Existing law makes it unlawful to enter land for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land, without having first obtained written permission from the owner, the owners agent, or the person in lawful possession of that land, if either of the following applies: (1) the land belongs to, or is occupied by, another person and is either under cultivation or enclosed by a fence, or (2) there are signs forbidding trespass or hunting or both displayed at intervals not less than 3 to the mile along all exterior boundaries and at all roads and trails entering those lands, including land temporarily inundated by water flowing outside the established banks of a waterway, as specified.

This bill would exempt from those provisions lands inundated by navigable waters temporarily flowing outside the established banks of a river, stream, slough, or other waterway that float a boat, canoe, kayak, or any other watercraft. The bill would also state that these provisions do not restrict the publics right under the California Constitution to use navigable waters for hunting, fishing, or other public purposes. The bill would specify that for the purposes of these provisions navigable waters can include ordinary, seasonal flooding. The bill would also specify that nothing in the above-mentioned provisions permits entry over legally restricted land on waters that are not, in fact, navigable.

Existing law makes it unlawful to enter land for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land, without having first obtained written permission from the owner, the owners agent, or the person in lawful possession of that land, if either of the following applies: (1) the land belongs to, or is occupied by, another person and is either under cultivation or enclosed by a fence, or (2) there are signs forbidding trespass or hunting or both displayed at intervals not less than 3 to the mile along all exterior boundaries and at all roads and trails entering those lands, including land temporarily inundated by water flowing outside the established banks of a waterway.

This bill would restrict the application of the provisions regarding land temporarily inundated by water flowing outside the established banks of a waterway to non-navigable waters. exempt from those provisions lands inundated by navigable waters temporarily flowing outside the established banks of a river, stream, slough, or other waterway that float a boat, canoe, kayak, or any other watercraft. The bill would also state that these provisions do not restrict the publics right under the California Constitution to use navigable waters for hunting, fishing, or other public purposes under the California Constitution. purposes. The bill would specify that for the purposes of these provisions navigable waters can include ordinary, seasonal flooding. The bill would also specify that entry over legally restricted land on waters that are not, in fact, navigable is prohibited.

Existing law makes it unlawful to enter land for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land, without having first obtained written permission from the owner, the owners agent, or the person in lawful possession of that land, if either of the following applies: (1) the land belongs to, or is occupied by, another person and is either under cultivation or enclosed by a fence, or (2) there are signs forbidding trespass or hunting or both displayed at intervals not less than 3 to the mile along all exterior boundaries and at all roads and trails entering those lands, including land temporarily inundated by water flowing outside the established banks of a waterway.

This bill would restrict the application of the provisions regarding land temporarily inundated by water flowing outside the established banks of a waterway to non-navigable waters. The bill would also state that these provisions do not restrict the publics right to use navigable waters for hunting, fishing, or other public purposes under the California Constitution. The bill would specify that for the purposes of these provisions navigable waters include regular, seasonal flooding.

Existing law makes it unlawful to enter land for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land, without having first obtained written permission from the owner, the owners agent, or the person in lawful possession of that land, if either of the following applies: (1) the land belongs to, or is occupied by, another person and is either under cultivation or enclosed by a fence, or (2) there are signs forbidding trespass or hunting or both displayed at intervals not less than 3 to the mile along all exterior boundaries and at all roads and trails entering those lands, including land temporarily inundated by water flowing outside the established banks of a waterway.

This bill would restrict the application of the provisions regarding land temporarily inundated by water flowing outside the established banks of a waterway to non-navigable waters. The bill would also state that these provisions do not restrict the publics right to use navigable waters for hunting, fishing, or other public purposes under the California Constitution. The bill would specify that for the purposes of these provisions navigable waters include regular, seasonal flooding.

Existing law makes it unlawful to enter land for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land, without having first obtained written permission from the owner, the owners agent, or the person in lawful possession of that land, if either of the following applies: (1) the land belongs to, or is occupied by, another person and is either under cultivation or enclosed by a fence, or (2) there are signs forbidding trespass or hunting or both displayed at intervals not less than 3 to the mile along all exterior boundaries and at all roads and trails entering those lands, including land temporarily inundated by water flowing outside the established banks of a waterway.

This bill would restrict the application of the provisions regarding land temporarily inundated by water flowing outside the established banks of a waterway to non-navigable waters. The bill would also state that these provisions do not restrict the publics right to use navigable waters for hunting, fishing, or other public purposes under the California Constitution.

GOVERNOR'S VETO

GV Bill Id:AB 859

Author:(Gallagher)

As Enrolled Ver:September 18, 2023

2/3 vote

SUMMARY

Specifies that hunter trespass on private property is limited to lands and lands temporarily inundated by non-navigable waters and that the right of the public to use navigable waters for hunting, fishing, or other public purpose is protected, consistent with the California Constitution.

Governor’s Veto Message

This bill would modify existing law that prohibits the use of temporarily inundated lands for hunting without written permission to instead authorize the use of temporarily inundated navigable waters for hunting.

I support the intent of this bill to clarify the public's right to navigate temporarily inundated waterways for fishing, hunting, or other enjoyment, as guaranteed by the California Constitution. However, this bill contains overly broad language that could extend access rights beyond the public trust doctrine, thus impacting private property owners' rights. The bill also creates inconsistency with the definition of navigable waters in the Harbors and Navigation Code, which is likely to result in confusion in communities across California. I encourage the Legislature to refine these revisions in subsequent legislation.

COMMENTS

This bill modifies the existing Fish and Game Code (FGC) Section 2016, which prohibits the use of temporarily inundated lands for hunting without written permission to instead authorize the use of temporarily inundated navigable waters for hunting, as provided. Specifically, this bill narrows the prohibition on hunting on lands temporarily inundated with water without permission, to a prohibition on hunting on lands temporarily inundated with non-navigable waters.

