DWR Rules and Right To Carry

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DWR Rules and Right To Carry

Postby apollosmith » Mon 10 Aug 2009 3:10 pm

I know this has been discussed before, but I still have questions.

Utah's Uniform Laws (53-5a-102) state, "Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the possession or use of firearms on either public or private property."

I've found nowhere in state law that the Department of Wildlife Resources has been granted authorization to regulate firearms. Despite this, there are several DWR rules (they are not laws) that clearly violate the state uniform laws. In the 2009 Big Game Hunting Guidebook, it specifically prohibits firearms in a few places (note that there are exceptions for CFP holders):

1. R657-5-7 (5d). On "Temporary Game Preserves". These are areas where a bull elk, buck pronghorn, moose, bison, bighorn sheep or Rocky Mountain goat hunt is taking place. So if you do not have a permit and go on a hike while open carrying pretty much any the mountains most any time in the fall, you are violating this rule.

2. R657-5-11 and R657-5-12. Any place on your person, in your vehicle, or in your camp during an archery or muzzleloader hunt if you have an archery or muzzleloader permit. So if you have an archery permit and do not have a CFP, you cannot keep a firearm in your tent or even have one in your vehicle ANYWHERE during the dates of your hunt. These laws seem to directly contradict the domicile and vehicle allowances (76-10-504). They even overstep the federal transportation allowances. This was brought up by someone coming to archery hunt Utah from California. He does not have a permit. According to the DWR, he has to leave his firearm at home, right?

I'd also like to point out 76-10-504 which states that you can keep and conceal a pistol with a barrel longer than 4" for personal protection while hunting REGARDLESS of whether you have a concealed firearms permit or not. Again, this law allows something that the DWR rules prohibit.

So a few questions:

1. Has the legislature granted the Utah Department of Wildlife Resources authority to "inhibit or restrict the possession or use of firearms"?

2. If not, where does the DWR have authority to publish and enforce these rules which clearly do so?

3. Which rule takes precedence - the domicile and vehicle laws or the DWRs rules that say you can't carry while archery or muzzleloader hunting unless you have a CFP?
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Re: DWR Rules and Right To Carry

Postby steelhawk » Mon 10 Aug 2009 8:04 pm

These DWR rules are one of the reasons I got my concealed carry permit. I always have a firearm with me when I am out hunting or in the mountains. It is stupid not to, especially in bear country.

It seems, as you say, the DWR is breaking state firearms laws.
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Re: DWR Rules and Right To Carry

Postby Car Knocker » Mon 10 Aug 2009 8:43 pm

23-14-18. Establishment of seasons, locations, limits, and regulations by Wildlife Board.
(1) To provide an adequate and flexible system of protection, propagation, introduction, increase, control, harvest, management, and conservation of protected wildlife in this state and to provide for the use and development of protected wildlife for public recreation and food supply while maintaining a sustainable population of protected wildlife, the Wildlife Board shall determine the circumstances, time, location, means, and the amounts, and numbers of protected wildlife which may be taken.
(2) The Wildlife Board shall, except as otherwise specified in this code:
(a) fix seasons and shorten, extend, or close seasons on any species of protected wildlife in any locality, or in the entire state, if the board finds that the action is necessary to effectuate proper wildlife management and control;
(b) close or open areas to fishing, trapping, or hunting;
(c) establish refuges and preserves;
(d) regulate and prescribe the means by which protected wildlife may be taken;
(e) regulate the transportation and storage of protected wildlife, or their parts, within the boundaries of the state and the shipment or transportation out of the state;
(f) establish or change bag limits and possession limits;
(g) prescribe safety measures and establish other regulations as may be considered necessary in the interest of wildlife conservation and the safety and welfare of hunters, trappers, fishermen, landowners, and the public;
(h) (i) prescribe when licenses, permits, tags, and certificates of registration shall be required and procedures for their issuance and use; and
(ii) establish forms and fees for licenses, permits, tags, and certificates of registration; and
(i) prescribe rules and regulations as it may consider necessary to control the use and harvest of protected wildlife by private associations, clubs, partnerships, or corporations, provided the rules and regulations do not preclude the landowner from personally controlling trespass upon the owner's properties nor from charging a fee to trespass for purposes of hunting or fishing.
(3) The Wildlife Board may allow a season on protected wildlife to commence on any day of the week except Sunday.
(4) The Wildlife Board shall establish fees for licenses, permits, tags, and certificates of registration in accordance with Section 63J-1-504.

It appears that the Legislature has granted broad powers to DWR including, arguably, the authority to regulate weapons in a hunt area.
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Re: DWR Rules and Right To Carry

Postby itsasecret » Mon 10 Aug 2009 10:04 pm

IANAL, but i don't think that 23-14-18 (g) meets this high standard:

76-10-500. Uniform law.
(1) The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
(a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control; or
(b) required to have a permit or license to purchase, own, possess, transport, or keep a firearm.
(2) This part is uniformly applicable throughout this state and in all its political subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms.


