing law, the Department of Fish and Wildlife exercises various functions with regard to the taking of fish and game. Under existing law, a city or county has no authority to regulate fish and game except that a city or county may adopt an ordinance that incidentally affects fishing and hunting for the protection of public health and safety.

This bill would provide that the state fully occupies the field of the taking and possession of fish and game. The bill would provide that unless otherwise authorized by the Fish and Game Code, other state law, or federal law, the commission and the department are the only entities that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state.

(2)Existing law requires the commission, when adopting certain regulations relating to the taking or possession of resident game birds, game mammals, and fur-bearing mammals, to consider populations, habitat, food supplies, the welfare of individual animals, and other pertinent facts and testimony.

This bill would require the commission to consider these factors when adopting certain regulations relating to the taking or possession of fish, amphibians, and reptiles. The bill would also require the commission to consider public health and safety when adopting these regulations.

(1)The California Constitution provides for the delegation to the Fish and Game Commission of powers relating to the protection and propagation of fish and game. Existing statutory law delegates to the commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles in accordance with prescribed laws. Under existing law, the Department of Fish and Wildlife exercises various functions with regard to the taking of fish and game. Under existing law, a city or county has no authority to regulate fish and game except that a city or county may adopt an ordinance that incidentally affects fishing and hunting for the protection of public health and safety.

This bill would provide that the state fully occupies the field of the taking and possession of fish and game. The bill would provide that unless otherwise authorized by the Fish and Game Code, other state law, or federal law, the commission and the department are the only entities that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state.

(2)Existing law requires the commission, when adopting certain regulations relating to the taking or possession of resident game birds, game mammals, and fur-bearing mammals, to consider populations, habitat, food supplies, the welfare of individual animals, and other pertinent facts and testimony.

This bill would require the commission to consider these factors when adopting certain regulations relating to the taking or possession of fish, amphibians, and reptiles. The bill would also require the commission to consider public health and safety when adopting these regulations.

(1)The California Constitution provides for the delegation to the Fish and Game Commission of powers relating to the protection and propagation of fish and game. Existing statutory law delegates to the commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles in accordance with prescribed laws. Under existing law, the Department of Fish and Wildlife exercises various functions with regard to the taking of fish and game. Under existing law, a city or county has no authority to regulate fish and game except that a city or county may adopt an ordinance that incidentally affects fishing and hunting for the protection of public health and safety.

This bill would provide that the state fully occupies the field of the taking and possession of fish and game. The bill would provide that unless otherwise authorized by the Fish and Game Code, other state law, or federal law, the commission and the department are the only entities that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state.

(2)Existing law requires the commission, when adopting certain regulations relating to the take taking or possession of resident game birds, game mammals, and fur-bearing mammals, to consider populations, habitat, food supplies, the welfare of individual animals, and other pertinent facts and testimony.

This bill would require the commission to consider these factors when adopting certain regulations relating to the take taking or possession of fish, amphibians, and reptiles. The bill would also require the commission to consider public health and safety when adopting these regulations.

(1)The California Constitution provides for the delegation to the Fish and Game Commission of powers relating to the protection and propagation of fish and game. Existing statutory law delegates to the commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles in accordance with prescribed laws. Under existing law, the Department of Fish and Wildlife exercises various functions with regard to the taking of fish and game. Under existing law, a city or county has no authority to regulate fish and game except that a city or county may adopt an ordinance that incidentally affects fishing and hunting for the protection of public health and safety.

This bill would provide that the state fully occupies the field of the taking and possession of fish and game. The bill would prohibit a city or county from adopting an ordinance or regulation relating to the taking or possession of fish and game. The bill would also provide that unless otherwise authorized by the Fish and Game Code or Code, other state law, or federal law, the commission and the department are the only entities that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state.

(2)Existing law requires the commission, when adopting certain regulations relating to the take of resident game birds, game mammals, and fur-bearing mammals, to consider populations, habitat, food supplies, the welfare of individual animals, and other pertinent facts and testimony.

This bill would require the commission to consider these factors when adopting certain regulations relating to the take of fish, amphibians, and reptiles. The bill would also require the commission to consider public health and safety when adopting these regulations.

(1)The California Constitution provides for the delegation to the Fish and Game Commission of powers relating to the protection and propagation of fish and game. Existing statutory law delegates to the commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles in accordance with prescribed laws. Under existing law, the Department of Fish and Wildlife exercises various functions with regard to the taking of fish and game. Under existing law, a city or county has no authority to regulate fish and game except that a city or county may adopt an ordinance that incidentally affects fishing and hunting for the protection of public health and safety.

This bill would provide that the state fully occupies the field of the taking and possession of fish and game. The bill would prohibit a city or county from adopting an ordinance or regulation relating to the taking or possession of fish and game. The bill would also provide that unless otherwise authorized by the Fish and Game Code or other state or federal law, the commission and the department are the only entities that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state.

(2)Existing law requires the commission, when adopting certain regulations relating to the take of resident game birds, game mammals, and fur-bearing mammals, to consider populations, habitat, food supplies, the welfare of individual animals, and other pertinent facts and testimony.

This bill would require the commission to consider these factors when adopting certain regulations relating to the take of fish, amphibians, and reptiles. The bill would also require the commission to consider public health and safety when adopting these regulations.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 665

Author:(Frazier)

As Amended Ver:August 18, 2015

Majority vote

Original Committee Reference: W., P., & W.

SUMMARY: Provides that the state has fully occupied the field of the taking and possession of fish and game, and preempts any local ordinance or regulation regarding the taking or possession of fish and game.