This bill codifies two opinions by the California Attorney General (No. 85-602, dated October 10, 1985, and No. 97-307, dated November 12, 1997) related to the permissibility of recreation and hunting on the navigable waters – even temporarily navigable waters – in the state. These opinions have not been formally cited by a court. The statutory restriction on hunting in FGC Section 2016 would still apply to any non-navigable waters and lands that meet the signage and other requirements of that section.

Navigability alone does not imply that the water is necessarily open for recreation or hunting where other laws – such as a local emergency – apply, and that the Legislature may regulate both hunting and boating. All other laws under the FGC or other codes, such as provisions in the Harbors and Navigation Code, still apply. The Fish and Game Commission can still restrict or ban hunting anywhere in the state using its delegated authority, including banning all hunting upon specified navigable waters in certain situations.

According to the Author

"Our Constitution guarantees the public's right to access and utilize navigable waters, including for the purposes of hunting and fishing. [This bill] clarifies and protects this important right, ensuring that Californians can continue to enjoy our state’s natural resources."

Arguments in Support

A coalition of organizations representing outdoor enthusiasts writes in support, stating that the changes made by this bill "will not only help ensure that sportsmen exercising their rights on navigable floodwaters are not wrongly cited for trespassing, but will save the court system time and money."

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, there are potential cost savings to the court system as a result of fewer charges brought under Fish and Game Code Section 2016 for hunting on navigable floodwaters.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 12-0-3

YES: Bauer-Kahan, Mathis, Alanis, Megan Dahle, Davies, Friedman, Hart, Kalra, Pellerin, Blanca Rubio, Schiavo, Villapudua

ABS, ABST OR NV: Bennett, Ward, Weber

ASM APPROPRIATIONS: 14-0-2

YES: Holden, Megan Dahle, Calderon, Wendy Carrillo, Dixon, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Sanchez, Weber, Wilson

ABS, ABST OR NV: Bryan, Mathis

ASSEMBLY FLOOR: 74-0-6

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

ABS, ABST OR NV: Cervantes, Vince Fong, Friedman, Villapudua, Waldron, Wilson

SENATE FLOOR: 39-0-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Caballero

ASSEMBLY FLOOR: 76-0-4

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk‑Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Wicks, Wilson, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Bauer-Kahan, Friedman, Ward, Weber

UPDATED

VERSION: September 18, 2023

CONSULTANT: Stephanie Mitchell / W., P., & W. / (916) 319-2096 FN: 0002531

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 859

Author:(Gallagher)

As Amended Ver:September 7, 2023

Majority vote

SUMMARY

Specifies that hunter trespass on private property is limited to lands and lands temporarily inundated by non-navigable waters, as specified, and that the right of the public to use navigable waters for hunting, fishing, or other public purpose is protected, consistent with the California Constitution.

Senate Amendments

1. Clarify that navigable waters can include ordinary, seasonal flooding.
2. Require that navigable waters be able to float watercraft.
3. State that nothing in this bill permits entry over legally restricted land on waters that are not navigable.

COMMENTS

This bill modifies the existing Fish and Game Code (FGC) Section 2016, which prohibits the use of temporarily inundated lands for hunting without written permission to instead authorize the use of temporarily inundated navigable waters for hunting, as provided. Specifically, this bill narrows the prohibition on hunting on lands temporarily inundated with water without permission, to a prohibition on hunting on lands temporarily inundated with non-navigable waters.

This bill codifies two opinions by the California Attorney General (No. 85-602, dated October 10, 1985, and No. 97-307, dated November 12, 1997) related to the permissibility of recreation and hunting on the navigable waters – even temporarily navigable waters – in the state. These opinions have not been formally cited by a court. The statutory restriction on hunting in FGC Section 2016 would still apply to any non-navigable waters and lands that meet the signage and other requirements of that section.

Navigability alone does not imply that the water is necessarily open for recreation or hunting where other laws – such as a local emergency – apply, and that the Legislature may regulate both hunting and boating. All other laws under the FGC or other codes, such as provisions in the Harbors and Navigation Code, still apply. The Fish and Game Commission can still restrict or ban hunting anywhere in the state using its delegated authority, including banning all hunting upon specified navigable waters in certain situations.

According to the Author

"Our Constitution guarantees the public's right to access and utilize navigable waters, including for the purposes of hunting and fishing. AB 859 clarifies and protects this important right, ensuring that Californians can continue to enjoy our state's natural resources."

Arguments in Support

A coalition of organizations representing outdoor enthusiasts writes in support, stating that the changes made by this bill "will not only help ensure that sportsmen exercising their rights on navigable floodwaters are not wrongly cited for trespassing, but will save the court system time and money."

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, there are potential cost savings to the court system as a result of fewer charges brought under Fish and Game Code Section 2016 for hunting on navigable floodwaters.

VOTES:

ASM WATER, PARKS, AND WILDLIFE: 12-0-3

YES: Bauer-Kahan, Mathis, Alanis, Megan Dahle, Davies, Friedman, Hart, Kalra, Pellerin, Blanca Rubio, Schiavo, Villapudua

ABS, ABST OR NV: Bennett, Ward, Weber

ASM APPROPRIATIONS: 14-0-2

YES: Holden, Megan Dahle, Calderon, Wendy Carrillo, Dixon, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Sanchez, Weber, Wilson

ABS, ABST OR NV: Bryan, Mathis

ASSEMBLY FLOOR: 74-0-6

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

ABS, ABST OR NV: Cervantes, Vince Fong, Friedman, Villapudua, Waldron, Wilson

UPDATED

VERSION: September 7, 2023

CONSULTANT: Keith Cialino / W., P., & W. / (916) 319-2096 FN: 0002387

 THIRD READING  

Bill No: AB 859

Author: Gallagher (R), et al.