To argue that DWR's "The Wildlife Board shall ... prescribe safety measures ..." amounts to a "specific" authorization "by the Legislature by statute" to "enact or enforce [a] rule pertaining to firearms" is akin to <RANT> claiming that the General Welfare clause in the Preamble to the Constitution grants Congress the power to do whatever the @#$% it wants as long as it claims to be trying to "promote the general welfare." It's absurd (unfortunately that hasn't prevented activist judges and liberal politicians from trying) </RANT> and it would mean that our pre-emption law isn't worth the paper it was printed on if every statute that mentions "safety" amounts to "specifically authorized by the Legislature by statute [to] enact or enforce any ordinance, regulation, or rule pertaining to firearms." I certainly don't think that's the case.

Examples:

1) We don't allow employers, required by OSHA and UCA 34-6 to provide a 'safe workplace,' to prohibit guns in their parking lots.

2) We don't allow schools to prohibit firearms possessed by CWP holders despite 53A-11-901 which says, "The Legislature recognizes that every student in the public schools should have the opportunity to learn in an environment which is safe ..." and 53A-11-902 which says, "The conduct and discipline policies required under Section 53A-11-901 shall include: (1) provisions governing student conduct, safety, and welfare".

Why would we allow DWR to use the thin veneer of 23-14-18 as cover for infringing our RKBA? This is a fight I'd feel comfortable picking (and would be quite surprised if DWR really wanted to argue the merits of their case before the Legislature, Attorney General, a judge, or the public).
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Re: DWR Rules and Right To Carry

Postby divegeek » Mon 10 Aug 2009 11:20 pm

itsasecret wrote:IANAL, but i don't think that 23-14-18 (g) meets this high standard:

IANAL either, but I agree.

I think this falls under the rule that in a conflict between statutes the more specific statute wins. The legislature has given them the power to make safety regulations, which we can suppose might include restrictions on firearms, but the legislature has also specifically prohibited every state agency from restricting firearms.
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Re: DWR Rules and Right To Carry

Postby Paul » Tue 11 Aug 2009 10:28 am

I can tell you the DWR thinks they have the legal right to restrict firearms by the statute Car Knocker cited.
I know of no case law to clarify, but I do know that the DWR cites people regularly for firearms violations.
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Re: DWR Rules and Right To Carry

Postby apollosmith » Tue 11 Aug 2009 12:47 pm

PW wrote:Get your CFP and they leave you alone.


I agree. But it's kinda silly for the state of Utah to tell someone from California that doesn't have a permit that they have to leave their pistol home and they can't protect themselves in their car or tent anywhere in the state just because they are going archery hunting. Even if they followed the federal transportation rules (unloaded, locked up, inaccessible), they'd still be violating Utah law by having a pistol locked in their trunk in camp. Not to mention the fact that this directly contradicts the new vehicle law.

It would be great to get Mitch Vilos' opinion on these DWR rules. I can't see how they aren't overstepping their legal authority.
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Re: DWR Rules and Right To Carry

Postby divegeek » Tue 11 Aug 2009 2:38 pm

apollosmith wrote:I agree. But it's kinda silly for the state of Utah to tell someone from California that doesn't have a permit that they have to leave their pistol home and they can't protect themselves in their car or tent anywhere in the state just because they are going archery hunting.

:agree:

Would they actually make an issue of having a gun at your camp site? I can kind of (kind of) see the logic in not wanting bowhunters to be packing firearms while actively hunting, but in camp? That's crazy if so.
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Re: DWR Rules and Right To Carry

Postby itsasecret » Tue 11 Aug 2009 2:58 pm

PW wrote:I know of no case law to clarify, but I do know that the DWR cites people regularly for firearms violations.


Doesn't the fact that DWR cites people regularly for firearms violations kind of guarantee that there will be some case law to clarify this? Are they dropping the charges before prosecution? Are the victims unknowningly pleading guilty to a crime that isn't? Do you know of any specific cases where DWR has cited someone? I'd love to get in touch with them and try to help them fight the citation. This seems like a golden opportunity to generate some case law in support of our position. Thoughts?
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Re: DWR Rules and Right To Carry

Postby RanzITman » Tue 11 Aug 2009 2:58 pm

To automatically assume that a bow hunter with a sidearm is A- A danger, or B- Going to use it in the hunt, isn’t giving the Utah hunter much credit. If you chose to bow hunt it is for a reason. Using a pistol one the game defeats the purpose. I would hope that a sufficient defense could be mounted if cited for some of these “puzzling” rules. Some wilderness areas provide as valid a reason to carry as our city streets.
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Re: DWR Rules and Right To Carry

Postby rpyne » Wed 12 Aug 2009 8:48 pm

divegeek wrote:Would they actually make an issue of having a gun at your camp site? I can kind of (kind of) see the logic in not wanting bowhunters to be packing firearms while actively hunting, but in camp? That's crazy if so.


