Mike Seymour
Office of the Attorney GeneralAugust 30, 2018
2018 WL 4470430 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2018-00211
*1 August 30, 2018
Re: Wildlife, Fisheries, & Parks (Alligator Hunting Rules and Regulations)
*1 Mike Seymour
*1 Senator
*1 Mississippi State Senate
*1 15417 Indian Fork Road
*1 Vancleave, Mississippi 39565
Dear Senator Seymour:
*1 Attorney General Jim Hood has received your request for an opinion and assigned it to me for research and reply.
Background and Issues Presented
*1 In your letter, you state:
*1 Based on a recent ruling by the Mississippi Supreme Court (Ward v. Colom) I am seeking an Attorney General opinion on a regulation issued by the Mississippi Department of Wildlife, Fisheries and Parks.
*1 According to the rule book issued by MDWFP on page 4, subsection J, “No other firearm or ammunition may be in possession of the permittee or hunting party.” Training classes specifically target concealed weapon permit holders to ensure they are aware that no handgun for self-defense is authorized.
*1 The Supreme Court cited the Mississippi Constitution as the authoritative document over carrying a concealed weapon. In Article III, Section 12, the Constitution says, “The Legislature may regulate or forbid concealed weapons.” The Supreme Court interpreted that in Ward v. Colom as the only entity having any authority over regulating or forbidding the carrying of concealed weapons.
*1 An argument could be made that those are the rules and if you don't want to abide by those rules then don't go on the gator hunt. However, in Ward v. Colom, the High Court ruled that even Judges were not allowed to make rules (in the form of an order) to prohibit enhanced permit holders from entering courthouses while armed. To do so would be a violation of the Constitutional rights of a citizen.
*1 So, if a Judge cannot tell a citizen to stay home with his handgun, I question whether or not a Conservation Officer can. Please provide me a written opinion on this issue.
Discussion and Legal Analysis
*1 As a threshold matter, official opinions of this office can neither validate nor invalidate actions already taken. MS AG Op., Smith (Jan. 16, 1992). The regulatory provision which you question has already been promulgated and included in the Mississippi Administrative Code. Additionally, we do not by official opinion interpret regulations of other agencies. MS AG Op., Shurden (April 10, 2015); See also, MS AG Op., Ivy (June 1, 2007)(“We do not, by way of official opinions, attempt to interpret training booklets, other such publications or agency regulations.”); MS AG Op., McRaney (July 19, 1995)(“This office does not interpret regulations of other state agencies in official opinions.”); MS AG Op., Provine (July 28, 2006)(“We do not officially interpret rules and regulations of a state board or agency by way of an official opinion”). Likewise, in the absence of a regulation that clearly violates state law or constitutional provisions, we do not question the reasonableness or necessity of such regulations. See MS AG Op., Nelms (June 27, 2014)(“We do not opine on the ultimate reasonableness of any proposed regulation.”); MS AG Op., Polles (Sept. 19, 2013)(“Issues involving the wisdom or appropriateness of the Commission's regulations require a factual or policy determination upon which our office does not opine.”)
*2 This office cannot adjudicate the legality or propriety of an existing agency regulation. However, the subject regulations appear to be a valid exercise of regulatory authority delegated by the Legislature to the Mississippi Department of Wildlife, Fisheries and Parks (the “Department”).1 You reference a provision on “page 4, subsection J” of a Department rule book. We do not have that rule book, but the subject regulation appears to be found at Miss. Admin. Code 40-2:5.D.3.j. These regulations relate only to hunting on public waters and are found in the Section entitled “Capture and Dispatch Methods” which states:
*2 3. Capture and Dispatch Methods:
*2 a. Use of bait is prohibited.
*2 b. Alligators must be captured alive prior to shooting or otherwise dispatching the animal. It is unlawful to kill an unrestrained alligator.
*2 c. Restrained is defined as an alligator that has a noose or snare secured around the head, neck, or leg in a manner that the alligator is controlled.
*2 d. Capture methods are restricted to hand-held snares, snatch hooks (handheld or rod/reel), harpoons (with attached line/buoy), and bowfishing equipment (longbows, recurve bows, compound bows, or crossbows w/ line attached from bow to arrow or line/buoy, bowfishing arrow tips only, no broadheads, and no tips containing cartridges, or other explosive devises).
*2 e. The use of fishing lures or other devices (with hooks attached) for the purpose of catching alligators in the mouth is prohibited.
*2 f. All alligators must be dispatched or released immediately after capture.
*2 g. Any alligator that is captured with a harpoon or bowfishing equipment must be reduced to the bag and may not be released.