Amended: 9/7/23 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 7/3/23

AYES: Min, Seyarto, Allen, Dahle, Eggman, Limón, McGuire, Padilla, Stern

NO VOTE RECORDED: Grove, Hurtado

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 5/18/23 (Consent) - See last page for vote

SUBJECT: Hunting: navigable waters

SOURCE: California Waterfowl Association

DIGEST:

This bill modifies existing law prohibiting the use of temporarily inundated lands for hunting without written permission to instead authorizing the use of temporarily inundated navigable waters for hunting, as provided.

Senate Floor Amendments of 9/7/23 recast the authorization to use certain temporarily navigable waters for hunting, further clarify the definition of navigable waters for this purpose, and recast the prohibition on entry via non-navigable waters to navigable waters on otherwise legally restricted lands.

ANALYSIS:

Existing law:

1. States that no individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this state, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and that the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this state shall be always attainable for the people thereof (Section IV of Article X of the California Constitution).
2. Makes it unlawful to enter land for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land, without having first obtained written permission from the owner, the owner’s agent, or the person in lawful possession of that land, if either of the following applies:
   1. The land belongs to, or is occupied by, another person and is either under cultivation or enclosed by a fence, or
   2. There are signs forbidding trespass or hunting or both displayed at intervals not less than three per mile along all exterior boundaries and at all roads and trails entering those lands, including land temporarily inundated by water flowing outside the established banks of a waterway (Fish and Game Code (FGC) §2016).
3. Makes a person who unlawfully obstructs the navigation of any navigable waters guilty of a misdemeanor (Harbors and Navigation Code (HNC) §131).
4. Authorizes entities with jurisdiction, as specified, to adopt emergency rules and regulations relating to boats or vessels to ensure the safety of persons and property because of disaster or other public calamity, which can include the closure of navigable waterways to recreational boaters during periods of emergency (HNC §660).
5. Establishes the Fish and Game Commission (Commission) and delegates the authority to regulate the taking or possession of birds, mammals, fish, amphibians, and reptiles to the Commission (Section 20 of Article IV of the California Constitution; FGC §§200 et seq.).
6. Makes it unlawful to hunt or discharge a firearm within 150 yards of an occupied structure, or across a public road or other established way open to the public in an unsafe and reckless manner (FGC §3004).
7. Makes it unlawful for any person, while taking any bird, mammal, fish, reptile, or amphibian, to cause damage, or assist in causing damage, to real or personal property, or to leave gates or bars open, or to break down, destroy, or damage fences, or to tear down or scatter piles of rails, posts, stone, or wood, or, through carelessness or negligence, to injure livestock of any kind (FGC §2004).

This bill modifies the existing Fish and Game Code section prohibiting the use of temporarily inundated lands for hunting without written permission to instead authorizing the use of temporarily inundated navigable waters for hunting, as provided. Specifically, this bill:

1. States that the code section does not restrict the public’s right to use navigable waters for hunting, fishing, or other public purpose pursuant to Section IV of Article X of the California Constitution.
2. Deletes the prohibition on the use of temporarily-inundated lands for hunting without the written permission of the owner if certain conditions are met, as specified, and generally authorizes the use for hunting of lands inundated with temporarily navigable waters that float a boar, canoe, kayak, or any other watercraft.
3. Defines navigable waters to include ordinary, seasonal flooding.
4. Prohibits entry using non-navigable waters over legally restricted land, as provided.

Background

In 1982, the Legislature amended FGC Section 2016 to add language prohibiting the entry into any lands temporarily inundated by waters flowing outside the established banks of a river, stream, slough, or other waterway, where signs forbidding trespass are displayed […] for the purpose of discharging any firearm or taking or destroying any mammal or bird, including any waterfowl, on such lands without having first obtained permission, as provided. According to the Assembly Water, Parks, and Wildlife Committee’s bill analysis, the stated purpose of the 1982 legislation “was to exclude the public so as to ‘provide needed protection to privately owned lands.’” (Chapter 1607, Statutes of 1982).

Then-Senator Byron Sher asked the Attorney General to provide an opinion on whether “the ‘overflow waters’ provision in Fish and Game Code section 2016 [is] constitutional in light of section 4 of Article X of the Constitution.” That section in the California constitution guarantees access to navigable waters by the public.

The Attorney General’s subsequent opinion (No. 85-602, dated October 10, 1985) found that FGC Section 2016 is constitutional with respect to non-navigable waters, but that the prohibition on use of navigable waters was unconstitutional. The opinion noted that the control of large seasonal water flows in the Sacramento and San Joaquin valleys often resulted in private property being inundated which attracts waterfowl and waterfowl hunters.

A second opinion from the Attorney General’s Office (No. 97-307) dated November 12, 1997, found that the then-Department of Boating and Waterways had the authority to close navigable waters to recreational boaters during periods of emergency, such as flood conditions. The opinion noted the public’s right to use navigable waters for boating and recreation, and, citing the 1985 opinion, that the right of navigation includes the right to hunt from a boat.

This bill’s sponsors cite three instances from the last 20 or so years where a hunter in a boat on navigable flooded waters was cited or threatened with a citation for trespass.

Comments

Codifies the Attorney General’s opinions. This bill codifies the two opinions by the California Attorney General related to the permissibility of recreation and hunting on the navigable waters – even temporarily navigable waters – in the state. These opinions have not been formally cited by a court. The statutory restriction on hunting in FGC Section 2016 would still apply to any non-navigable waters and lands that meet the signage and other requirements of that section.

