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ASSEMBLY BILL 1386 (CORTESE 1991)

CHAPTER 844, STATUTES OF 1991 AB 1386

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Fish and Game Code sections 1603.1 and 5650.1 were added with the passage of Assembly Bill 1386 of 1991.  (See Exhibit #1e)  Assembly member Dominic L. Cortese introduced the measure on March 7, 1991 at the request of the California District Attorneys Association.  (See Exhibits #1a and #13, document A-29)

 

Assembly Bill 1386 was assigned to the Assembly Committee on Water, Parks, and Wildlife for consideration of the policy issues raised by the bill.  (See Exhibit #3)  After approval by that Committee, the Assembly Committee on Ways and Means examined its fiscal ramifications.  (See Exhibit #4)  The Assembly amended the bill on May 13, 1991.  (See Exhibits #1b and #2)  Assembly Bill 1386 was approved by the Assembly and forwarded to the Senate on June 19, 1991.  (See Exhibit #2)

 

While in the Senate, the Committee on Judiciary heard the policy issues presented by the bill.  (See Exhibit #8)  Subsequent to approval by that Committee, Assembly Bill 1386 was assigned to the Senate Committee on Appropriations which examined its fiscal implications.  Two amendments were made to Assembly Bill 1386 by the Senate, on August 20 and August 30, 1991.  (See Exhibits #1c, #1d, and #2)  The Senate voted to pass the bill on September 4, 1991.  (See Exhibit #2)

 

The Assembly approved the Senate amendments and forwarded Assembly Bill 1386 to the Governor on September 25, 1991.  Governor Pete Wilson signed the bill on October 11, 1991, and it was recorded by the Secretary of State as Chapter 844 of the Statutes of 1991.  (See Exhibits #1e and #2)

 

A digest of Assembly Bill 1386 is provided in the Third Reading analysis of the bill as last amended prepared by the Office of Senate Floor Analyses as follows:

 

This bill provides that the obstruction, diversion, or pollution of a waterway subject the offender to a civil penalty of up to $25,000 for each violation.

 

This bill provides that a restraining order or injunction against such actions be issuable without initial proof of irreparable damage to fish and wildlife.

(See Exhibit #10, page 1)

 

The analysis of the Senate Committee on Judiciary provided the following explanation of the need for this measure:

 

The current law offers two courses of action that may be undertaken against these offenses.  A civil suit may be filed for actual damages caused by the activity, and/or a criminal charge may be filed.  Proponents contend that neither provides a sufficiently punitive retribution.  A major refinery may be assessed damages to clean up an oil spill into the bay; in that action it may be ordered to cease polluting if it is established that damage is being caused.  But regardless of the extent to which the aquatic habitat may be destroyed, it is guilty only of a misdemeanor carrying a $2000 fine.

 

Because of the construction of current law, prosecutors find themselves hampered in fashioning an appropriate response.  The criminal penalties are minimal; the civil action does not permit civil penalties; injunctive relief is not available under the criminal action.  This bill would permit a civil penalty of up to $25,000 in addition to any criminal charges imposed, and would permit immediate relief from any lengthy process of establishing irreparable damage.  Thus would prosecutors enjoy greater flexibility in responding to the magnitude of the offense.

(See Exhibit #8, pages 2 and 3)