BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 665


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          665 (Frazier)


          As Amended  August 18, 2015


          Majority vote


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          |ASSEMBLY:  |77-0  |(April 30,     |SENATE: |26-11 |(September 8,    |
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          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  








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            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.










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          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  








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          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  








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          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  








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          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