California Fish & Game Commission Hearing

Last Thursday I attended the California Fish & Game Commission hearing for the vote to publish the intent to amend the falconry regulations. The hearing gave the falconry community an opportunity to discuss the many issues that are still not ironed out in California’s falconry regulations. We were supposed to have an opportunity to clean up regulations that were put through hastily in order to meet the Federal requirement for state falconry regulations, but what we were presented with was worse than the regulations already in play. Based upon this round of discussions we cleared up only a few points of contention and the big one still under discussion is the warrantless residential inspection of falconers.
As everyone knows, California is the lion’s den of animal rights extremists, which is why I feel it is imperative to eliminate the warrantless residential inspections of falconers here. The last thing we want to see is a card carrying PETA member with a gun and a badge entering our premises.
As a reminder the AFC had filed a separate petition to repeal the inspection language in the regulations. Rather than debate whether the state can violate the 4th Amendment in our absence or presence is much like rearranging the deck chairs on the Titanic. The first requirement of California rulemaking is that the agency publish the statutory authority for the proposed rule and it must be published in the California Code of Regulations, which was never done. As a result this regulation is illegal on its face.
The AFC’s petition to repeal was approved for the Agenda, but to my dismay was ultimately refused to be discussed as a separate issue by the Board since the general falconry regulations were already up for Board consideration. Although they would not discuss the petition as a separate issue they did receive the documentation and it gave me another opportunity to address the Commissioners on the record.
Speaking of speakers, I want to take the opportunity to offer my thanks to the following falconers who spoke before the Board: Eric Ariyoshi, California Hawking Club Directors Pete Martin and Marten Benatar, Karl Kerster, Doug Alton and of course the Dense Beard of Justice Peter Stavrianoudakis! I was delighted to have an opportunity to work with them on this issue and we will post some video clips soon. In the meantime you can view the entire meeting at http://www.cal-span.org/media.php?folder[]=CFG and click on August 28, 2016. The falconry section starts at 5:13:00.
Based upon the objection that the authority for inspection language in the falconry regulations was not provided in our state law, the question was asked of Ann Malcolm the Assistant Chief Counsel for the California Department of Fish and Wildlife (CDFW). Below is her response:
“If I remember the question correctly it was, does the department have the authority to conduct inspections when the member of the regulated community is not present? The answer is yes. The authority to conduct inspections without a warrant really derives not just from statute, but a body of case law that deals with what are called highly regulated industries…… Falconry, along with hunting, fishing, daycare centers, and nursing homes are all heavily regulated industries that the courts have acknowledged give law enforcement the authority to enter into premises…..”
Frankly I was shocked to hear a state lawyer proclaim that the 4th Amendment protection from warrantless searches does not extend to those that have purchased a hunting and/or fishing license. I thought that since falconry is such a small community, fish and game officials felt emboldened to step on our rights, but that they would never dare take on such a large constituency as hunters and fisherman. Times have changed and I certainly was proven wrong!
It is worth noting that she never did answer the question. In the regulatory rule making process the term “authority” means the state statute which permits an agency to adopt a regulation. She did not cite the statute authorizing the residential searches of hunters and fisherman because it does not exist. This clearly demonstrates how far our wildlife officials have strayed from the law.
Fortunately it does appear that our cries of a 4th Amendment violation may have finally been heard. CDFW Director Bonham and the Commission have now said they are committed to carefully vetting this issue. We feel confident that in order to comply with state statute and the 4th Amendment, this language will need to be removed from regulation. The next meeting with the Commission is scheduled for October 20th. I will let you know if there is any significant development before that time.
Troy Morris
AFC President