The Senate amendments:

1. Modify the Legislature's delegation of regulatory authority to the Fish and Game Commission (FGC) regarding the taking or possession of wildlife to include public health and safety.

2. Modify the legislative findings and declarations in this bill to reference laws for firearms used to take wildlife instead of firearm laws generally, state legislative intent to affirm the exclusive legal authority granted to the FGC and the Department of Fish and Wildlife (DFW) with regard to the taking and possession of fish and game, and state legislative intent to ensure statewide control by the FGC and DFW over fish and game matters for public health and safety purposes.

3. State that nothing in this bill shall be construed to diminish or affect existing legal protections for fish and game-related management, recreation, or other activities.

4. State that nothing in this bill shall abridge the public's right of navigation, fishing, hunting, or other recreation on waters of the state, and include a reference to two specific California court of appeal decisions and one specific state attorney general opinion.

5. State legislative intent to expressly preempt local ordinances regarding the taking or possession of fish and game, and state legislative intent that local governments pursue requests for regulation of hunting, fishing and depredation permits through recommendations to the FGC for adoption of regulations.

6. State that all local ordinances and regulations regarding the taking and possession of fish and game are subject to this bill's declaration that the state has fully occupied the field of the taking and possession of fish and game, and that the FGC and the DFW are the only entities in the state that can regulate the taking or possession of fish and game, unless expressly authorized by the Fish and Game Code, or other state or federal law.

7. Delete the reckless element from current law prohibiting the intentional discharge of a firearm or arrow or crossbow bolt over or across a public road or other way open to the public in an unsafe or reckless manner, and makes other technical changes to that section.

EXISTING LAW:

1. Authorizes the Legislature, in 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. The California Constitution also guarantees the right to fish on the public lands and waters of the state and prohibits laws that impede access to these lands and waters for the purpose of fishing.

2. Gives local governments authority, under 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. Courts have held that a city or county may adopt an ordinance that only incidentally affects fishing and hunting if the primary purpose of the ordinance is for the protection of public health and safety.

3. Prohibits the intentional discharge of a firearm or arrow or crossbow bolt over or across a public road or other way open to the public in an unsafe or reckless manner. Makes a violation of this prohibition punishable as a misdemeanor.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: Local ordinances may be preempted where the Legislature adopts a general scheme for regulation that indicates intent, expressly or impliedly, by the state to occupy a particular field to the exclusion of local laws. The author indicates the purpose of this bill is to reaffirm the state's sole regulatory authority over the taking and possession of fish and game by prohibiting cities and counties from passing local ordinances regarding the taking or possession of fish and game. This bill would also provide that unless otherwise stated by the Fish and Game Code or other state or federal law, the FGC and the DFW are the only entities that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state, and that all local ordinances and regulations regarding the taking or possession of fish and game are subject to these provisions.

The author and sponsors state that local regulation by non-fish and game entities not only interferes with the comprehensive, centralized control of fish and game, but diminishes the role of science and wildlife professionals in wildlife regulatory decisions. The author asserts that it also creates significant enforcement issues for hunters and fishermen. While acknowledging that previous legal opinions have suggested that local governments could indirectly impact the taking of fish and game on non-state and non-federal lands if necessary to protect public safety, the author and sponsor assert that the Fish and Game Code and FGC now take public health and safety into account in crafting rules for fishing and hunting, and so additional local regulation for these purposes is not necessary. This bill also amends the Fish and Game Code to require that the FGC consider public health and safety when adopting hunting and fishing regulations.

Amendments taken in the Assembly deleted a clause in this bill that prohibited a city or county from adopting an ordinance or regulation within its jurisdiction relating to the taking or possession of fish and game. The reason for this amendment was that the law has recognized the authority of cities and counties to adopt a local ordinance, the primary purpose of which is to protect public health and safety, where the ordinance only has an incidental effect on hunting or fishing. Amendments adopted in the Senate state that it is the intent of the Legislature to expressly preempt local ordinances regarding the taking or possession of fish and game. The Senate amendments also codify legislative intent to vest exclusive legal authority in the state FGC and DFW over fish and game matters for public health and safety purposes, which appears contrary to the recognition that local jurisdictions have the authority to regulate for purposes of public health and safety. The effect of these amendments, taken together, create confusion as to what the Legislature intended with regard to the authority of local governments to adopt ordinances where necessary to protect public health and safety that may have an incidental impact on hunting or fishing.

This bill also includes a provision stating that nothing in this bill prohibits a public or private landowner from controlling public access or public use, including hunting or fishing, on land the entity owns or manages. The Senate amendments add a qualification to this section, stating that nothing in this section abridges the public’s rights of navigation, fishing, hunting, or other recreation on waters of the state.

Supporters of this bill state that this bill will re-affirm state preemption over fish and game matters, and help ensure that hunting and fishing regulations are fully controlled by the state FGC and DFW, taking into consideration the best available science and biological information. Doing so will help conserve fish and wildlife using a centralized approach and minimize enforcement issues. Supporters of this bill believe strongly that there must be state preemption of all local hunting and fishing laws. Without the establishment of laws and regulations solely at the state level, sportsmen have difficulty knowing what the laws and regulations are as they move about the state on hunting and fishing trips. They believe that local laws are confusing and result in accidental violations and unnecessary fines. Other supporters emphasize that the need for uniformity in fish and game laws statewide is similar to the need for uniformity in gun laws statewide.

