California DFG. Mcpherson Act. Senate bill 329. Depredation hunts

[bigboarstopper]

Can a dfg officer explain the Mcpherson act? (senate bill 329) There are major disgrepancies in the wording of the law and how dfg wardens seem to procieve it.

[#1Predator]

Sorry about the long reply but there are a number of things consider here.

SB329 changes existing depredation law regarding wild pigs. Keep in mind, a depredation permit is a "license" to poach, that is, no license or tags are required; animals can be killed day or night; any weapon may be used (as described on the permit); open season all year; and no limit (unless a limit is imposed within the permit requirements).

When wild pigs were killed in the act of causing property damage or when a property owner with a depredation permit killed hogs causing damage, the property owner was required to turn over the carcasses of the hogs to the DFG. No part of the hog could be used or possessed by the property owner nor could it be given away (say, to a church food bank, a neighbor, etc.) if the hog was killed under the existing depredation law. DFG generally ordered the property owner to dispose of the carcass in accordance with local health code laws (burn it or bury it no less than two feet deep). IMHO, a waste.

The law was written this way to remove any incentive a property owner may have in order to gain some benefit from the depredation permit, i.e., he had a license to poach year-round while the rest of us had to follow the rules (license, tags, hunt only during the day, limited methods of take, etc.). IMHO, still a waste of a game animal.

SB329 will change a few things. 1) Property owners will now be able to make arrangements to donate or otherwise utilize the killed hogs instead of wasting good meat (per SB329, "The bill would require the person possessing the carcass to make use of the carcass and would authorize the transfer of the carcass to another person or entity without compensation."); 2) Arrangements could be made to live trap and relocate hogs causing damage (per SB329, "Live trapping and relocation of wild pigs to areas suitable and accessible to mitigation of depredation, with the consent of the landowner and after prior consultation with adjacent landowners who, in the department’s opinion may be impacted, pursuant to this chapter."); and 3) (I like this one a lot :smiley_yahoo:) SB329 would encourage mitigation of depredation by sport hunting under FGC section 4181.2(b)(4).

SB329 also says (section 4181(c)), "With respect to wild pigs, the department shall provide an applicant for a depredation permit to take
wild pigs or a person who reports taking wild pigs pursuant to subdivision (b) of Section 4181.1 with written information that sets forth available options for wild pig control, including, but not limited to, depredation
permits, allowing periodic access to licensed hunters, and holding special hunts authorized pursuant to Section 4188. The department may maintain and make available to these persons lists of licensed hunters interested in wild pig hunting and lists of nonprofit organizations that are available to take possession of depredating wild pig carcasses."

There are lots of good changes here including the fact that the DFG now has to provide, in writing, viable options for the property owner to consider, including legal sport hunting. Most wardens were all ready verbally advising property owners of the sport hunting option but having it in writing might make a difference.

[bigboarstopper]

Im a little confused by all that. From what I understand from senate bill 329 is that Hogs encountered causing damage or threating to cause damage may be killed by agents of the property with out licence, tags, 24 hours a day. Once hogs have been encountered there is a 24 hour window of persuit.

[Marty]

Not without the depredation permit.

[bigboarstopper]

senate bill 329 explains what I just wrote pretty clearly.

[WildlifeBranch]

For anyone not familiar with this topic, Mcpherson's bill is now (and has been for several years) part of 4181... 4181.1 of Fish and Game Code-

California Laws: Fish and Game Code (CA Codes fgc) - Criminal Law Resources (http://www.suspect.com/laws/California-Codes/Fish-and-Game-Code/index.html)

and the "encounter" section for landowners is described. The "encounter" section is not the same as a depredation permit.

