EACH WORD HAS ITS OWN SPECIAL MEANING

IN MY OPINION the California Department of Fish and Game seems somewhat confused about the meaning of the terms “knowledge”, “skill”, “competence” and “proficiency”. Since these words are contained in Section 4005(b) of the Fish and Game Code, and it is the major regulation governing commercial trapping licensure of Wildlife Control Operators, I thought it would be worth looking at some common definitions of these terms before we move on to review review the Department’s apparent mis-interpretation of the words.

Knowledge is defined as :

 (1):  the fact or condition of knowing something with familiarity gained through experience or association

 (2):  an acquaintance with or understanding of a science, art, or technique

 (3):  the fact or condition of being aware of something

Skill,  on the other hand, is defined as:

(1): a proficiency, ability, facility, or dexterity that is acquired or developed through training or  .                               experience                                                    

(2): an art, trade, or technique, particularly one requiring use of the hands or body.

(3): a developed talent or ability: e.g. writing skills or trapping skills.

(4): an ability to do something well, usually gained through training or experience

(1):   the ability to apply knowledge to situations likely to be encountered and to deal with them without.
        extensive recourse to technical research                

(2):  skillfulness in the command of fundamentals deriving from practice and familiarity; "practice greatly.   
        improves proficiency     

(3):  having or showing knowledge and skill and aptitude 

Competence is defined as:

(1): the ability to perform a specific task, action or function successfully.  Incompetence is its opposite.

(2): a standardized requirement for an individual to properly perform    

(3): having legal or practical ability to perform. (Competency means the same thing, but is less often used.)

(4): a standardized requirement for an individual to properly perform a specific job. It encompasses a
       combination of knowledge, skills and behavior utilized to improve performance.

(5): The ability to perform work activities to the standards required in employment

Now that we understand the meaning of these four terms and the differences between them, let’s examine them terms in the context of the trapping license regulation in which they are all used.
Section 4005(b) of the Fish and Game Code of Regulations serves as the legal basis for State’s licensing of the trapping of furbearers and nongame mammals as commonly performed by Wildlife Control Operators and others. Here is the actual regulation:

4005(b) “The department shall develop standards that are necessary to ensure the competence   and proficiency of applicants for a trapping license. No person shall be issued a license until he or she has passed a test of his or her knowledge and skill in this field.”

IN MY OPINION, the Department of Fish and Game has been issuing trapping licenses solely on the basis of an applicant’s score on a paper and pencil, multiple choice, test designed to assess knowledge of the DFG trapping laws, behavioral characteristics of nongame and furbearing animals and their biology. However by no stretch of the imagination can one reasonably conclude that applicants’ skill, competence and/or proficiency in trapping have been assessed by the written test. Therefore, since the Department has ignored and evaded the requirements of Section 4005(b), all of the trapping licenses awarded on this basis should be invalidated and not re-issued until DFG modifies its trapping license program to conform to both the spirit and letter of the law.

On February 23, 2009, I wrote to the Fish and Game Commission’s Jon Ficher, Deputy Director for Regulations and Policy to make him aware of our concerns. However, since my letter did not contain recommendations for any new regulations or changes in existing regulations, Mr. Ficher responded saying my letter was “being forwarded to the Department of Fish and Game for review and action as appropriate”.

On March 9, 2009, Dr. Eric Loft, Ph.D., Chief of the Wildlife Branch replied to our letter. According to Dr. Loft, “The Department of Fish and Game believes it is in compliance with Fish and Game Code Section 4005(b). The department recently updated and significantly expanded the information a trapping license applicant must know to pass a rigorous exam based upon knowledge of the California Trapping License Examination Reference Guide.”

Well, Dr. Loft may be a man of “letters”, but he doesn’t seem to be a student of “words”.  At least not those words contained in Section 4005(b) of the Code. The legislature had a wide array of terms at its disposal such as will, should, may, might etc., but it chose the word “shall” and used it twice in this section to stress the obligatory nature of a command. “The Department shall develop standards” and “ No person shall be issued a license” The Department apparently interprets these sentences as merely suggestive rather than obligatory since  it has not developed any standards against which trapping skills, competence or proficiency can be assessed and it has chosen to dispense trapping licenses to applicants whose trapping skills remain questionable.

So why does the DFG issue trapping licenses without testing for skill, competence and proficiency?

a.  It has not read the regulation

b.  It thought nobody would notice

c.  It thought nobody would care

d.  It felt unable to comply with the requirement

e.  Its just too much trouble

I was going to add ‘It didn’t understand the language of the law”, but that seemed ridiculous because I could not imagine a less ambiguous law. It seems perfectly clear and not open to different interpretations. Does anybody not understand the meaning of the imperative word “shall”? It does not mean “may”. It does not mean “might”. It does not mean “can”. It does not mean “should”. The word “must” comes pretty close though. So how does the Department reach the conclusion that compliance with the regulation is optional?

“No person shall be issued…”  What part of this phrase is vague, ambiguous, confusing or misleading? “Until he or she has passed”?  Same question. The Department seems to have the Clintonian response that it depends on what the meaning of “is” is.

Can anyone imaging going into a Department of Motor Vehicles office and getting a driver’s license based only on passing the paper and pencil test? No behind the wheel road test required. No vision test. Nothing else.  Incomprehensible! Yet, look at what’s going on in the DFG office down the road. Walk in, take a paper and pencil test of your trapping knowledge, and walk away with a license to offer your trapping services to the public. Is that what the enabling legislation intended? Absolutely not!

A few years ago, the legislature passed SB1645 authored by Senator Byron Sher and sponsored by some animal welfare groups and by the California NWCO Association. These proponents wanted to reduce the number of non-target catches, minimize animal suffering and accident deaths, and improve the quality of trapping services provided to California consumers .The bill’s author believed that determining the trapper’s competence prior to licensure was the most practical approach for achieving these objectives, but now, the DFG has undermined the legislative intent of SB 1645 by issuing licenses to people with questionable skills, competence and proficiency.  The California consumer has been hoodwinked again.  A person assuming that State-licensure equates to trapper competence could be wrong and the consequences of being wrong could be significant.

IN MY OPINION, the DFG should explain and justify its current policy and practice of issuing trapping licenses contrary to Regulatory Section 4005(b). The California NWCO Association will publish the Department’s explanation on this website when it has been received.