*2 h. Firearms used for dispatching an alligator are restricted to long-barreled, shoulder-fired shotguns with only shot size #6, #7, #7.5, #8, or #9 ammunition and bangsticks chambered in .38 caliber or larger. No pistols or rifles are allowed.
*2 i. All shotguns and bangsticks must be cased and unloaded at all times until a restraining line has been attached to the alligator.
*2 j. No other firearm or ammunition may be in possession of the permittee or hunting party.
*2 k. No firearm or bangstick may be discharged within 100 yards of any residence, building, boat ramp, or occupied campsite.
*2 l. Any person or vessel that possesses equipment used to capture or harvest an alligator must be in the immediate vicinity of a person who possesses a valid Alligator Possession Permit at any time while located in the hunting area. To do otherwise is illegal and considered hunting without a permit.
*2 m. The possession of alcohol or alcoholic beverages is prohibited for any person in the act of alligator hunting, nor may it be contained in any vessel in the act of alligator hunting.
*2 n. Nothing within this Rule shall supersede any other municipal laws, including discharge of firearms within a municipality.
*3 o. No person may hunt alligators within any public lake or pond that the governing entity does not specifically allow alligator hunting (i.e. state parks, state lakes, state wildlife management areas, federal refuges, municipal lakes and parks, etc.). However, public waterways, as designated by the MDEQ, that exist within MDWFP operated WMAs are not closed to alligator hunting, unless specifically noted.
*3 The Department's authority to regulate wildlife matters, including the taking of alligators, is expressly given by statute. The Department is given broad regulatory authority as follows:
*3 The commission may promulgate rules and regulations, inaugurate studies and surveys, and establish any services it deems necessary to carry out wildlife laws. A violation of any rules or regulations promulgated by the commission shall constitute a misdemeanor and shall be punished as provided in Section 49-7-101.
*3 Miss. Code. Ann. Section 49-1-29 (as amended). Specifically with regard to the taking of alligators, Mississippi law provides “[t]he commission may control, regulate and manage the taking of all alligators.” Miss. Code Ann. Section 49-7-47 (as amended). If a court were attempting to pass on the propriety of the subject regulations, it would review evidentiary/factual materials and findings on the necessity and reasonableness of such regulations. This office does not have access to such information, and we can only speculate as to these factual matters. With regard to Section 3, subparagraphs a. through o., it is apparent that the regulations are based on issues of public safety and humane “dispatching” of the animals. For example, the regulations prescribe the type of weapons and types of ammunition that can be used and require either immediate “dispatch” or release of the animals. Firearms cannot be loaded or uncased until the alligator is restrained. Likewise, shotguns used in the taking must be shoulder-fired. The regulations, likewise, prevent the possession of alcohol during hunting. Furthermore, the regulations are applicable only to public waters where the likelihood of an encounter with other hunters or people is greater.
*3 Thus, the regulations appear to have a reasonable relation to public safety2 and the humane taking of animals. As mentioned earlier, the regulations apply to alligator hunting on public property which is an activity that often involves numerous people in the same boat with firearms and always involves an attempt to catch and dispatch an alligator at least four (4) feet in length. Additionally, the activity involves the potential discharge of weapons during darkness hours on public waters where there may be others engaged in alligator hunting or other water related activities. This office cannot conclude that these regulations are either unreasonable or unnecessary.
*3 The Supreme Court has held that “[a]n agency may not adopt rules and regulations which are contrary to statutory provisions or which exceed or conflict with the authority granted by statute.” Division of Medicaid v. Mississippi Indep. Pharmacies Ass'n, 20 So. 3d 1236, 1238 (Miss. 2009)(citing Miss. Pub. Serv. Comm'n v. Miss. Power & Light Co., 593 So.2d 997, 1000, 1004 (Miss. 1991). As noted above, we do not believe that the subject regulations are in excess of the rule-making authority delegated to the Department by the Legislature. Likewise, this office is of the opinion that the subject regulation is not contrary to the constitution or state statute.
*4 Your letter states it is based on the Supreme Court's holding in Ward v. Colom, —So.3d—, 2018 WL 2731253, (Miss. June 7, 2018). As the Court noted in the Colom decision, [t]he rights of enhanced-carry holders ... [were] at the center of the controversy before the Court.” Id. at fn. 9. For this reason, our discussion here will be in regard to enhanced carry holders. In Colom, the Chancery Court Judges issued an order that directly contravened the wording of a statute.3 The holding in Colom that this order was improper was two-fold. First, the Court concluded that the order violated the separation of powers doctrine found at Sections 1 and 2 of the Mississippi Constitution. Colom, 2018 WL 2731253, at p. 2. The conclusion was based on Section 12 of the Mississippi Constitution which provides that “[t]he right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the Legislature may regulate or forbid carrying concealed weapons.” Id. The Court stated that the “Legislature is the branch of government that the citizens of Mississippi chose to regulate or forbid concealed weapons” and held that the Chancery Judges' order usurped the Legislature's regulatory power exercised via Section 97-37-7(2). The constitutional infirmity at issue in Colom was not a constitutional right4 to carry a concealed weapon but was, instead, a violation of the separation of powers doctrine when the judicial branch attempted to prohibit concealed carry in a courthouse contrary to the Legislature's exercise of its constitutionally delegated authority.