In the event of an emergency? In a recent story chronicling the successful attempt of two journalists to kayak from the recently-reformed Tulare Lake to San Francisco Bay, the two journalists were ordered away from one location due to an emergency closure of those waters (https://www.sfchronicle.com/outdoors/article/tulare-lake-kayak-18133683.php). It is important to note that navigability alone does not imply that the water is necessarily open for recreation or use for hunting where other laws – such as a local emergency – apply, and that the Legislature may regulate both hunting and boating. It is important to note that all other laws under the Fish and Game Code or other codes, such as those provisions in the Harbors and Navigation Code noted above, still apply. The Fish and Game Commission can still restrict or ban hunting anywhere in the state using its delegated authority, including banning all hunting upon specified navigable waters in certain situations.

Related/Prior Legislation

AB 1162 (Chesbro, Chapter 590, Statutes of 2012) expanded the trespass sign provision to encompass signs forbidding trespass or hunting, or both, among other provisions.

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

SUPPORT: (Verified 9/6/23)

California Waterfowl Association (source)

Backcountry Hunters and Anglers

Black Brant Group

California Bowmen Hunters/State Archery Association

California Deer Association

California Hawking Club

California Houndsmen for Conservation

Cal-Ore Wetlands and Waterfowl Council

Congressional Sportsmen’s Foundation

Delta Waterfowl

Ducks Unlimited

Max McGraw Wildlife Foundation

Nor-Cal Guides and Sportsmen’s Association

Safari Club International

Safari Club International, Golden Gate Chapter

San Diego County Wildlife Federation

Suisun Resource Conservation District

Theodore Roosevelt Conservation Partnership

Tulare Basin Wetlands Association

OPPOSITION: (Verified 9/6/23)

None received

ARGUMENTS IN SUPPORT: According to the author, “Our Constitution guarantees the public’s right to access and utilize navigable waters, including for the purposes of hunting and fishing. AB 859 clarifies and protects this important right, ensuring that Californians can continue to enjoy our state’s natural resources.”

ASSEMBLY FLOOR: 74-0, 5/18/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

NO VOTE RECORDED: Cervantes, Vince Fong, Friedman, Villapudua, Waldron, Wilson

Prepared by: Katharine Moore / N.R. & W. / (916) 651-4116

9/8/23 16:27:29

**** END ****

 THIRD READING 

Bill No: AB 859

Author: Gallagher (R), et al.

Amended: 7/10/23 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 7/3/23

AYES: Min, Seyarto, Allen, Dahle, Eggman, Limón, McGuire, Padilla, Stern

NO VOTE RECORDED: Grove, Hurtado

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 5/18/23 (Consent) - See last page for vote

SUBJECT: Hunting: navigable waters

SOURCE: California Waterfowl Association

DIGEST:

This bill modifies existing law prohibiting the use of temporarily inundated lands for hunting without written permission to instead authorizing the use of temporarily inundated navigable waters for hunting, as provided.

ANALYSIS:

Existing law:

1. States that no individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this state, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and that the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this state shall be always attainable for the people thereof (Section IV of Article X of the California Constitution).
2. Makes it unlawful to enter land for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land, without having first obtained written permission from the owner, the owner’s agent, or the person in lawful possession of that land, if either of the following applies:
   1. The land belongs to, or is occupied by, another person and is either under cultivation or enclosed by a fence, or
   2. There are signs forbidding trespass or hunting or both displayed at intervals not less than three per mile along all exterior boundaries and at all roads and trails entering those lands, including land temporarily inundated by water flowing outside the established banks of a waterway (Fish and Game Code (FGC) §2016).
3. Makes a person who unlawfully obstructs the navigation of any navigable waters guilty of a misdemeanor (Harbors and Navigation Code (HNC) §131).
4. Authorizes entities with jurisdiction, as specified, to adopt emergency rules and regulations relating to boats or vessels to ensure the safety of persons and property because of disaster or other public calamity, which can include the closure of navigable waterways to recreational boaters during periods of emergency (HNC §660).
5. Establishes the Fish and Game Commission (Commission) and delegates the authority to regulate the taking or possession of birds, mammals, fish, amphibians, and reptiles to the Commission (Section 20 of Article IV of the California Constitution; FGC §§200 et seq.).
6. Makes it unlawful to hunt or discharge a firearm within 150 yards of an occupied structure, or across a public road or other established way open to the public in an unsafe and reckless manner (FGC §3004).
7. Makes it unlawful for any person, while taking any bird, mammal, fish, reptile, or amphibian, to cause damage, or assist in causing damage, to real or personal property, or to leave gates or bars open, or to break down, destroy, or damage fences, or to tear down or scatter piles of rails, posts, stone, or wood, or, through carelessness or negligence, to injure livestock of any kind (FGC §2004).

This bill modifies the existing Fish and Game Code section prohibiting the use of temporarily inundated lands for hunting without written permission to instead authorizing the use of temporarily inundated navigable waters for hunting, as provided. Specifically, this bill narrows the prohibition on hunting on lands temporarily inundated with water without permission, to a prohibition on hunting on lands temporarily inundated with non-navigable waters, as specified:

1. States that the code section does not restrict the public’s right to use navigable waters for hunting, fishing, or other public purpose pursuant to Section IV of Article X of the California Constitution.
2. Defines navigable waters to include seasonal flooding.
3. Prohibits entry using non-navigable waters over legally restricted land, as provided.

Background

In 1982, the Legislature amended FGC §2016 to add language prohibiting the entry into any lands temporarily inundated by waters flowing outside the established banks of a river, stream, slough, or other waterway, where signs forbidding trespass are displayed […] for the purpose of discharging any firearm or taking or destroying any mammal or bird, including any waterfowl, on such lands without having first obtained permission, as provided. According to the Assembly Water, Parks, and Wildlife Committee’s bill analysis, the stated purpose of the 1982 legislation “was to exclude the public so as to ‘provide needed protection to privately owned lands.’” (Chapter 1607, Statutes of 1982).

