interesting post from r/californiahunting on the closures:
Hi, quick comment here on this.
I believe this order is unconstitutional, and hunters should evaluate their legal options for lawsuits (legal challenges in the courts to this order, or orders similar to it). The only way to reopen our forests (and avoid broad-brush closures) is to contest closures in the courts.
The order was an attempt to pre-emptively foreclose upon further objections to closures for the rest of the year.
The recent order came from the USDA Forest Service Pacific SouthwestRegion and the announcement can be found here:
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd949147.pdf
There is an active regulatory petition to the Fish and Game petition, which I initiated on August 22, 2021, before the Forest Service issued their statewide Forest closure. To sum up: On Aug. 22, I submitted via e-mail, a Regulatory Petition to the Fish and Game Commission (via FGC-1 form) Relating to Big Game Defined, titled "Petition against proposal(s) to close areas to hunting." If you are contacting the Commission, please ask them to support this Petition.
As further background, on August 25, 2021, I received an e-mail from the Forest Supervisor of the Los Padres National Forest, Kevin B. Elliott. In his e-mail, he stated, "Any time I consider an emergency Forest Order closing or restricting access to national forest system lands within the Los Padres I do so for the purposes of the protection of our natural resources and safety of our forest visitors, and our firefighters and I do so with the smallest area and time period necessary. Hunting is not precluded on the Los Padres except as subject to the rules and regulations established by the California Department of Fish & Wildlife Department and the California Fish and Game Commission."
In my reply to him on this matter, which the Fish and Game Commission analyst was copied on, I mentioned to him the following, sent on Aug. 26, 2021:
"Kevin,(...) It is the purview of the Commission to as mentioned, limit or expand upon seasons (see Fish and Game Code Section 203) and to change areas or territories for taking.
https://leginfo.legislature.ca.gov/...ision=1.&title=&part=&chapter=2.&article=1.To wit, in Fish and Game Code, Section 203, "Any regulation of the commission pursuant to this article relating to resident game birds, game mammals and fur-bearing mammals may apply to all or any areas, districts, or portions thereof, at the discretion of the commission, and may do any or all of the following as to any or all species or subspecies
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a) Establish, extend, shorten, or abolish open seasons and closed seasons.(b) Establish, change, or abolish bag limits and possession limits.(c) Establish and change areas or territorial limits for their taking.(d) Prescribe the manner and the means of taking.(e) Establish, change, or abolish restrictions based upon sex, maturity, or other physical distinctions."
(...) this does not change that the Commission cannot mandate what the USDA - Forest Service or the BLM for example will do with respect to the lands that the (Forest Service, BLM, etc.) manage and control.
However, I was able to find a section that you may have relied upon in the past when closing a forested area (in past Forest closures which I recall due to past language used in a Forest order in the Los Padres NF - Monterey District area, where not long ago there was a significant part of the Forest closed using language matching the following), which can be found here:
https://codes.findlaw.com/ca/public-resources-code/prc-sect-4297.html
**This is actually California Public Resources code.**
This reads, 'Upon the showing of the director that the unrestricted use of any grass-covered land, grain-covered land, brush-covered land, or forest-covered land is, in the judgment of the director, a menace to life or property due to conditions tending to cause or allow the rapid spread of fires which may occur on such lands or because of the inaccessible character of such lands, the Governor through the director, may, by a proclamation, which declares such condition and designates the area to which, and the period during which the proclamation shall apply, require that such area be closed to hunting and fishing and to entry by any person except a person that is within one of the following classes:
(a) Owners and lessees of land in the area.
(b) Bona fide residents in the area.
(c) Persons engaged in some bona fide business, trade, occupation, or calling in the area and persons employed by them in connection with such business, trade, occupation, or calling.
(d) Authorized agents or employees of a public utility entering such area for the purpose of operating or maintaining public utility works or equipment within the area.
(e) Members of any organized firefighting force.
(f) Any federal, state or local officer in the performance of his duties.
(g) Persons traveling on public roads or highways through the area."
Kevin, as you no doubt recall, a general forest closure at one time in the recent past was applied that in fact resulted in the closure of the entirety of the Los Padres NF (Monterey District, and I believe the rest of the Los Padres as well). The above language essentially from (a) - (g) of Public Resources Code section 4297 was incorporated in part into the text of the Forest order, and people were unable to either hike (non-consumptive use) or hunt (consumptive use) in the area. **However, the order was premised upon a showing from a director that "unrestricted use of any grass-covered land, grain-covered land, brush-covered land, or forest-covered land is, in the judgment of the director, a menace to life or property due to conditions tending to cause or allow the rapid spread of fires which may occur on such lands or because of the inaccessible character of such lands."**I dispute that the unrestricted use of any grass-covered land, grain covered land, brush-covered land, or forest-covered land, could ever be a "menace to life or property," (though I do understand the inherent danger of fires, and I have been living in Monterey for some years now and have helped with a few Big Sur fire recovery efforts) and furthermore I am not convinced that it is ever logical that a fire closure is ever logical to require that forest areas "be closed to hunting and fishing and to entry by any person except a person that is within one of the following classes" (a) - (g) within Public Resources Code Section 4297.
Firstly, hunting is not an "unrestricted" use, as it is a use of land subject to license(s), fees, tags, etc., and therefore by definition, it is not unrestricted - subject to all of those things, plus the regulations of the Fish and Game Code. Hence, hunters in general should be exempt from closure orders under Section 4297. But even more to the point, a grass-covered land, brush-covered land, or forest covered land, cannot be a "menace to life or property" if it is not on fire even if there is a director's determination of the director that an entire forest should be closed. (It is the land which is on fire, or the "incident area," and immediate surrounding area which should be closed to the public - not the entire forest.) This is why I have asserted in my petition to Fish and Game Commission (and in my request to you for parallel regulatory action from your agency) that there must be no regional or forest-wide closures (as per the proposal in the regulatory petition that I submitted to the Commission and earlier provided you a copy of). Hunters will request data-driven approaches that limit and confine areas of closure to those areas which actually are within burn areas - areas actually on fire or that have recently been burned through. It is not reasonable to shut down an entire forest (or National Forests) because of a fire within or near a Forest boundary.(...)
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The law already makes clear that outright broad-brush closures of Forests (and banning of hunters from them, since hunting is not an "unrestricted" use under the Public Resources Code) is illegal - hence, the Forest Order was improperly and illegally constructed and can be challenged in court, but I also wish to pursue the regulatory petition to make it more emphatic in the Fish and Game Code that such broad-brush efforts to exclude hunters from Forest lands and to do wholesale closures of Forests must be prohibited, which is in fact the language within my petition submitted August 22, 2021 to the Fish and Game Commission.