Opponents assert this bill is not needed since the constitution and the courts have already delineated the areas of state and local authority. They assert that this bill, in giving the FGC and DFW exclusive authority over fish and game matters, takes away the rights of cities and counties to safeguard their own citizens from potential dangers involved when fish and game are taken within their boundaries. They also assert this bill creates unintended consequences by invalidating numerous public safety and welfare ordinances already in place, including limits on the use of firearms in certain areas populated by children and companion animals. Opponents argue cities and counties should continue to be allowed to adopt ordinances on matters that affect public health and safety, and the local regulatory process should be safeguarded from such a sweeping change.

Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0002315

 THIRD READING  

Bill No: AB 665

Author: Frazier (D)

Amended: 8/18/15 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 7-0, 6/23/15

AYES: Pavley, Stone, Hertzberg, Hueso, Monning, Vidak, Wolk

NO VOTE RECORDED: Allen, Jackson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 77-0, 4/30/15 (Consent) - See last page for vote

SUBJECT: Hunting or fishing: local regulation

SOURCE: California Waterfowl Association

DIGEST: This bill provides that (1) the state fully occupies the field of the taking and possession of fish and game, and (2) unless authorized by the Fish and Game Code or other state or federal law, that the Department of Fish and Wildlife (DFW) and the California Fish and Game Commission (FGC) are the only entities that may regulate hunting and fishing on the lands and waters of California. The bill expressly preempts any local ordinance or regulation relating to the taking or possession of fish and game. The bill also makes other related changes to the Fish and Game Code.

ANALYSIS:

Existing law:

1. Authorizes the Legislature, in the California Constitution, to delegate to the FGC powers relating to the protection and propagation of fish and game.

2. Provides that 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.

3. Guarantees in the California Constitution the right to fish on the public lands and waters of the state and prohibits laws that impede access to these lands and waters for the purpose of fishing.

4. Gives local governments authority, under 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. Courts have held that a city or county may adopt an ordinance that only incidentally affects fishing and hunting if the primary purpose of the ordinance is for the protection of public health and safety.

This bill:

1. Contains findings and declarations relating the legal history of local government authority to regulate hunting and fishing that concludes, as noted above, that local governments’ current authority is limited to ordinances that only incidentally affect fishing and hunting through ordinances that have the primary purpose of public health and safety protection.

2. Provides that the state fully occupies the field of the taking and possession of fish and game pursuant to the Fish and Game Code, regulations adopted by the FGC pursuant to the Fish and Game Code, and Section 20 of Article IV of the California Constitution, and that all local ordinances and regulations are subject to this section.

3. Prohibits a city or county from adopting an ordinance or regulation within its jurisdiction regarding the taking or possession of fish and game unless expressly authorized by the Fish and Game Code, other state law, or federal law.

4. Requires the FGC and DFW, or any other governmental entity legally authorized to affect hunting and fishing on navigable waters held in public trust to ensure that the fishing and hunting rights of the public guaranteed under the Constitution are protected.

5. Provides that nothing in this bill prohibits a public or private landowner or their designee from controlling access or use, including hunting and fishing, on property that the landowner owns in fee, leases, holds an easement upon, or is otherwise expressly authorized to control for those purposes in a manner consistent with state law.

6. Contains a savings clause stating both that employees or agents of the department performing their official duties are covered by the bill and that these provisions do not affect other existing legal protections for fish and game-related management, recreation, or other activities not mentioned in the bill.

7. States legislative intent that local governments with an interest in restricting hunting or fishing within their jurisdiction should do so through regulations of the FGC.

8. Provides that the FGC regulation of the take or possession of specified wildlife shall include public health and safety.

9. Deletes the requirement in section 3004 of the Fish and Game Code for a showing of “recklessness” as a condition for a misdemeanor conviction of a person for the unlawful discharge of a weapon, but retains the provision that such unlawful discharge must be intentional.

Comments

1. Local Ordinances. The Senate Natural Resources Committee attempted to identify local ordinances to determine if there are examples of ordinances that unreasonably interfere with hunting and fishing. Nine were identified, but this may not be an exhaustive list.

1. The first example was a proposed ordinance from Hermosa Beach. There, following a 2014 incident at the pier at which a juvenile white shark was hooked and bit a fisherman, the city considered further restrictions on fishing that were more restrictive than state law. However, the amendments to the ordinance were never adopted.

2. The second involves proposed amendments to an ordinance from East Bay Regional Park District which would prohibit discharge of a firearm within 150 feet of a trail, level, road, or developed recreation area. In opposing this regulation, the sponsor of AB 665 suggested that the district instead pursue violators through violations enumerated in the Penal Code and the Fish and Game Code.

One such Penal Code provision (section 246.3 (a)) provides that “[any] person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense…” Violations may be charged either as a misdemeanor or a felony, according to the sponsor.

This provision requires a showing of “gross negligence” which requires the actor to have a specific criminal intent that would not be necessary to prove if the district could show, pursuant to its ordinance, a discharge within 150 feet of a trail or the other features mentioned in its ordinance. It may be that an ordinance is more enforceable from the perspective of the district than the Penal Code provision.

A second provision, Section 3004 (b) of the Fish and Game Code, prohibits the intentional discharge of a firearm across any public road or other established way that is open to the public in an unsafe and reckless manner. This provision can be charged as a misdemeanor. As noted, this bill would delete the requirement of a showing of recklessness.

For its part, the East Bay Park District acknowledges that hunting is regulated by the Fish and Game Code.  However, it believes its ordinance fits within the “incidentally affects” description that is authorized by existing law but that would be prohibited by this bill. Its argument is summarized below in opposition statements.

3. The third example is from Redwood City which specifically adopts the regulations of the Fish and Game Commission for hunting, but creates additional zones within its city limits where hunting along the San Francisco Bay is prohibited. The sponsors consider this an example of exactly what should not be allowed in local ordinances.