Then-Senator Byron Sher asked the Attorney General to provide an opinion on whether “the ‘overflow waters’ provision in Fish and Game Code section 2016 [is] constitutional in light of section 4 of Article X of the Constitution.” That section in the California constitution guarantees access to navigable waters by the public.

The Attorney General’s subsequent opinion (No. 85-602, dated October 10, 1985) found that FGC Section 2016 is constitutional with respect to non-navigable waters, but that the prohibition on use of navigable waters was unconstitutional. The opinion noted that the control of large seasonal water flows in the Sacramento and San Joaquin valleys often resulted in private property being inundated which attracts waterfowl and waterfowl hunters.

A second opinion from the Attorney General’s Office (No. 97-307) dated November 12, 1997, found that the then-Department of Boating and Waterways had the authority to close navigable waters to recreational boaters during periods of emergency, such as flood conditions. The opinion noted the public’s right to use navigable waters for boating and recreation, and, citing the 1985 opinion, that the right of navigation includes the right to hunt from a boat.

This bill’s sponsors cite three instances from the last 20 or so years where a hunter in a boat on navigable flooded waters was cited or threatened with a citation for trespass.

Comments

Codifies the Attorney General’s opinions. This bill codifies the two opinions by the California Attorney General related to the permissibility of recreation and hunting on the navigable waters – even temporarily navigable waters – in the state. These opinions have not been formally cited by a court. The statutory restriction on hunting in FGC Section 2016 would still apply to any non-navigable waters and lands that meet the signage and other requirements of that section.

In the event of an emergency? In a recent story chronicling the successful attempt of two journalists to kayak from the recently-reformed Tulare Lake to San Francisco Bay, the two journalists were ordered away from one location due to an emergency closure of those waters (https://www.sfchronicle.com/outdoors/article/tulare-lake-kayak-18133683.php). It is important to note that navigability alone does not imply that the water is necessarily open for recreation or use for hunting where other laws – such as a local emergency – apply, and that the Legislature may regulate both hunting and boating. It is important to note that all other laws under the Fish and Game Code or other codes, such as those provisions in the Harbors and Navigation Code noted above, still apply. The Fish and Game Commission can still restrict or ban hunting anywhere in the state using its delegated authority, including banning all hunting upon specified navigable waters in certain situations.

Related/Prior Legislation

AB 1162 (Chesbro, Chapter 590, Statutes of 2012) expanded the trespass sign provision to encompass signs forbidding trespass or hunting, or both, among other provisions.

AB 2132 (Houston, 2008) would have required signs forbidding trespass to be at least eight and a half by 11 inches in size, among other provisions. AB 2132 was vetoed by the Governor.

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

SUPPORT: (Verified 8/14/23)

California Waterfowl Association (source)

Backcountry Hunters and Anglers

Black Brant Group

California Bowmen Hunters/State Archery Association

California Deer Association

California Hawking Club

California Houndsmen for Conservation

Cal-Ore Wetlands and Waterfowl Council

Congressional Sportsmen’s Foundation

Delta Waterfowl

Ducks Unlimited

Max McGraw Wildlife Foundation

Nor-Cal Guides and Sportsmen’s Association

Safari Club International

Safari Club International, Golden Gate Chapter

San Diego County Wildlife Federation

Suisun Resource Conservation District

Theodore Roosevelt Conservation Partnership

Tulare Basin Wetlands Association

OPPOSITION: (Verified 8/14/23)

None received

ARGUMENTS IN SUPPORT: According to the author, “Our Constitution guarantees the public’s right to access and utilize navigable waters, including for the purposes of hunting and fishing. AB 859 clarifies and protects this important right, ensuring that Californians can continue to enjoy our state’s natural resources.”

ASSEMBLY FLOOR: 74-0, 5/18/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

NO VOTE RECORDED: Cervantes, Vince Fong, Friedman, Villapudua, Waldron, Wilson

Prepared by: Katharine Moore / N.R. & W. / (916) 651-4116

8/17/23 10:57:57

**** END ****

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: AB Hearing Date: July 3, 2023

Subject: Hunting: navigable waters

BACKGROUND AND EXISTING LAW

1. In 1982, the Legislature amended Fish and Game Code (FGC) §2016 to add language prohibiting the entry into any lands temporarily inundated by waters flowing outside the established banks of a river, stream, slough, or other waterway, where signs forbidding trespass are displayed […] for the purpose of discharging any firearm or taking or destroying any mammal or bird, including any waterfowl, on such lands without having first obtained permission, as provided. According to the Assembly Water, Parks, and Wildlife Committee’s bill analysis, the stated purpose of the 1982 legislation “was to exclude the public so as to ‘provide needed protection to privately owned lands.’” (Chapter 1607, Statutes of 1982).
2. Then-Senator Byron Sher asked the Attorney General to provide an opinion on whether “the ‘overflow waters’ provision in Fish and Game Code section 2016 [is] constitutional in light of section 4 of Article X of the Constitution.” That section in the California constitution guarantees access to navigable waters by the public.
3. The Attorney General’s subsequent opinion (No. 85-602, dated October 10, 1985) found that FGC §2016 is constitutional with respect to non-navigable waters, but that the prohibition on use of navigable waters was unconstitutional. The opinion noted that the control of large seasonal water flows in the Sacramento and San Joaquin valleys often resulted in private property being inundated which attracts waterfowl and waterfowl hunters.
4. A second opinion from the Attorney General’s office (No. 97-307) dated November 12, 1997 found that the then-Department of Boating and Waterways had the authority to close navigable waters to recreational boaters during periods of emergency, such as flood conditions. The opinion noted the public’s right to use navigable waters for boating and recreation, and, citing the 1985 opinion, that the right of navigation includes the right to hunt from a boat.
5. This bill’s sponsors cite three instances from the last 20 or so years where a hunter in a boat on navigable flooded waters was cited or threatened with a citation for trespass.