*4 This constitutional issue is not raised by the subject regulation. As noted, the Department is given express authority by the Legislature to regulate as “it deems necessary to carry out wildlife laws” and to “regulate and manage the taking of all alligators.” The delegation of legislative authority to an administrative agency does not raise the constitutional issue present in Colom where the judicial order contradicted the express language of a statute and the explicit grant of authority to another branch of government. In a case germane to wildlife regulations and the authority delegated to the Department, the Mississippi Court has held:
*4 In Russell v. State, 220 So.2d 334 (Miss.1969), the Court recognized that the power granted to the Mississippi State Game and Fish Commission (now Mississippi Commission on Wildlife Conservation), pursuant to Section 5844, Mississippi Code 1942 Annotated [now Mississippi Code Annotated Section 49-1-29 (Supp.1972)], to adopt rules and regulations in the area of game and fish conservation, a violation of which constitutes a misdemeanor, was not an unconstitutional delegation of law-making power. The Court said: “Legislation of this type has been held to violate neither the United States nor the Mississippi Constitution.” [220 So.2d at 339], and cited Lacoste v. Department of Conservation, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437 (1924) and Mississippi Milk Commission v. Vance, 240 Miss. 814, 129 So.2d 642 (1961).
*5 Strong v. Bostick, 420 So.2d 1356, 1362 (Miss. 1982)(emphasis added).
*5 Various other statutes confirm what apparently is the Legislature's view that delegation of regulatory authority regarding carrying a firearm is proper. Section 45-9-51 of the Mississippi Code provides generally that no county or municipality “may adopt any ordinance that restricts the possession ... of firearms. However, Section 45-9-53 makes express exemptions to this rule and allows counties and municipalities “[t]o regulate the carrying of a firearm at: (i) a public park or at a public meeting of a county, municipality or other governmental body; (ii) a political rally, parade or official political meeting; or (iii) a nonfirearm-related school, college or professional athletic event[.]” Miss. Code Ann. Section 45-9-53 (as amended). Section 45-9-101(13) authorizes regulation of firearm possession by providing that “the carrying of a stun gun, concealed pistol or revolver may be disallowed in any place in the discretion of the person or entity exercising control over the physical location of such place by the placing of a written notice ...” This office has repeatedly opined that under this provision a state agency “can disallow the carry of concealed weapons ... by following the notice provisions of Section 45-9-101(13).” MS AG Op., Hyde-Smith (Oct. 23, 2013).
*5 In the 2014 Regular Session, the Legislature amended Section 45-9-53 to provide that “[n]o county or a municipality may use the written notice provisions of Section 45-9-101(13) to prohibit firearms on property under their control except in the locations listed in subsection (1)(f) of this section.” 2014 Miss. Laws Ch. 443 (H.B. 314). This same section was again amended in 2015. In both of these amendments, the Legislature left in place some authority of local governments to use the provisions of Section 45-9-101(13) to regulate firearm possession. Of more importance to the instant matter is that, in spite of the Hyde-Smith Opinion in 2013, the Legislature did not amend the statute to preclude state agencies from using these provisions to prohibit concealed carry under appropriate circumstances by state agencies. This office presumes the constitutionality of enactments by the Legislature. Here, the Legislature has repeatedly delegated the authority to regulate aspects of firearm possession to state agencies. Thus, we conclude there is no constitutional infirmity in the delegation of authority by the Legislature to the Department to promulgate the subject regulation. Moreover, we do not agree with the proposition in your request letter that the regulation deprives citizens of a constitutional right to carry a firearm.5
*5 Further, we do not believe that the regulation violates any statutory right to carry a concealed. See, fn. 4, supra. concealed weapon. In the Colom case, as noted above, there was a statutory right of an enhanced licensed holder to “carry weapons in courthouses except in courtrooms during a judicial proceeding.” The Supreme Court found that the order in Colom expressly contradicted a statute. By virtue of the wording of both Section 97-37-7(2) and Section 45-9-101(13), an enhanced license holder is entitled to carry into a courthouse. In Colom, the court order contradicted these express provisions. However, no such right exists for public waters or for hunting and dispatching an alligator. Neither Section 97-37-7(2) nor Section 45-9-101(13) purports to grant an express right to an enhanced license holder to carry under these circumstances. See, MS AG Op., Gipson (April 21, 2017)(“Condensed to its essence, our opinion with regard to enhanced license holders is that a state agency can prohibit such holders from carrying onto agency-controlled property so long as it is not a location listed in Section 45-9-101(13)”). Accordingly, we conclude that the subject regulation does not violate any statutory rights granted to an enhanced license holder.