I can find no authority given to DWR anywhere in 76-10-500 et seq to override the specific authorization given by:

76-10-511. Possession of loaded firearm at residence or on real property authorized.
Except for persons described in Section 76-10-503 and 18 U.S.C. Sec. 922(g) and as otherwise prescribed in this part, a person may have a loaded firearm:
(1) at the person's place of residence, including any temporary residence or camp; or
(2) on the person's real property.
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Re: DWR Rules and Right To Carry

Postby steelhawk » Thu 13 Aug 2009 2:37 pm

divegeek wrote:Would they actually make an issue of having a gun at your camp site? I can kind of (kind of) see the logic in not wanting bowhunters to be packing firearms while actively hunting, but in camp? That's crazy if so.


The DWR thinks they can. This is from page 42 of the Big Game proclamation: "If you obtain an archery permit, you may not possess or be in control of a firearm—or have a firearm in your camp or motor vehicle—during the archery hunt."

A few exceptions are allowed, such as for concealed permit holders.
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Re: DWR Rules and Right To Carry

Postby BowHunter » Tue 13 Oct 2009 7:02 am

What the DWR print and what they can actually prosecute is a totally different thing. ( Per personal example) I was coyote hunting in a limited elk unit that was going on. I was way down in a valley totally out of the way of elk hunters and on BLM and my private property. DWR officer stopped me in my vehicle and told me about the rule of no weapons while a hunt is going on. Not wanting to argue I asked him where the border was and told him I would leave.
This is what the director of my local BLM office told me the following Monday. DWR cannot say who can and cannot carry a firearm at all at anytime on BLM property. I already knew this plus it also pertains to Forest property.
I also had this conversation with DWR legal counsel about 7 years ago, and got the same response from him.
Unfortunately sometimes officers don't totally understand what LAW trumps a RULE.
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Re: DWR Rules and Right To Carry

Postby smurf351 » Tue 13 Oct 2009 9:46 pm

I have never had a problem with DWR officers and carrying firearms down here, concealed or open. But, I don't really spend a lot of time in the field during the bow hunts, so :dunno: . This area is comprised of a lot of very small communities spread out over a great area, and in the almost 20 years that I have been hunting I have only been stopped and checked for license/unloaded gun in vehicle once in that entire time, so again :dunno: maybe I'm just lucky.

But...............

/rant
After the last few years I have pretty much had it with the DWR. :bat: The changes and new rules that they come up with every year, not to mention all the new ways they milk money out of the hunting/fishing populace, have done nothing but left a sour taste in my mouth every time I think about them. :disgusted: I am done "donating" money to this government agency that seems to provide nothing in return. I'll save my money to spend in another state for a quality hunt rather that giving it away to, IMHO, a lost cause.

/end rant
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Re: DWR Rules and Right To Carry

Postby tuffluckdriller » Wed 23 Dec 2009 11:29 pm

itsasecret wrote:
PW wrote:I know of no case law to clarify, but I do know that the DWR cites people regularly for firearms violations.


Doesn't the fact that DWR cites people regularly for firearms violations kind of guarantee that there will be some case law to clarify this? Are they dropping the charges before prosecution? Are the victims unknowningly pleading guilty to a crime that isn't? Do you know of any specific cases where DWR has cited someone? I'd love to get in touch with them and try to help them fight the citation. This seems like a golden opportunity to generate some case law in support of our position. Thoughts?


My cousin was cited during the rifle deer hunt for having a loaded firearm in the vehicle. He does not have a CFP. As I have researched (obviously only a little bit so far), it seems to me that the DWR CO has no right to issue such a citation. He's having to make payments on the $250.00 fine they imposed. What legal recourse is there? Maybe none of you is a lawyer able to offer the accurate info needed... Anyway, thought I'd ask.

smurf351 wrote:/rant
After the last few years I have pretty much had it with the DWR. :bat: The changes and new rules that they come up with every year, not to mention all the new ways they milk money out of the hunting/fishing populace, have done nothing but left a sour taste in my mouth every time I think about them. :disgusted: I am done "donating" money to this government agency that seems to provide nothing in return. I'll save my money to spend in another state for a quality hunt rather that giving it away to, IMHO, a lost cause.


I completely agree that they leave a sour taste and just milk outdoorsmen for every last penny they can--whether they have the legal authority to do so or not.
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