Existing law:

1. States that no individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this state, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and that the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this state shall be always attainable for the people thereof (Section IV of Article X of the California Constitution).
2. Makes it unlawful to enter land for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land, without having first obtained written permission from the owner, the owner’s agent, or the person in lawful possession of that land, if either of the following applies:
   1. The land belongs to, or is occupied by, another person and is either under cultivation or enclosed by a fence, or
   2. There are signs forbidding trespass or hunting or both displayed at intervals not less than three per mile along all exterior boundaries and at all roads and trails entering those lands, including land temporarily inundated by water flowing outside the established banks of a waterway (FGC §2016).
3. Makes a person who unlawfully obstructs the navigation of any navigable waters guilty of a misdemeanor (Harbors and Navigation Code (HNC) §131).
4. Authorizes entities with jurisdiction, as specified, to adopt emergency rules and regulations relating to boats or vessels to ensure the safety of persons and property because of disaster or other public calamity, which can include the closure of navigable waterways to recreational boaters during periods of emergency (HNC §660).
5. Establishes the Fish and Game Commission (Commission) and delegates the authority to regulate the taking or possession of birds, mammals, fish, amphibians, and reptiles to the Commission (Section 20 of Article IV of the California Constitution; FGC §§200 et seq.).
6. Makes it unlawful to hunt or discharge a firearm within 150 yards of an occupied structure, or across a public road or other established way open to the public in an unsafe and reckless manner (FGC §3004).
7. Makes it unlawful for any person, while taking any bird, mammal, fish, reptile, or amphibian, to cause damage, or assist in causing damage, to real or personal property, or to leave gates or bars open, or to break down, destroy, or damage fences, or to tear down or scatter piles of rails, posts, stone, or wood, or, through carelessness or negligence, to injure livestock of any kind (FGC §2004).

PROPOSED LAW

This bill would modify the Fish and Game Code section prohibiting the use of temporarily inundated lands for hunting without permission to authorize the use of navigable waters. Specifically, this bill would:

1. Narrow the prohibition on hunting on lands temporarily inundated with water without permission, to a prohibition on hunting on lands temporarily inundated with non-navigable waters, as specified.
   1. State that the code section does not restrict the public’s right to use navigable waters for hunting, fishing, or other public purpose pursuant to Section IV of Article X of the California Constitution.
   2. Define navigable waters to include regular, seasonal flooding.
   3. Prohibit entry using non-navigable waters over legally restricted land, as provided.

ARGUMENTS IN SUPPORT

According to the author, “Our Constitution guarantees the public’s right to access and utilize navigable waters, including for the purposes of hunting and fishing. AB 859 clarifies and protects this important right, ensuring that Californians can continue to enjoy our state’s natural resources.”

ARGUMENTS IN OPPOSITION

None received

COMMENTS

Codifies the Attorney General’s opinions. This bill would codify the two opinions by the California Attorney General related to the permissibility of recreation and hunting on the navigable waters – even temporarily navigable waters – in the state. To the knowledge of Committee staff, these opinions have not been formally cited by a court. The statutory restriction on hunting in FGC §2016 would still apply to any non-navigable waters and lands that meet the signage and other requirements of that section.

Flooding frequency. According to the Oxford Dictionary, the first two definitions of “regular” are “arranged in or constituting a constant or definite pattern, especially with the same space between individual instances,” and “recurring at uniform intervals.” Despite the considerable human intervention into surface water flows, it seems unlikely that “regular” is an appropriate word to modify “seasonal flooding” in the sense that the interval between significant events is highly variable. In view of this, the Committee may wish to delete the adjective “regular.” [Amendment #1]

In the event of an emergency? In a recent story chronicling the successful attempt of two journalists to kayak from the recently-reformed Tulare Lake to San Francisco Bay, the two journalists were ordered away from one location due to an emergency closure of those waters (https://www.sfchronicle.com/outdoors/article/tulare-lake-kayak-18133683.php). It is important to note that navigability alone does not imply that the water is necessarily open for recreation or use for hunting where other laws – such as a local emergency – apply, and that the Legislature may regulate both hunting and boating. It is important to note that all other laws under the Fish and Game Code or other codes, such as those provisions in the Harbors and Navigation Code noted above, still apply. The Fish and Game Commission can still restrict or ban hunting anywhere in the state using its delegated authority, including banning all hunting upon specified navigable waters in certain situations.

Related legislation.

AB 1162 (Chesbro, Chapter 590, Statutes of 2012) expands the trespass sign provision to encompass signs forbidding trespass or hunting, or both, among other provisions.

AB 2132 (Houston, 2008) would have required signs forbidding trespass to be at least 8 1/2 by 11 inches in size, among other provisions. AB 2132 was vetoed by the Governor.

SUGGESTED AMENDMENTS

AMENDMENT 1

Page 2, line 23: please remove the word “regular,”

SUPPORT

California Waterfowl Association (sponsor)

Backcountry Hunters and Anglers

Black Brant Group

California Bowmen Hunters/State Archery Association

California Deer Association

California Hawking Club

California Houndsmen for Conservation

Cal-Ore Wetlands and Waterfowl Council

Congressional Sportsmen’s Foundation

Delta Waterfowl

Ducks Unlimited

Max McGraw Wildlife Foundation

Nor-Cal Guides and Sportsmen’s Association

Safari Club International

Safari Club International, Golden Gate Chapter

San Diego County Wildlife Federation

Suisun Resource Conservation District

Theodore Roosevelt Conservation Partnership

Tulare Basin Wetlands Association

OPPOSITION

None received

-- END --

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 859

Author:(Gallagher) – As Introduced Ver:February 14, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill restricts to non-navigable waters the application of provisions that make it unlawful to enter land temporarily inundated by water flowing outside the established banks of a waterway for the purpose of discharging a firearm or taking or destroying any mammal or bird on that land. This bill further states that nothing in the statute restricts the right of the public to use navigable waters for hunting, fishing, or other public purpose as guaranteed under Section IV of Article X of the California Constitution.