*6 Finally, we note that the act of alligator hunting on public property is a permitted act which the permit holder chooses to participate in voluntarily. The person is not required by the state to give up any right of carrying a pistol unless and to the extent the person chooses to engage in a permissive and regulated act. A person could carry his or her pistol on the same public waterways if he or she chose not to hunt alligators. Although discussing the issue in the context of Second Amendment rights, the Eleventh Circuit has recently and aptly pointed out this distinction as follows:
*6 The law in Heller “totally ban[ned] handgun possession in the home” throughout the District of Columbia, 554 U.S. at 628, 128 S.Ct. 2783, while the policy in Peruta generally banned the carriage of firearms everywhere outside the home throughout San Diego County, see 742 F.3d at 1170. The Corps' firearms regulation, in sharp contrast, applies only to Corps property: it is narrowly cabined to a specific area, and in this case that area is specifically designated for recreation. The plaintiffs can freely exercise their right to bear arms for self-defense elsewhere, whether in the home or on the streets, without running afoul of this regulation. Cf. Moore v. Madigan, 702 F.3d 933, 940 (7th Cir.2012) (“A blanket prohibition on carrying gun[s] in public prevents a person from defending himself anywhere except inside his home .... In contrast, when a state bans guns merely in particular places ... a person can preserve an undiminished right of self-defense by not entering those places ....”). And as the district court noted, the plaintiffs' presence at Allatoona was voluntary—they did not “need to use [the Allatoona campgrounds] on a regular basis.” GeorgiaCarry.Org II, 38 F.Supp.3d at 1377. Other areas for camping and recreation are available to the plaintiffs where their Second Amendment rights would be undisturbed by 36 C.F.R. Section 327.13, including national parks and Georgia state parks. The limited scope of the regulation provides a powerful distinction from the cases on which the plaintiffs rely; so narrow a restriction on so limited a geographic expanse cannot fairly be said to destroy the plaintiffs' Second Amendment rights altogether .... This regulation does not gut the plaintiffs' general right to keep and bear arms in self-defense.
*6 GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Engineers, 788 F.3d 1318, 1325-26 (11th Cir. 2015)(footnotes omitted). Indeed, the GeorgiaCarry.Org, Inc. dealt with public lakes and recreation areas. Although dealing with a ““sensitive place analysis,” under federal law, the lower court in GeorgiaCarry.Org, Inc. held that such public lakes and recreational areas held by the Corps of Engineers were sensitive places on which firearm regulations were presumptively valid. The court concluded that the recreational areas fit within the same category as schools or government buildings.6
*7 If this office can be of further assistance, do not hesitate to contact us.
Footnotes
References to the “Department” for purposes of this letter include the Commission on W ildlife, Fisheries and Parks.
The public safety aspect of the public water regulations is further supported by the fact that a separate set of regulations exists for the taking of alligators on private waters. The “Capture and Dispatch Methods” regulation for private waters allows the use of different types of weapons, provides separate rules for day and night time hunting, and notably includes no prohibition on possession of other weapons while hunting alligators. See, Miss. Admin. Code 40-2:5.2.I.
Section 97-37-7(2) provides, in relevant part, that “[a] person licensed under Section 45-9-101 to carry a concealed pistol, who (a) has voluntarily completed an instructional course in the safe handling and use of firearms ... shall also be authorized to carry weapons in courthouses except in courtrooms during a judicial proceeding.” (Emphasis added). Notwithstanding this statutory language, the Chancery Judges entered an order prohibiting concealed weapons in all courtrooms, courthouses and, to some extent, the grounds surrounding courthouses within their chancery court district.
Section 12, instead of granting a personal right to concealed carry, grants the Legislature the unfettered right to ban or forbid it.
As the request letter notes, this matter involves a restriction on the privilege to take an alligator. This is not a general regulation aimed at depriving individuals of the right to bear arms. If a person chooses to obtain an alligator permit, they may still carry their shoulder-fired firearm with them during the hunt or they may simply choose not to hunt alligators. Also, Section 12 provides no individual right to carry
The discussion of federal law is for informational purposes only. This office is not authorized to opine on federal law via official opinions under Section 7-5-25.
2018 WL 4470430 (Miss.A.G.)
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