4. Sacramento County has an ordinance authorizing the sheriff to issue county hunting licenses.

5. The City of Hercules had an ordinance prohibiting the discharge of weapons within city limits. Its city limits extended two miles into the Bay, with an obvious effect on waterfowl hunting. It agreed not to enforce that aspect of its ordinance.

6. The County of Los Angeles has an ordinance prohibiting the discharge of any weapon, including shotguns, within ½ mile of a structure. The sponsors consider this a de facto ban on hunting in the county. The county considers it a reasonable measure for public safety protection.

7. The County of Santa Cruz has an ordinance prohibiting the discharge of weapons within significant blocks of the county that are described in lengthy legal descriptions of the specified properties.

8. Riverside County. Its ordinance has several closed or restricted areas to the use of firearms, including shotguns and air rifles, including expanded distance requirements from buildings and other structures that are greater than the distance in state law (150 yards). 

9. San Bernardino County. Its ordinance specifies where hunting is allowed, including in areas with restrictions where only shotguns may be used.  It also prohibits the discharge of firearms in several areas except for depredation.

2. Pre-emption. 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 intent, expressly or implied, by the state to occupy a particular field to the exclusion of local laws. (See In re Lane, 58 Cal.2d. 99, Pipoly v. Benson (1942) 20 Cal.2d. 366, and Sherwin-Williams Co. v. City of Los Angeles (1993) 4. Cal.4^th 893.) The California Constitution, Article XI, Section 7, gives local governments broad police powers. The California Constitution, as amended in 1902, also provides that the Legislature may provide for the division of the state into fish and game districts and may 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 1986 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.

3. The lingering tension in state law. Some who acknowledge that hunting and fishing regulations are exclusively the domain of the state and that local hunting and fishing ordinances are justifiably pre-empted may have a lingering question regarding the effect of such preemption on local ordinances that prohibit the illegal discharge of firearms in a context unrelated to hunting.

An Assembly amendment attempted to address this question by clarifying that local ordinances would not be prohibited when expressly authorized by the Fish and Game Code, federal law, or “other state laws” including the constitutional provision granting local governments various police powers to protect public health and safety. It remains to be seen if this amendment persuades the opposition (or future courts) that local public health and safety ordinances would not be pre-empted since these are authorized by “other state laws.” It seems clear that the intent of this amendment is that legitimate police power regulations of local governments derived from such other express provision of state law would remain in effect and would not be pre-empted. A primary example would seem to be a local ordinance that prohibits discharges of weapon which may be based on public safety grounds completely unmotivated and unrelated to a hunting regulation. That said, in this context, the word “expressly” in the Assembly amendment may be subject to some interpretation.

Prior Legislation

Previous bills on this topic were unsuccessful but were not completely identical to this bill. The previous bills were closer to “partial pre-emption” bills.

AB 815 (Berryhill) of 2008 was substantially similar to this bill, except that AB 815 included language providing that local ordinances that regulate trapping were not subject to the state preemption provisions. (The trapping exclusion is now in AB 665 because of Assembly amendments.) AB 665 also includes additional language that was not in AB 815, specifically the provision that prohibits a city or county from adopting an ordinance or regulation within its jurisdiction "regarding" the taking or possession of fish and game. AB 815 was vetoed by the Governor.

AB 2146 (Canciamilla) of 2006 was also substantially similar to this bill, except that it would have applied only to local ordinances adopted after the effective date of the bill and would have grandfathered in existing local ordinances. AB 2146 was held in the Senate.

AB 979 (Berryhill) of 2010 was also substantially similar to this bill, except that it included language providing that a city or county may not adopt an ordinance or regulation that affects hunting or fishing unless the ordinance or regulation is both necessary to protect public health and safety and has only an incidental impact on the fields of hunting and fishing preempted by state law. It also included language limiting the bill's application to activities for which a hunting or fishing license is required by the state. AB 979 was vetoed by the Governor.

This bill, on the other hand, is intended to fully pre-empt local ordinances without regard to the exceptions mentioned above.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/16/15)

California Waterfowl Association (source)

California Bowmen Hunters Association

California Chapter Wild Sheep Foundation

California Fish and Game Wardens’ Association

California Hawking Club

California-Oregon Wetlands and Waterfowl Council

California Rice Commission

California Rifle and Pistol Association, Inc.

California Sportfishing League

California Sportsman’s Lobby

Delta Waterfowl

Ducks Unlimited

Firearms Policy Coalition

Gaines & Associates

Grassland Water District

Mule Deer Foundation

National Rifle Association

National Shooting Sports Foundation, Inc.

National Wild Turkey Federation

Outdoor Sportsmen's Coalition of California

Rocky Mountain Elk Foundation

Safari Club International

San Diego County Wildlife Federation

Suisun Resource Conservation District

The Black Brant Group

The California Sportsmen's Lobby, Inc.

The Sportfishing Conservancy

Tulare Basin Wetlands Association

OPPOSITION: (Verified 8/16/15)

City and County of San Francisco

East Bay Regional Park District

Hayward Area Recreation and Park District

Marin Humane Society

Project Coyote

Public Interest Coalition

Sierra Club California

State Park Partners Coalition
The Humane Society of the United States

ARGUMENTS IN SUPPORT: The author indicates the purpose of this bill is to reaffirm the state's sole regulatory authority over the taking and possession of fish and game by prohibiting cities and counties from passing local ordinances that relate to the taking or possession of fish and game. This bill would also provide that unless otherwise stated by the Fish and Game Code or federal law, the FGC and the DFW are the only entities that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state.