FISCAL EFFECT:

Potential cost savings to the court system as a result of fewer charges brought under Section 2016 of the Fish and Game Code for hunting on navigable floodwaters.

COMMENTS:

1) Purpose. According to the author:

Our Constitution guarantees the public’s right to access and utilize navigable waters, including for the purposes of hunting and fishing. [This bill] clarifies and protects this important right, ensuring that Californians can continue to enjoy our state’s natural resources.

2) Background. According to a coalition of outdoor recreation and conservation organizations writing in support of this bill:

This bill amends Section 2016 of the Fish and Game Code to make it consistent with a State Attorney General Opinion that found that hunting is an integral part of the public right of navigation; and, that Section 2016’s restriction on hunting navigable floodwaters is unconstitutional because it conflicts with Article X, Section IV of the California Constitution, which requires the State Legislature to protect the public’s access to navigable waters. A subsequent State Opinion also effectively reaffirmed this conclusion.

There are known cases of hunters in boats being cited for trespassing on navigable floodwaters. The Attorney General opinions referenced by the supporters of this bill are not widely known, and many law enforcement personnel as well as district attorneys are unaware of them. While judges generally dismiss charges brought under Section 2016 of the Fish and Game Code for hunting on navigable floodwaters, the legal process to that point can still impose significant financial and other costs for the accused and the court system.

This bill amends statute to ensure consistency with provisions of the California Constitution regarding the use of navigable waters for public purposes, including hunting by boat over land that is temporarily flooded and navigable. The statutory restriction on hunting in Section 2016 of the Fish and Game Code would still apply to any non-navigable waters and lands that meet the signage and other requirements of current law.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: April 18, 2023

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Rebecca Bauer-Kahan, Chair

ABPCA Bill Id:AB 859 (

Author:Gallagher) – As Introduced Ver:February 14, 2023

SUBJECT: Hunting: navigable waters

SUMMARY: Specifies that hunter trespass on private property is limited to lands and lands temporarily inundated by non-navigable waters, as specified, and that the right of the public to use navigable waters for hunting, fishing, or other public purpose is protected, consistent with the California Constitution. Specifically, this bill:

1. Restricts to non-navigable waters the application of provisions that make it unlawful to enter land temporarily inundated by water flowing outside the established banks of a waterway for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land.
2. States that nothing in this statute restricts the right of the public to use navigable waters for hunting, fishing, or other public purpose as guaranteed under Section IV of Article X of the California Constitution.

EXISTING LAW:

1. States that no individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this state, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and that the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this state shall be always attainable for the people thereof (Section IV of Article X of the California Constitution).
2. Makes it unlawful to enter land for the purpose of discharging a firearm or taking or destroying any mammal or bird, including waterfowl, on that land, without having first obtained written permission from the owner, the owner’s agent, or the person in lawful possession of that land, if either of the following applies:
   1. The land belongs to, or is occupied by, another person and is either under cultivation or enclosed by a fence, or
   2. There are signs forbidding trespass or hunting or both displayed at intervals not less than three per mile along all exterior boundaries and at all roads and trails entering those lands, including land temporarily inundated by water flowing outside the established banks of a waterway [Fish and Game Code (FGC) § 2016].
3. Makes a person who unlawfully obstructs the navigation of any navigable waters guilty of a misdemeanor [Harbors and Navigation Code (HNC) § 131].
4. Declares the unlawful obstruction of the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, among other provisions, a public nuisance (Penal Code § 370; Civil Code § 3479).
5. Authorizes entities with jurisdiction, as specified, to adopt emergency rules and regulations relating to boats or vessels to ensure the safety of persons and property because of disaster or other public calamity, which can include the closure of navigable waterways to recreational boaters during periods of emergency (HNC § 660).
6. Establishes the Fish and Game Commission and delegates the authority to regulate the taking or possession of birds, mammals, fish, amphibians, and reptiles (Section 20 of Article IV of the California Constitution; FGC § 200 et seq.).
7. Makes it unlawful to hunt or discharge a firearm within 150 yards of an occupied structure, or across a public road or other established way open to the public in an unsafe and reckless manner (FGC § 3004).
8. Makes it unlawful for any person, while taking any bird, mammal, fish, reptile, or amphibian, to cause damage, or assist in causing damage, to real or personal property, or to leave gates or bars open, or to break down, destroy, or damage fences, or to tear down or scatter piles of rails, posts, stone, or wood, or, through carelessness or negligence, to injure livestock of any kind (FGC § 2004).

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

1. Purpose of this bill. This bill amends statute to ensure consistency with provisions of the California Constitution regarding the use of navigable waters for public purposes, including hunting by boat over land that is temporarily flooded and navigable. The statutory restriction on hunting in FGC § 2016 would still apply to any non-navigable waters and lands that meet the signage and other requirements of that section. According to the author, “our Constitution guarantees the public’s right to access and utilize navigable waters, including for the purposes of hunting and fishing. [This bill] clarifies and protects this important right, ensuring that Californians can continue to enjoy our state’s natural resources.”
2. Background. Generally, navigable waters “are capable of being navigated by oar or motor-propelled small craft. […] Navigability may be found despite the fact that the water overlies the land only a seasonal basis.”^[1] HNC § 100 states that navigable waters and all streams of sufficient capacity to transport the products of the country are public ways for the purposes of navigation and of such transportation. This section also specifies that the floodwaters of any navigable river, stream, slough, or other watercourse while temporarily flowing above the normal high-water mark over public or private lands outside any established banks of such river, stream, slough, or other watercourse are not navigable waters and that nothing in HNC § 100 shall be construed as permitting trespass on any such lands. For the purposes of HNC § 100, floodwaters refers to the elevation of water which occurs at extraordinary times of flood and does not mean the water elevation of ordinary annual or recurring high waters resulting from normal runoff. HNC §§ 101 - 106 enumerate certain waterways as being navigable. However, the Attorney General opinion details case law that supports the assertion that “[d]esignation of some waters does not, however, preclude other waters from being found to be navigable in law or in fact.”^[2]
   
   In 1982 (Chapter 1607, Statutes of 1982), the Legislature amended FGC § 2016 to protect the interests of private property owners with regard to the presence of hunters boating over their lands without their permission. The stated purpose of the 1982 legislation “was to exclude the public so as to ‘provide needed protection to privately owned lands.’”
   
