BILL ANALYSIS Ó AB 665 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 665 (Frazier) As Amended August 18, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |77-0 |(April 30, |SENATE: |26-11 |(September 8, | | | |2015) | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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 AB 665 Page 2 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. AB 665 Page 3 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 AB 665 Page 4 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 AB 665 Page 5 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 AB 665 Page 6 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