As wild pig is a "big game" animal, legal methods of take are those for big game as described in Section 353 of the regulations (Title 14, California Code of Regulations):

http://weblinks.westlaw.com/result/default.aspx?action=Search&cfid=1&cnt=DOC&db=CA-ADC&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=CI%28%2214+CA+ADC+S+353%22%29&rlt=CLID_QRYRLT245175381212&rltdb=CLID_DB7476155381212&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=GVT1.0&service=Search&sp=CCR-1000&srch=TRUE&ss=CNT&sv=Split&tempinfo=FIND&vr=2.0

Eric

[#1Predator]

For anyone not familiar with this topic, Mcpherson's bill is now (and has been for several years) part of 4181... 4181.1 of Fish and Game Code-

California Laws: Fish and Game Code (CA Codes fgc) - Criminal Law Resources (http://www.suspect.com/laws/California-Codes/Fish-and-Game-Code/index.html)

and the "encounter" section for landowners is described. The "encounter" section is not the same as a depredation permit.

As wild pig is a "big game" animal, legal methods of take are those for big game as described in Section 353 of the regulations (Title 14, California Code of Regulations):

http://weblinks.westlaw.com/result/default.aspx?action=Search&cfid=1&cnt=DOC&db=CA-ADC&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=CI%28%2214+CA+ADC+S+353%22%29&rlt=CLID_QRYRLT245175381212&rltdb=CLID_DB7476155381212&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=GVT1.0&service=Search&sp=CCR-1000&srch=TRUE&ss=CNT&sv=Split&tempinfo=FIND&vr=2.0

Eric

"Encounter(ed)" is covered under 4181.1(b) as follows:

(b) Notwithstanding Section 4652, any wild pig that is encountered while in the act of inflicting injury to, molesting, pursuing, worrying, or killing livestock or damaging or destroying, or threatening to immediately damage or destroy, land or other property, including, but not limited to, threatened rare rare, threatened, or endangered native plants, wildlife, or aquatic species, may be taken immediately by the owner of the livestock, land, or property or the owner’s agent or employee, or by an agent or employee of any federal, state, county, or city entity when acting in his or her official capacity. The person taking the wild pig shall report the taking no later than the next working day to the department and shall make the carcass available to the department. Unless otherwise directed by the department and notwithstanding Section 4657, the person taking a wild pig pursuant to this subdivision, or to whom the carcass of a wild pig taken pursuant to this subdivision is transferred pursuant to subdivision (c), may possess the carcass of the wild pig.

In this subsection the property owner, owner's agent or an employee of the owner may immediately kill a pig caught doing damage or threatening to immediately do damage to land or property of the owner. (No mention is made of a 24 hour window of pursuit and none exists. "Immediately" literally means "at that moment".). If a pig is killed under the authority of this section, the DFG must be notified the next business day. No mention is made of having to obtain a depredation permit prior to "immediately" taking the pig (although, pending an investigation, a depredation permit can be issued "after the fact", section 4181.1(c)).

"Immediately" includes daytime or nighttime encounters. Big game sport hunting hours are between 1/2 before legal sunrise to 1/2 hour after legal sunset. This subsection does not restrict the hours during which a pig (doing damage) may be killed, therefore this cannot be considered a sport hunting occurrence. It follows that if this is not a sport hunting occurrence, then section 353, CCR, T-14 (regarding legal methods of take for the sport hunting of big game) would not apply. Protection of private property is not sport hunting. A sporting hunting license and/or tag would, likewise, not be required because this is not a sport hunting effort.

One caveat, FGC section 3004.5 (use of non-lead ammunition within the condor zone) does apply even on depredating animals.

[bigboarstopper]

heres where my discrepancy is. The wardens I have spoke to say contrary to what this document says? Its clearly says 24 hour window of persuit.

http://i588.photobucket.com/albums/ss324/shaycambal/depredation_Page_2.jpg

Another point to make here is number 7. They explain how just discoverey of damage is justification. It also solidifys my point on the 24 hour window of persuit once the encounter or discoverey of damage.

http://i588.photobucket.com/albums/ss324/shaycambal/depredation_Page_4.jpg


This portion of the packet of documents I recieved back in 98 directly from dfg in a meeting when tyhe law came into action. Myself and a few others were invited to inform us on this law and how it was supposed to work. This is an official matrix defining this law to the wardens and how they were supposed utilize it. I have been using it for years successfully for property owners as their agents as described in the matrix. I speak to wardens now and they refuse to awknowlege this law.