   The changes made in 1982 are in conflict with the public’s right to utilize navigable waters for public purposes per Article X, Section IV of the California Constitution. This section protects access to navigable waters consistent with the public trust, and states “the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.”
   
   Attorney General opinions. California Attorney General Opinion No. 85-602, dated October 10, 1985, found that “the ‘overflow waters’ provision of [FGC § 2016] is unconstitutional in its application to navigable waters of the state due to conflict with section 4 of article X of the Constitution. Section 2016 is, however, constitutional as applied to ‘non-navigable waters’ which are those not useable by small craft or in which the state holds no sovereign fee or public trust interest.”
   
   Case law cited in the opinion summarizes the public’s ability to use all navigable waters for recreational purposes, irrespective of the underlying land being in private ownership. “The owners of lands under navigable waters, however, do not have an interest in the waters that would be protectable by the Legislature as contemplated in [FGC § 2016].”^[3] The opinion recognizes that the constitutional right of navigation is unaffected – i.e. traveling by boat over the lands in question does not violate the statute – since FGC § 2016 is only directed at hunting. However, a previous court decision in Forestier v. Johnson (1912) found that “hunting of wild game […] is a privilege which is incidental to the public right of navigation.” Attorney General Opinion No. 97-307 also mentions this and an additional legal analysis comes to a similar conclusion.^[4],[5]
   
   Recent related issues. There are known cases of hunters in boats being cited for trespassing on navigable floodwaters. The Attorney General opinions are not widely known, and many law enforcement personnel as well as district attorneys are unaware of them. While judges generally dismiss charges brought under FGC § 2016 for hunting on navigable floodwaters, the legal process to that point can still incur significant financial and other costs for the accused and the court system. The sponsors of this bill provided the following recent examples:
   In the late 2000s, a hunter using navigable floodwaters was cited under Section 2016 of the Fish and Game Code by a law enforcement officer for hunting via boat on the Cosumnes River in Sacramento County. During the hearing, the judge was given the relevant State Attorney General’s opinions on hunting on navigable waters and the Constitutional protections for that activity. The judge ultimately dismissed the trespassing charge, citing the information and conclusions in the State Opinions.
   
   In the late 2010s, a hunter in the Butte Sink area of Sutter County was hunting by boat on navigable floodwaters and was approached by a local private landowner, who threatened the hunter and then told them to leave immediately or that the sheriff would be called. The hunter left for fear of a further confrontation with the landowner, and did not return to that hunting location for the rest of the season.
   
   In January of 2023, a hunter in the Yolo Bypass was warned by a state law enforcement officer that they may be trespassing when hunting by boat during flood conditions. The hunter’s information was taken but they were not cited; however, the law enforcement officer referred the issue to the Yolo County District Attorney, who has yet to charge the hunter with trespassing or any other crime.
   
   Management of hunting. It is important to note that all other laws under the FGC or other codes still apply, and the Fish and Game Commission can still restrict or ban hunting anywhere in the state, including banning all hunting upon specified navigable waters in certain situations. See the Existing Law section for some examples.
   
3. Arguments in support. A coalition of organizations write in support, stating that this bill “will not only help ensure that sportsmen exercising their rights on navigable floodwaters are not wrongly cited for trespassing, but will save the court system time and money.”
4. Related legislation. AB 1162 (Chesbro), Chapter 590, Statutes of 2012, expands the trespass sign provision to encompass signs forbidding trespass or hunting, or both, among other provisions.
   
   AB 2132 (Houston) of 2008 would have required signs forbidding trespass to be at least 8 1/2 by 11 inches in size, among other provisions. AB 2132 was vetoed by the Governor.

REGISTERED SUPPORT / OPPOSITION:

Support

Backcountry Hunters and Anglers, California Chapter
Black Brandt Group
Cal-Ore Wetlands and Waterfowl Council
California Bowmen Hunters/State Archery Association
California Deer Association
California Hawking Club
California Houndsmen for Conservation
California Waterfowl Association
Congressional Sportsmen's Foundation
Delta Waterfowl
Ducks Unlimited
Max McGraw Wildlife Foundation
Nor-Cal Guides and Sportsmen's Association
Safari Club International
Safari Club International - San Francisco Bay Area Chapter
San Diego County Wildlife Federation
Suisun Resource Conservation District
Theodore Roosevelt Conservation Partnership
Tulare Basin Wetlands Association

Opposition

None on file

Analysis Prepared by: Keith Cialino / W., P., & W. / (916) 319-2096

1. California Attorney General Opinion No. 85-602, https://www.oag.ca.gov/system/files/opinions/pdfs/85-602_0.pdf ↑

2. Ibid. ↑

3. Ibid. ↑

4. California Attorney General Opinion No. 97-307, https://oag.ca.gov/system/files/opinions/pdfs/97-307.pdf ↑

5. Berrey, A.R. (1984). Public Access to Lands Annually Flooded: A Constitutional Analysis of Section 2016 of the California Fish and Game Code, 16 Pac. L. J. 353. Accessed 4/5/2023 at https://scholarlycommons.pacific.edu/mlr/vol16/iss1/9 ↑