The author and sponsors state that local regulation by non-fish and game entities not only interferes with the comprehensive, centralized control of fish and game, but diminishes the role of science and wildlife professionals in wildlife regulatory decisions. The author asserts that it also creates significant enforcement issues for hunters and fishermen. While acknowledging that previous legal opinions have suggested that local governments could indirectly impact the taking of fish and game on non-state and non-federal lands if necessary to protect public safety, the author and sponsor assert that the Fish and Game Code and FGC would take public health and safety into account, pursuant to this bill, in crafting rules for fishing and hunting, and so additional local regulation for these purposes is not necessary. Finally, this bill also includes a provision stating that nothing in this bill prohibits a public or private landowner from controlling public access or public use, including hunting or fishing, on land the entity owns or manages.

ARGUMENTS IN OPPOSITION: Opponents assert this bill is not needed since the constitution and the courts have already delineated the areas of state and local authority. They assert that this bill, in giving the FGC and DFW exclusive authority over fish and game matters, takes away the rights of cities and counties to safeguard their own citizens from potential dangers involved when fish and game are taken within their boundaries. They also assert this bill creates unintended consequences by invalidating numerous public safety and welfare ordinances already in place, including limits on the use of dangerous traps and firearms in certain areas populated by children and companion animals. As examples, the Humane Society points to the City of San Rafael’s ban on the use of traps and poisons in city open space areas, a ban on snares and other body-gripping traps in the City of Los Angeles, and a ban on feeding of wildlife in city parks and other public spaces in the City of Berkeley. In summary, opponents argue cities and counties should continue to be allowed to adopt ordinances on matters that affect public health and safety, and the local regulatory process should be safeguarded from such a sweeping change.

East Bay Regional Park District is very concerned that the bill could jeopardize public safety along its parks which include hundreds of acres of Bay waters and regional shorelines. In a photo submitted by the district, it is apparent that at high tide, hunters could have access to both sides of a slightly elevated trail. It requests an amendment authorizing a 150 yard safety buffer along its trails, roads, and near its developed areas.

The State Parks Partners Coalition comprised of 15 local entities including Los Angeles County Parks and Recreation, East Bay Regional Parks, and Santa Clara County Open Space District is also opposed. While not anti-hunting, the coalition is concerned about the loss of local control in protecting public safety, and it questions the need for preemption of local ordinances particularly in situations where local recreational lands are partially or wholly inconsistent with hunting activities.

The City and County of San Francisco adopted an oppose position on August 19^th, 2015. Its opposition is based on its view that the discharge of firearms adjacent to or near public parks or general recreation lands presents an imminent public danger that cannot be adequately monitored or reconciled with existing state resources (given the chronic under-budgeting of DFW wardens). It also objects to the creation of this public danger through the preemption of local ordinances that presently govern its parklands. It fears that those parklands, could, through this bill, become adjacent to lands or waters that would be used for hunting.

ASSEMBLY FLOOR: 77-0, 4/30/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Campos, Chávez, Gomez

Prepared by: William Craven / N.R. & W. / (916) 651-4116

8/19/15 20:53:07

**** END ****

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Fran Pavley, Chair

2015 - 2016 Regular

Bill No: AB 665 Hearing Date: June 23, 2015

Subject: Hunting or fishing: local regulation.

BACKGROUND AND EXISTING LAW

1. Authorizes the Legislature, in the California Constitution, to delegate to the Fish and Game Commission (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. The California Constitution also guarantees the right to fish on the public lands and waters of the state and prohibits laws that impede access to these lands and waters for the purpose of fishing.

2. Gives local governments authority, under 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. Courts have held that a city or county may adopt an ordinance that only incidentally affects fishing and hunting if the primary purpose of the ordinance is for the protection of public health and safety.

PROPOSED LAW

Provides that the state has fully occupied the field of the taking and possession of fish and game, and preempts any local ordinance or regulation relating to the taking or possession of fish and game. Specifically, this bill:

1. Provides that the regulation of the take or possession of specified wildlife shall include public health and safety.

2. Contains findings and declarations relating the legal history of local government authority to regulate hunting and fishing that concludes, as noted above, that local governments may adopt such ordinances that only incidentally affect fishing and hunting provided that the primary purpose of the ordinance is for the protection of public health and safety.

3. Provides that the state fully occupies the field of the taking and possession of fish and game pursuant to the Fish and Game Code, regulations adopted by the Fish and Game Commission (FGC) pursuant to the Fish and Game Code, and Section 20 of Article IV of the California Constitution, and that all local ordinances and regulations are subject to this section.

4. Prohibits a city or county from adopting an ordinance or regulation within its jurisdiction regarding the taking or possession of fish and game unless expressly authorized by the Fish and Game Code, other state law, or federal law.

5. Requires the FGC, the Department of Fish and Wildlife (DFW), or any other governmental entity legally authorized to affect hunting and fishing on navigable waters held in public trust to ensure that the fishing and hunting rights of the public guaranteed under the Constitution are protected.

6. Provides that nothing in this bill prohibits a public or private landowner or their designee from controlling access or use, including hunting and fishing, on property that the landowner owns in fee, leases, holds an easement upon, or is otherwise expressly authorized to control for those purposes in a manner consistent with state law.

7. Contains a savings clause stating both that employees or agents of the department performing their official duties are covered by the bill and that these provisions do not affect other existing legal protections for fish and game-related management, recreation, or other activities not mentioned in the bill.