I was cited a while back while using this law. I went to court and my case was dismissed. I spoke to the warden's captain and discussed the whole issue with him and how the judge dismissed it. I basically told him that his citing warden was incorrect shouldnt have forewarded the citations and report to the DA because the law was clear. He basically responed to me that the warden made no mention in his report that we were killing hogs under that law and that the charges seemed worthy to prosicute from his report. Our conversation ended well with a understanding that I wouldnt be recieving another citation while properly using that senate bill.

And this is my whole problem. This captain is gone now. Every warden I come across I ask them about this law and they all give me the same wrong answer. I show them the Matrix and they have never seen it or question its validity. I tell them how ive been using it and how the courts have sided with me. They have all told me that I would recieve a citation if they would come across me in the same situation. (I have always been polite and not argumentative) But cmon. Why dont the new wardens understand this law? Why have none of them read this matrix? Why is it only clear in the matrix and not the dfg regulations? But my real question is why would I be cited for this again sence its legal.

[bigboarstopper]

I have also reported the hogs killed under sb329 over the years. When I recieved my citation I called the dfg office to get a report of all the hogs Ive previously reported taking so that I could show it to the judge as evidence as to my using the law in the past and the dfg had no record of anything I have reported. That second page clearly shows that the dfg needs to keep records on all hogs killed under senate bill 329.

[#1Predator]

Bigboarstopper, keep in mind that what you have posted are guidelines, not the actual text of the law. I've read 4181/4181.1 backwards and forwards and I've seen the document (guidelines) you posted. No where in the actual law does it say that a 24 hour pursuit period is allowed.

1) The page you posted is from the DFG's internal Standard Operating Procedures Manual. The "V-98-01" in the top left corner indicates this page can be found in section "V" (the manual is organized alphabetically), "98" is the year the page was written, "01" refers to the version (in this case, this is the first version). This manual is updated on a monthly basis. It has been at least 132 months since this page was printed, that is, 132 months to amend, delete or correct this particular page. Since this is an internal manual, the public does not have to be notified each time it is changed.

2) This manual is given to wardens to answer their questions regarding operational issues and is used as a guideline in most cases. Even though these guidelines were printed and sent out by Sacramento, these guidelines are not law. Most judges will refer to the Fish and Game Code for their ruling. Incidentally, most guidelines in the manual tend to be on the "lenient" side of the law.

3) Game wardens cannot say it's okay to pursue pigs within 24 hours (regardless of what is stated on the posted guideline page) any more than they can say it's okay to fish without a license because that is not the law. Game wardens will not tell someone to do something if it is against the law regardless of what Sacramento puts out. They can't.

Several years ago Sacramento put out a similar set of guidelines for trappers. There were several "errors" (actual law versus policy) in that document as well. Game wardens put out the word not to follow these errors and were bombarded with phone calls asking for clarification of the law. Unfortunately, many trappers were ticketed for following the guidelines. Some won their cases, some didn't, some won one time only to be convicted another time and some lost their trapping privileges for life as a result of their court conviction.

In the end, it is best to follow the actual law. It sounds like the wardens and captain in your area tended to follow the guidelines you posted. This was at their discretion and it was within their authority to do so per the SOP manual but this is no guarantee that the next wardens/captain will follow their decision, nor do they have to follow it. It boils down to the law as passed by the California legislature or a guideline policy written by some citidiot bureaucrat in Sacramento. Your discretion, your choice.

[bigboarstopper]

Predator, Thankyou for your responces. I appreciate them. But to be honest your last reply just made me more frustrated. There is little to no consistancy at the dfg. They say one thing and then another. Follow this document but not the other. This law says this but the paper that describes it in detail is wrong. I know there havent been any changes to the matrix since at least 6 months ago. That meeting I went years ago was to talk the whole issue out so that everyone there would have a complete understanding of it. My understanding of it then was at the education of dfg itself.

You said that the documents were guidelines. I understand that. It just seems that those guidelines said the exact thing in the dfg rule book and clairify everything else. The 24 hour window of persuit to the how it applies. Ect, ect.

