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Trapping Laws
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| On June 16, 2000, Voices For Pets sent the following information to the mayor and city council in each Bay Area City and the county supervisors in each Bay Area county:
Please urge your city mayor and country supervisors to implement and support legislation banning body crushing traps. |
Letter sent to the mayor and city council in each Bay Area city and the county supervisors in each Bay Area county:
June 16, 2000
Dear Mayor:
Please read and share the enclosed material with your city council members and consider if you are willing to help ban body-crushing traps in the neighborhoods of your city and also as a city government ask that your county board of supervisors ban body-crushing traps in the county.
In 1998, an overwhelming majority of California voters passed Proposition 4, which banned leghold and other body-crushing traps. However, the passage of Proposition 4 (which was badly worded, with many loopholes) has not succeeded in ending the use of these traps, as the trappers are ignoring it and claiming that it does not apply to them. Trappers continue to set traps alongside county roads and city streets, in parks and open fields, between residential houses and in public storm drains. These body-crushing traps do not discriminate between squirrels, raccoons, birds, endangered species, pets, or children, and they are used in our neighborhoods.
Proposition 4 did one thing: It proved that an overwhelming majority of voters want these traps banned. It is now up to the cities and counties to ensure that the will of the voters is carried out, by creating local ordinances that ban the use of these traps within city/county borders. This is about a city's/county's ability to protect its citizens, no doubt dictated by its charter.
Bay Area cities and counties have evolved from rural communities as existed in the 1950s to suburban communities highly populated by families, with children and pets, whose family members are endangered by the use of body-crushing traps. These traps constitute a danger to the population and are no longer safe and appropriate for continued use.
Please find enclosed a copy of the State Attorney General's opinion and related material.
If you have any questions, please feel free to contact:
Leroy Moyer, Director
Voices For Pets
P.O. Box 30836
Walnut Creek, CA 94598
(925) 685-5388
Camilla Fox
Animal Protection Institute
P.O. Box 22505
Sacramento, CA 95822
(916) 731-5521
Sincerely,
Leroy Moyer, Director
Voices For Pets
Enclosures
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California State Attorney General's Opinion on trapping legislation
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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OPINION :
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Of : No. 86-607
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JOHN K. VAN DE KAMP : SEPTEMBER 3, 1987
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
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THE HONORABLE PETER R. BONTADELLI, ACTING DIRECTOR OF THE DEPARTMENT OF FISH AND GAME, has requested an opinion on the following question:
May a county prohibit the use of steel-jawed leghold traps within its jurisdiction?
CONCLUSION
A County may, by ordinance, ban the use of steel-jawed leghold traps within its jurisdiction where such action is necessary to protect the public health and safety and where the ordinance only incidentally affects the field of hunting preempted by the Fish and Game Code.
ANALYSIS
A steel-jawed leghold trap is a spring-powered device used to trap animals with two metal jaws that clamp shut on an animal's leg when it steps on the trap's pressure-sensitive trigger. Some have urged banning the use of such traps because they consider it cruel to the animals caught in them. Since a trap is nonselective, it is indiscriminate in what it snares, and persons (especially children), pets, and other non-targeted animals have been caught in them. These considerations have prompted the enactment in at least one county of an ordinance banning the use of steel-jawed leghold traps throughout the county. Livestock owners oppose such bans claiming that traps offer an effective means of controlling coyotes, dogs and other predators from preying on their livestock. The Fish and Game Code permits the taking of certain animals by the use of steel-jawed leghold traps. We are asked whether a county ordinance prohibiting the use of steel-jawed leghold traps within the jurisdiction of the county is preempted by state law.
Article XI, section 7 of the California Constitution provides that a county "may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general law." This legislative authority is often referred to as the "police power", a power local legislative bodies share with the State Legislature. Regulating the taking of fish and game is within the police power. (Ex Parte Maier (1894) 103 Cal. 476, 483.) Before the turn of the century the regulation of fish and game was accomplished both by the state law (ch. 1, tit. XV of the Penal Code entitled "Violations of the Laws for the Preservation of Game and Fish" commencing with § 626) and by local ordinances.
In 1902 the people adopted article IV, section 25 1/2 of the Constitution providing:
"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 therein as it may deem appropriate to the respective districts."
In Matter of Application of Cencinino (1916) 31 Cal.App. 238, 244 the court held that by enacting article IV, section 25 1/2 of the Constitution the people had withdrawn and taken from counties and cities whatever power they might have exercised over the subjects of fish and game and that the counties and cities were "no longer authorized to legislate upon or in any manner or degree interfere in the matter of the pursuit of fish and game." The Supreme Court gave its approval to the holding in the Cencinino case in In re Makings (1927) 200 Cal. 474, 477-478 and reiterated (at p. 479) that "it was the purpose of this amendment to the constitution to take from local authorities the right to regulate the fish and game of the state and to invest such power exclusively in the legislature."