8. Requires the FGC, when adopting regulations regarding hunting and fishing, to consider public health and safety.

ARGUMENTS IN SUPPORT

1. The author indicates the purpose of this bill is to reaffirm the state's sole regulatory authority over the taking and possession of fish and game by prohibiting cities and counties from passing local ordinances that relate to the taking or possession of fish and game. This bill would also provide that unless otherwise stated by the Fish and Game Code or federal law, the FGC and the DFW are the only entities that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state.
   
   The author and sponsors state that local regulation by non-fish and game entities not only interferes with the comprehensive, centralized control of fish and game, but diminishes the role of science and wildlife professionals in wildlife regulatory decisions. The author asserts that it also creates significant enforcement issues for hunters and fishermen. While acknowledging that previous legal opinions have suggested that local governments could indirectly impact the taking of fish and game on non-state and non-federal lands if necessary to protect public safety, the author and sponsor assert that the Fish and Game Code and FGC would take public health and safety into account, pursuant to this bill, in crafting rules for fishing and hunting, and so additional local regulation for these purposes is not necessary. Finally, this bill also includes a provision stating that nothing in this bill prohibits a public or private landowner from controlling public access or public use, including hunting or fishing, on land the entity owns or manages.

ARGUMENTS IN OPPOSITION

1) Opponents assert this bill is not needed since the constitution and the courts have already delineated the areas of state and local authority. They assert that this bill, in giving the FGC and DFW exclusive authority over fish and game matters, takes away the rights of cities and counties to safeguard their own citizens from potential dangers involved when fish and game are taken within their boundaries. They also assert this bill creates unintended consequences by invalidating numerous public safety and welfare ordinances already in place, including limits on the use of dangerous traps and firearms in certain areas populated by children and companion animals. As examples, the Humane Society points to the City of San Rafael’s ban on the use of traps and poisons in city open space areas, a ban on snares and other body-gripping traps in the City of Los Angeles, and a ban on feeding of wildlife in city parks and other public spaces in the City of Berkeley. In summary, opponents argue cities and counties should continue to be allowed to adopt ordinances on matters that affect public health and safety, and the local regulatory process should be safeguarded from such a sweeping change.

2) East Bay Regional Park District is very concerned that the bill could jeopardize public safety along its parks which include hundreds of acres of Bay waters and regional shorelines. In a photo submitted by the district, it is apparent that at high tide, hunters could have access to both sides of a slightly elevated trail. It requests an amendment authorizing a 150 yard safety buffer along its trails, roads, and near its developed areas.

The State Parks Partners Coalition comprised of 15 local entities including Los Angeles County Parks and Recreation, East Bay Regional Parks, and Santa Clara County Open Space District is also opposed. While not anti-hunting, the coalition is concerned about the loss of local control in protecting public safety, and questions the need for preemption of local ordinances particularly in situations where local recreational lands are partially or wholly inconsistent with hunting activities.

COMMENTS

1) Previous bills on this topic were unsuccessful but not completely identical to this bill. The previous bills were more akin to “partial pre-emption” bills.

AB 815 (Berryhill) of 2008 was substantially similar to this bill, except that AB 815 included language providing that local ordinances that regulate trapping were not subject to the state preemption provisions of the bill. (The trapping exclusion is now in AB 665 because of Assembly amendments.) AB 665 also includes additional language that was not in AB 815, specifically the provision prohibiting a city or county from adopting an ordinance or regulation within its jurisdiction "relating" to the taking or possession of fish and game. AB 815 was vetoed by the Governor.

AB 2146 (Canciamilla) of 2006 was also substantially similar to this bill, except that it would have applied only to local ordinances adopted after the effective date of the bill and would have grandfathered in existing local ordinances. AB 2146 was held in the Senate.

AB 979 (Berryhill) of 2010 was also substantially similar to this bill, except that it included language providing that a city or county may not adopt an ordinance or regulation that affects hunting or fishing unless the ordinance or regulation is both necessary to protect public health and safety and has only an incidental impact on the fields of hunting and fishing preempted by state law. It also included language limiting the bill's application to activities for which a hunting or fishing license is required by the state. AB 979 was vetoed by the Governor.

This bill, on the other hand, is intended to fully pre-empt local ordinances without regard to the exceptions mentioned above.

Local Ordinances.

Both the sponsor and DFW (which does not have a position on the bill) were asked to identify or quantify the number of local ordinances that have unreasonably interfered with hunting and fishing. These are described below. Aside from these examples, the frequency with which local ordinances interfere with hunting and fishing is not known. As stated above, existing law allows such ordinances provided their effect on hunting and fishing is “incidental.” To the supporters, these ordinances with “incidental effects” on hunting make knowledge of lawful hunting and fishing activities difficult to learn and makes for helter-skelter enforcement.

1) The first example was a proposed ordinance from Hermosa Beach. There, following a 2014 incident at the pier at which a juvenile white shark was hooked and bit a fisherman, the city considered further restrictions on fishing more restrictive than state law. However, the amendments to the ordinance were never adopted.

2) The second involves proposed amendments to an ordinance from East Bay Regional Park District which would prohibit discharge of a firearm within 150 feet of a trail, level, road, or developed recreation area. In opposing this regulation, California Waterfowl suggested instead that the district pursue violators through violations enumerated in the Penal Code and the Fish and Game Code.

Penal Code section 246.3 (a) provides that “[any] person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense…” Violations may be charged either as a misdemeanor or a felony, according to the sponsor.

The Penal Code provision requires a showing of “gross negligence” which requires the actor to have a specific criminal intent that would not be necessary to prove if the district could show, pursuant to its ordinance, a discharge within 150 feet of a trail or the other features mentioned in its ordinance. It may be that an ordinance is more enforceable from the perspective of the district than the Penal Code provision.