Wardens dont have to tell me that its ok to persue them 24 hours once an encounter has taken place. They can tell me the sky is green for all I care. They just cant pick and choose how the laws are interpreted. The matrix should do it for them. That matrix is exactly what you said it is. A guideline for the wardens. That guideline says that a person who encounters hogs causing damage can persue them within 24 hours of the encounter. Heck, It says that I only need to discover damage to persue them for 24 hours. If a warden dosent think Im right he should use that document to clarify his own questions on wether he should give a citation or not.

If I am using that same guideline as a tool to stay within the laws intent how am I not following the law at all? After all isnt that the whole point of the matrix itself? The argument against it is practly a mute point as the judge (the highest authority on law and interpreting it) said that he looked at the law, the matrix, the wardens report and decided there that "no violations of dfg law occured".

I agree with you the text of the law in the dfg book dosent say much on 4181.1. Not much at all. I think this is the root of the problem.

[larrysogla]

A different judge can "see" a different angle in making his judgement and bring out a conviction instead of a dismissal. Guidelines are nice.............but...............
'Nuff said
larrysogla

[#1Predator]

Bigboarstopper,

I agree. It's a frustrating situation. All the same, I wouldn't risk it. Three hunting violations within a five year period and all of my hunting privileges are revoked for one year by the Fish and Game Commission. A judge could revoke them for life :skeered:. Once my hunting license is revoked in California, under the Interstate Wildlife Violator Compact, I would no long be able to hunt in 31 western, midwestern and southern states (three more states have passed legislation to join, six more are in the process). I hunt predators in a lot of these states as well as deer and antelope. A year without hunting? Maybe even for life? IMHO, I wouldn't take the chance.

[bigboarstopper]

Wildlifebranch... ? Do you know this document? Can you comment on the matrix? If I am wrong please tell me how? It all seems very clear to me. Larysogla, im not looking for angles. If that document is a guideline. It should be very well guiding me in the right direction.

[WildlifeBranch]

I'm reluctant to comment on the document as it is more appropriate for our Law Enforcement Division - LED -(game wardens).

I recall that the "matrix" guidelines came up a couple of years ago as we started dealing with the Ag community and addressing the E. coli threat;

and I believe LED may have updated it (as Predator indicated).

Again, Guidelines and Policy do not carry the same weight or importance as Statute/Law/Code, or as much weight as Regulation. they are merely guidelines

Eric

[dglover]

You always have the option of getting an Attorney to give you an opinion for a fee.

Otherwise the best bet is to go by what the law says and leave the departmental guidelines alone.

If it is their guideline then it is at their discretion to change it.

If you follow the law that is not at their discretion to change. They can only enforce laws already enacted.

Officer discretion based on guidelines is not worth putting yourself at risk for. They don't have to give you a ticket but that does not make what you are doing any more legal. I am not giving an opinion on the legality of what you are doing just making a point.

Departments use discretion all the time when targeting certain crime while not giving much attention to others. That does not make the laws they are spending less time enforcing any more lawful.

On the flip side they may also misinterpret laws as was the case with the OLL Ar 15's. It has taken time but people have set legal precedent by willingly being prosecuted and having their interpretation of the laws upheld. This has paved the way for people not willing to take the risk to own an OLL and feel comfortable with those interpretations. If you are willing to be the test case for your interpretation then it is a risk that you knowingly take.

In the case of the AR15's the departmental guidelines where not in compliance with the law. The law always prevails. Don't get caught up with guidelines as they are always changing to comply with the law. It does not work in reverse.

Just my two cents.

[Fugaloo]

Brother, I wish I had hog problems like you. Just out of curiosity, why not hunt em under a pig tag? Is it the cost of the tag, or getting at them at night? I think most guys here would love a situation like yours. I don't know you or the details of your depredation, and maybe I'm out of turn here, but it seems if you have hog problems, you also have choice hunting ground. Like #1predator said, you have a lot on the line to be pushing for a questionable depredation. Why not fill out a tag and enjoy the ride?

[bigboarstopper]

I do both, use tags and depredate. I dont depredate often. I represent a few different properties as security. This job presents these situations. As for the senate bill. It is vague. The fasion in which i use it does not say that what im doing is illegal in any way. The matrix confirms it.