Thus the power of counties to adopt ordinances
regulating the pursuit of fish and game terminated in 1902 with the adoption
of Article IV, section 5 1/2 (now art. IV, § 20) of the Constitution.
Insofar as a county ordinance undertakes to regulate the field of law
regarding fish and game which article IV, section 20 reserves to the
Legislature, it is void. However, counties are still empowered by article
XI, section 7 to legislate other matters within the police power which
are not preempted by state law such as ordinances
which protect the health and safety of persons.
It is apparent that an ordinance may serve more than one purpose and affect more than one field of law. Such is the case with the ordinance presented in this opinion request. Since the persons may get caught in steel-jawed leghold traps, prohibiting their use is clearly a measure which protects their health and safety. It is equally clear that prohibiting the use of such traps
affects the taking of furbearing animals in a manner authorized by the Fish and Game Code. Since counties are authorized to legislate such a prohibition as a health and safety measure but not as a fish and game regulation how is the validity of such a prohibition to be determined? We think the answer is found in the case of People v. Mueller (1970) 8 Cal. App. 3d 949.
In Mueller the city adopted an ordinance prohibiting the deposit of garbage, refuse and waste matter in the waters of its harbor. One of its provisions was that "No person shall place or allow to be placed any live or dead bait in the unconfined harbor [sic] of the Harbor except when such bait is attached to a hook in the act of fishing." The defendants were convicted of violation of this provision in the ordinance as a result of their method of fishing in the harbor. Such fishing involved suspending a light over the water in a particular place and throwing bait called "chum" within the lighted circle and scooping up fish attracted to the surface by the chum using net-like chickenwire scoops on the end of long poles. On appeal the defendants contended that the provision of the ordinance on which they were convicted was void because it constituted a limitation upon methods of fishing and was void because it invaded an area of regulation preempted by the Fish and Game Code.
In addressing the preemption argument the Mueller court noted that the purpose and scope of the ordinance was the prevention of pollution of the waters of the harbor and that nothing in state law preempted the field of prevention of local water pollution. The court also noted that the state has preempted the field of fishing citing In re Cencinino, supra. The court's opinion then states (at 954):
"That proposition, however, is not determinative of the validity of the challenged ordinance. Preemption by the state of an area of the law does not preclude local legislation enacted for the public safety which only incidentally affects the preempted are. [Fn.] Protection against pollution equates with protection of the public safety."
The footnote reads: "It seems beyond question, for example, that a municipality is empowered to prohibit fly casting from crowded piers or docks to protect members of the public from being snagged by a low back cast."
The court held that the effect of the ordinance on fishing "is incidental to the principal purpose of the legislation," the prevention of pollution, and that coverage of the field of regulation of fishing by the Fish and Game Code thus did not invalidate the local ordinance. The judgments of conviction were affirmed.
The Mueller case governs the answer to the question presented in this opinion request. Like the ordinance in Mueller the ordinance prohibiting steel-jawed leghold traps has two apparent purposes. One is the regulation of hunting preempted by the Fish and Game Code, the other the protection of public safety within the county's police power. The Mueller case requires a determination of the principal purpose of the ordinance and whether the ordinance affects the preempted field of hunting incidentally. If the principal purpose of the ordinance is the protection of public safety and it affects hunting incidentally, the ordinance is a valid exercise of the county's police power.
The request for the opinion in this case did not provide us with any basis for a determination of the principal purpose of the ordinance. Thus our response must be conditioned upon the determination a court would make when confronted by a particular ordinance and evidence concerning its purpose and the effect it will have on hunting in the area covered thereby.
A court's determination in this regard would no doubt be influenced by a number of factors. Any evidence in the ordinance or its legislative history regarding the purpose of its enactment would be very significant. However, a court could not be bound by a declaration of the board of supervisors as to the purpose of the ordinance when evidence indicates some other purpose was the principal motivation for its enactment. (Coulter v. Pool (1921) 187 Cal. 181.) The nature of the area affected by the ordinance, its impact upon the trapping of game and furbearing mammals, and the degree to which the public has access to and utilizes the area will be significant. Thus an ordinance banning steel-jawed leghold traps in the City and County of San Francisco, an almost entirely urbanized area, would likely be held to have public safety as its principal purpose with hunting only incidentally affected. On the other hand, contrary findings might be expected with respect to the same ban in a rural county with a significant fur trapping tradition.