On the other hand, Section 3004 (b) of the Fish and Game Code prohibits the intentional discharge of a firearm across any public road or other established way that is open to the public in an unsafe and reckless manner. This provision can be charged as a misdemeanor.

For its part, the district’s ordinance acknowledges that hunting is regulated by the Fish and Game Code.  However, it believes its ordinance fits within the “incidentally affects” description that is authorized by existing law. Its argument is summarized below in opposition statements.

3) The third example is from Redwood City which specifically adopts the regulations of the Fish and Game Commission for hunting, but creates additional zones within its city limits where hunting along the San Francisco Bay is prohibited. The sponsors consider this an example of exactly what should not be allowed in local ordinances. The sponsors also believe that other such local ordinances exist.

4) Sacramento County has an ordinance authorizing the sheriff to issue county hunting licenses.

5) The City of Hercules had an ordinance prohibiting the discharge of weapons within city limits. Its city limits extended two miles into the Bay, with an obvious effect on waterfowl hunting. It agreed not to enforce that aspect of its ordinance.

6) The County of Los Angeles has an ordinance prohibiting the discharge of any weapon, including shotguns, within ½ mile of a structure. The sponsors consider this a de facto ban on hunting in the county.

7) The County of Santa Cruz has an ordinance prohibiting the discharge of weapons within significant blocks of the county that are described in lengthy legal descriptions of the specified properties.

8) Riverside County. Its ordinance has several closed or restricted areas to the use of firearms, including shotguns and air rifles, including expanded distance requirements from buildings and other structures that are greater than state law (150 yards). 

9) San Bernardino County. Its ordinance specifies where hunting is allowed, including in areas with restrictions where only shotguns may be used.  It also prohibits the discharge of firearms in several areas except for depredation.

It seems that in the vast majority of instances in which a local ordinance may go beyond the comfort level of hunting groups that such conflicts have been resolved through discussions and negotiations. There are few reported judicial decisions, and no available database of local ordinances that affect hunting and fishing. The nine examples included is the complete list of local ordinances that the sponsors provided although they believe there are others.

Section 2. This section focuses on amendments to the bill in the Assembly and additional amendments the Committee may wish to consider if the bill moves forward.

Assembly Amendments.

a) An Assembly amendment limited the bill to activities for which a hunting and fishing license or a depredation permit is required, thus eliminating the application of the bill to laws related to trapping. Trapping had been exempted from two previous bills that attempted to establish state pre-emption of local ordinances that affected hunting and fishing.

b) Another Assembly amendment added “other state law” to clarify that local ordinances would not be prohibited when expressly authorized by the Fish and Game Code, federal law, or other state laws. It remains to be seen if this amendment persuades the opposition that local public health and safety ordinances would not be pre-empted. It seems reasonable to conclude that legitimate police power regulations of local governments derived from such other express provision of state law would remain in effect and would not be pre-empted. A primary example would seem to be a local ordinance that prohibits discharges of weapon which may be based on public safety grounds completely unmotivated and unrelated to a hunting regulation. That said, in this context, the word “expressly” is subject to some interpretation.

Possible Senate Committee Amendments.

a) Amendment 1 clarifies the finding regarding safety education to clarify that the safety training provided to hunters is focused on the weapons discharge laws that involve firearms used to take wildlife, and not all weapons discharge laws in California.

a) Although the bill is intended to expressly pre-empt local hunting and fishing ordinances, it does not directly make that statement. Assuming the bill is not held in Committee and moves forward, Amendment 2 would include a declaration to that effect. This amendment would further the intent of the author and sponsor.

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 intent, expressly or implied, by the state to occupy a particular field to the exclusion of local laws. (See In re Lane, 58 Cal.2d. 99, Pipoly v. Benson (1942) 20 Cal.2d. 366, and Sherwin-Williams Co. v. City of Los Angeles (1993) 4. Cal.4^th 893.) The California Constitution, Article XI, Section 7, gives local governments broad police powers. The California Constitution, as amended in 1902, also provides that the Legislature may provide for the division of the state into fish and game districts and may 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 1986 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.

The Committee should note that the Fish and Game Code and other provisions of law contain references to local ordinances that would not be affected by this bill since this bill expressly recognizes ordinances that are authorized by state laws. These include local ordinances regarding the take of wild pigs, and the disposition of frogs and turtles in the live animal market. There are undoubtedly others.

There are also multiple references to local ordinances in other contexts on the DFW website. For example, the Fish and Wildlife website explaining sport fishing regulations notes that “cities, counties, and other local land management authorities may require permits and impose other access/trespass restrictions in addition to the restrictions in the sport fishing regulations. It is the responsibility of the angler to be aware of and comply with these local rules.” It is not clear how ordinances referenced in this website will be treated under this bill, but staff’s assumption is that such ordinances would be pre-empted.

Another interesting example from the Fish and Wildlife website explains that its “Fishing in the City” program is subject to all state regulations, local and park ordinances, and that daily catch limits may be lower than state limits. Those ordinances would also likely be pre-empted.

In discussing a game refuge in Riverside County, the DFW website notes city ordinances that prohibit hunting, and the website also notes a Colusa County ordinance on hunting. Many local jurisdictions have ordinances prohibiting hunting in parks.

b) The Committee may wish to make it clear that local governments retain their authority to seek regulations or approval of local ordinances adopted after the effective date of this legislation through the existing procedures of the FGC. Amendment 3 is intended to address that circumstance. On a related note, the bill, as currently proposed, does not eliminate existing local government ordinances but it does make local government ordinances subject to the bill.

c) A recent author’s amendment would inadvertently have made the findings and declarations in section 200.5 operational by incorporating them by reference into section 200.6. Amendment 4 would retain those findings and declarations but delete the cross-reference to section 200.5. It would also delete a subsequent reference to Section 200.5 at page 4, line 8. This amendment also would state that the local ordinances and regulations that are subject to this bill are those “regarding the taking and possession of fish and game.”

d) Amendment 5 is technical and deletes an erroneous constitutional cross-reference to hunting.

e) Amendment 6 would make the misdemeanor in FGC Section 3004(b) a wobblet that could also be charged as an infraction.