In 58 Ops.Cal.Atty.Gen. 519 (1975) we concluded that while a city ordinance may restrict the shooting of bows and arrows in those areas of the city where such a restriction is reasonably justified by public safety requirements, such an ordinance may not indiscriminately extend to areas wherein public hunting may take place without endangering human life or property. In that opinion we considered and applied the Mueller case in a manner which now gives us pause. On page 528 we distinguished between the ordinance banning the use of bows and arrows within the City of Burbank and the ordinance in Mueller. First we noted that the Mueller ordinance did not prohibit the activity of fishing but merely a collateral activity - chumming. The opinion then states:
"The hunting ordinance before us absolutely prohibits the activity of hunting - a field of regulation similarly occupied by state constitutional and statutory provisions. This ordinance poses more than an incidental effect, it prohibits the entire activity within the city limits."
We believe the quoted language needs correction. The Burbank ordinance did not absolutely prohibit the activity of hunting, it prohibited only the use of bows and arrows. Just as the Mueller ordinance did not prohibit the activity of fishing, only the collateral activity of chumming, the Burbank ordinance did not prohibit the activity of hunting, but only the use of bows and arrows. The statement in the last sentence quoted above that the Burbank ordinance prohibits the entire activity (of hunting) within the city limits is therefore too broad and thus does not support the preceding conclusion that the ordinance poses more than an incidental effect (on hunting). Insofar as said opinion asserts that the effect of a ban on the use of bows and arrows on hunting could never be incidental it is disapproved. Whether a ban on a particular means of hunting has an incidental affect on hunting or not is a question of fact to be decided upon the evidence in the particular case as we have indicated above.
We conclude that a county may, by ordinance, ban the use of steel-jawed leghold traps within its jurisdiction where such action is necessary to protect the public health and safety and where the ordinance only incidentally affects the field of hunting preempted by the Fish and Game Code.
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An Act Prohibiting the Use of Body-Gripping Devices
Sec. 1 Intent
It is the intent of the City Council/County Board to protect public health and safety, and animal welfare by prohibiting the use of body-gripping devices. The ordinance is necessary to preserve wild animals and prevent the unselective catching, maiming of wild animals including birds, endangered and threatened species, and companion animals, as well as injury to children and adults that come into contact with these devices.
Sec. 2 Definitions
A. "Body-gripping device" includes, but is not limited to, any snare (neck, body, or leg), kill-type trap (Conibear), leghold trap (steel-jaw, padded, and offset), and any other device designed to grip a body or body part. Cage and box traps, suitcase-type live beaver traps, and common rat and mouse traps shall not be considered body-gripping devices.
B. "Person" means any individual, partnership, corporation, organization, trade or professional association, firm, limited liability company, joint venture, association, trust, estate, or any other legal entity and any officer, member, shareholder, director, employee, agent or representative thereof.
Sec. 3 Prohibitions
A. It shall be unlawful for any person to set or use, or attempt to set or use, a body-gripping device of any kind designed or intended to take hold of, capture or kill any animals within city/county limits.
B. It shall be unlawful for the owner, possessor, or any other person in control of a lot, tract, or parcel of land within city/county limits or any residence or business premises situated thereon to knowingly permit the use of a body-gripping device upon the property, residence or premises.
Sec. 4 Exemptions
A. The provisions of this act shall not prohibit federal, state, county, or municipal government employees or their duly authorized agents from using a Conibear trap in water, padded-jaw leghold trap, or non-strangling foot snare where use of such device is the only method available to protect human health and safety.
B. The provisions of this act shall not prohibit federal or state employees or their duly authorized agents from using a Conibear trap in water, padded-jaw leghold trap, or non-strangling type foot snare where use of such device is the only means of protecting threatened and endangered species, as listed under the Federal and State Endangered Species Act.
Sec. 5 Impounding of Body-Gripping Devices
Whenever a body-gripping device is used contrary to the prohibitions outlined in this Act within the confines of the city/county, the same may be impounded by any duly authorized police officer or by any State Fish and Game Warden until judicial action occurs.
Sec. 6 Violations - Penalties
Conduct made unlawful by Section 3 of this ordinance constitutes a misdemeanor and shall be punishable as a misdemeanor. Each misdemeanor violation under this act shall be subject to a fine not to exceed five thousand dollars ($5,000) or imprisonment not to exceed one year or both fine and imprisonment.
For further information or assistance with drafting and introducing legislation on prohibiting trapping in your city or county, contact Camilla Fox at:
Animal Protection Institute.
P.O. Box 22505, Sacramento, CA 95822
(916) 731-5521
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Why We Need City and County Trapping Ordinances
The following are only two examples of trappers and their activities that demonstrate why the city and county need an ordinance to protect their citizens.
 Trapper James Schmerker (pictyure at right), who advertises in the Yellow Pages as "animal damage control," has been killing our wildlife and pets for many years. In one 2-month period, Schmerker set body-crushing traps in Emeryville, Lafayette, and Danville that killed three pet cats and injured one dog. These traps were set in residential neighborhoods, like yours, on walkways, between houses, in storm drain openings at the curb, etc. It is only a question of time before a child is injured or killed. Wherever these traps are set, wildlife and pets do disappear. What is unusual is for a family to find their pet in a trap before the body is disposed of.
At the Watergate Condominiums in Emeryville, the homeowners' association manager hired Schmerker to set traps throughout the property without notifying the people who live there, endangering not only wildlife but adults, children, and pets. Even after six-year-old Michael, a much-loved family cat, was crushed and killed in a trap, the traps were not removed. Dr. Marybeth Rymer, a veterinarian who lives at Watergate and found her cat crushed to death, said, "One evening a week later, several of us standing on the boardwalk helplessly watched in dismay as a screaming raccoon frantically fought a trap on his leg. As he stumbled across the boulders, he fell into the bay and drowned. We have also heard the heart-wrenching sounds of raccoons trapped and dying while sleeping at night." The traps were still not removed. Three months later, a number of people witnessed a trapped raccoon in the opening of a sidewalk storm drain next to the tennis court. One witness was missing two pet cats. When she asked the trapper and the Watergate Management about her pets, she was told "no cats have been killed."
In a Danville residential neighborhood, Mack Gardner at 112 Gerald Drive hired Schmerker to trap raccoons. On December 7, 1999, a woman walking her dog stopped to talk with Mr. Gardner. Her dog, Jimmy, wandered through an open gate and was injured, with his head caught in a trap, but was rescued before he died. The traps were not removed. Four days later, a 12-year-old cat, Soccer, was found by his family crushed to death.
In Emeryville, Lafayette, and Danville, when the families did find their pet dead in a trap, Schmerker said "I have a license and there is nothing you can do about it." Because of media coverage, Contra Costa Animal Control checked and discovered that Schmerker had not been licensed since 1995 and charged him with two misdemeanors, which is no more than a minor traffic violation.
In both the trapping case, and an unrelated case in which both Schmerker and his wife are charged with possessing methamphetamine and concealed handguns, Schmerker has shown up for court wearing grimy overalls with blood spatters on his legs and a California Trappers Association patch on his shoulder. During one court break on April 20, Dianne Schmerker followed me down and back up the stairs saying things like, "We know where you live and we know you have pets."
Schmerker is not the only trapper in our neighborhoods. Look in the Yellow Pages under Animal Trappers and under Pest Control. I am not talking about people who spray for ants and termites. I am talking about trappers who cripple and kill our wildlife and pets and endanger our children.
Richard Harrell, who advertises in the Yellow Pages as Dick's Pest Control, claims 20 years of experience.
On September 26, 1997, two women out for a morning walk in Martinez found a suffering baby raccoon caught in a leghold trap and called Contra Costa County Animal Control. Lt. Abe Gamez reported that CCC Animal Control found the injured raccoon with its leg nearly severed, and that the trap was set only three to four feet from the public roadway. Animal Services euthanized the raccoon and confiscated three leghold traps.
That afternoon, a man named Richard Harrell entered the office at Animal Services in Martinez. According to Gamez, "Mr. Harrell was irate. He had a small caliber rifle slung over his shoulder and what appeared to be a .38 caliber revolver tucked in the back of his waistband. He was upset that we had removed three of his steel-jawed traps from where he had set them, and he wanted them back." Harrell insisted he checked them every 24 hour. Because Harrell had a license, Animal Control had to give him back the traps.
On October 6, 1998, in a Concord residential neighborhood, 47-year-old Harrell was arrested for cruelty to an animal and reckless discharge of a firearm near Ayers Elementary School. Harrell, using a steel-jawed leghold trap, had trapped a raccoon at another location and taken it to a field between his backyard on Laurel Drive and Ayers School. Harrell released the raccoon so that he could shoot it with a scoped rifle. This was done during school hours with children present.
Concord Police said that Harrell had a license to trap, so no cruelty to animal charge was warranted and as for discharging a firearm in a residential neighborhood, "This was simply a man disposing of an animal in an inappropriate manner."
And what about the victims? For the homeless pets, their only crime is that they are homeless. For the pets that have homes and families, their only crime is that they went exploring in their own neighborhood. For the wildlife, their only crime is that they exist.
These body-crushing traps do not discriminate between squirrels, raccoons, birds, endangered species, pets, or children. And they are used in your neighborhood. |
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