SUGGESTED AMENDMENTS

AMENDMENT 1

Page 3, line 14. Delete “weapons discharge laws” and add: “discharge laws for firearms used to take wildlife”

AMENDMENT 2

Page 3, line 29, add new (c). Add: It is the intent of the Legislature to expressly pre-empt local ordinances regarding the taking or possession of fish and game as provided in section 200.6.

AMENDMENT 3

Page 3, line 29. Add a new (d): It is the intent of the Legislature that local governments pursue requests for local regulation of hunting and fishing and depredation permits pursuant to Article 2 of the Fish and Game Code, beginning at section 200.

AMENDMENT 4.

Page 3, line 36. Delete “and section 200.5.”

Page 3, line 36. Add, after “regulation”: “regarding the taking and possession of fish and game.”

Page 4, line 8. Delete “or section 200.5.”

AMENDMENT 5.

Page 4, lines 5. Delete “and hunting”

Page 4, line 7. Add after Constitution, “and lawful hunting activities”

AMENDMENT 6.

Add FGC 3004 (b) into list of wobblets in Section 12000 of the FGC.

SUPPORT

California Bowmen Hunters Association

California Chapter Wild Sheep Foundation\

California Fish and Game Wardens’ Association

California Hawking Club

California Waterfowl Association (sponsor)

California-Oregon Wetlands and Waterfowl Council

California Rice Commission

California Rifle and Pistol Association, Inc.

California Sportfishing League

Delta Waterfowl

Ducks Unlimited

Gaines & Associates

Grassland Water District

Mule Deer Foundation

National Rifle Association

National Shooting Sports Foundation, Inc.

National Wild Turkey Federation

Outdoor Sportsmen's Coalition of California

Rocky Mountain Elk Foundation

Safari Club International, San Diego Chapter

San Diego County Wildlife Federation

Suisun Resource Conservation District

The Black Brant Group

The California Sportsmen's Lobby, Inc.

The Sportfishing Conservancy

Tulare Basin Wetlands Association

OPPOSITION

East Bay Regional Park District

Marin Humane Society

Project Coyote

Public Interest Coalition

Sierra Club California

State Park Partners Coalition
The Humane Society of the United States

-- END --

Date of Hearing: April 22, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 665

Author:(Frazier) – As Amended Ver:April 15, 2015

Urgency: No State Mandated Local Program: No Reimbursable:

SUMMARY:

This bill declares the state of California fully occupies the field of the taking and possession of fish and game. Specifically, this bill:

1. Specifies that the state fully occupies the field of the taking and possession of fish and game pursuant to the Fish and Game Code, regulations adopted by the Fish and Game Commission (FGC) pursuant to the Fish and Game Code, and Section 20 of Article IV of the California Constitution, and that all local ordinances and regulations are subject to this section of the Fish and Game Code.

2. Requires the FGC, the Department of Fish and Wildlife (DFW), or any other governmental entity legally authorized to affect hunting and fishing on navigable waters held in public trust to ensure that the fishing and hunting rights of the public guaranteed under the Constitution are protected.

3. Provides that unless expressly authorized by the Fish and Game Code, other state law or federal law, the FGC and the DFW are the only entities in the state that may adopt or promulgate regulations regarding the taking or possession of fish and game on any lands or waters within the state.

4. Provides that nothing in this bill prohibits a public or private landowner or their designee from controlling public access or public use, including hunting and fishing, on property that the landowner owns in fee, leases, holds an easement upon, or is otherwise expressly authorized to control for those purposes in a manner consistent with state law.

5. Requires the FGC, when adopting regulations regarding hunting and fishing, to consider public health and safety.

FISCAL EFFECT:

Negligible costs to the FGC and the DFW to review local ordinances and regulations that may violate these provisions. (Fish and Game Preservation Fund)

COMMENTS:

1. Purpose. According to the author, the purpose of this bill is to reaffirm the state's sole regulatory authority over the taking and possession of fish and game by prohibiting cities and counties from adopting local ordinances relating to the taking or possession of fish and game.

2. Background. The California Constitution (Section 20, Article I) creates the FGC and allows the Legislature to vest the commission with the responsibility to regulate fishing and hunting activities in the state, an authority the Legislature has exercised since early in the 20^th Century. The California Constitution (Section 25, Article I) guarantees the right to fish on the public lands and waters of the state and prohibits laws to impede access to these lands and waters for the purpose of fishing. The California Supreme Court in In re Makings (1927) determined that local governments are prohibited from regulating, or interfering with, the taking of fish and game and places this responsibility with the Legislature.

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 1986 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 incidentally, the ordinance is a valid exercise of the local police power.

3. Prior Legislation. AB 2146 (Canciamilla) of 2006 was substantially similar to this bill, but applied only to local ordinances adopted after the effective date of the bill. AB 2146 was held in the Senate. AB 815 (Berryhill) of 2008 and AB 979 (Berryhill) of 2010 were substantially similar to this bill. Both bills were vetoed by Governor Schwarzenegger. AB 815 was vetoed because the Budget was delayed. AB 979 was viewed as unnecessary.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081