Here's a link to the official form to use for your petition:
http://www.alabamaadministrativecode.st ... 20-1-3.pdf
Notice that the DCNR is required to act one way or the other on your petition ... unless your petition relates to hunting and fishing seasons and bag or creel limits. They are not required by Alabama law to consider your opinion on those matters in any way whatsoever. The US Constitution does afford protection for procedural and substantive due process when your government takes action that affects your rights.
I have a petition that I filed recently that is pending. I believe I know already what their decision will be, but I do have the option of appealing their decision to the courts if that's what I choose to do.
Conservation and Natural Resources Chapter 220-1-3
ALABAMA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES
ADMINISTRATIVE CODE
GENERAL PROVISIONS
CHAPTER 220-1-3
PETITION FOR ADOPTION OF RULES
TABLE OF CONTENTS
220-1-3. 01 Petition For Adoption Of Rules
220-1-3.01 Petition For Adoption Of Rules.
(1) Any person who wishes to propose that the Department of Conservation and Natural Resources adopt, amend, or repeal any rule shall submit said proposal in the following form:
PETITION FOR ADOPTION OF RULE
1. Petitioner
Name:____Eddie H. Maxwell_______________________________________________
Address:__820 Hillview Drive_____________________________________________
Phone:___ Bessemer, Al 35023______________________________________________
2. Character of Change
I propose that the Department of Conservation and Natural Resources
A. ( ) adopt the following new rule.
B. ( ) amend Rule___________________as follows.
C. (X) repeal Rule__220-2-.146 Antlered Buck And Turkey Harvest Record______in total.
3. Text of Proposed Rule
• If you checked box "A" above, type the rule you propose.
• If you checked box "B" above, type the currently effectiverule, adding any proposed language. Proposed new language should be underlined and proposed deletions should be stricken through.
• If you checked box "C" above, skip this and go to Part 4.
4. Purpose of Change
Briefly describe what the effect of this change will be, and why you believe the change should be made.
Rule 220-2-.146 Antlered Buck And Turkey Harvest Record is an unconstitutional usurpation of legislative powers that is forbidden by the Separation of Powers Clause of our state’s constitution. (see: Constitution of Alabama 1901, Article III Distribution of Powers of Government.)
The rule defines several new crimes that are to be punished as class C misdemeanors:
o Failure to possess a harvest record
o Failure to possess a “substantially identical” harvest record form
o Failure to maintain the harvest record
o Failure to record a deer or turkey before it is moved or field dressed
o Failure to possess a harvest record while possessing a deer or turkey killed by another
o Killing a third male deer with other than the described antler configuration
The rule is unnecessary for the enforcement and administration of laws that authorize the setting of seasons and bag limits for deer in order to “protect, conserve, and increase the wildlife of the state”, and defines new crimes as noted “in an improper attempt to circumvent the legislative process”. (see: Timmons v. City of Montgomery, 641 So. 2d 1263 - Ala: Court of Criminal Appeals 1993) Gunter Guy for the appeallee
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Case Law:
"[T]he law making power, invested exclusively in the Legislature, cannot be delegated to any other department of the government, or to any other agency, either public or private.... Official action cannot be made a rule or regulation merely by calling it a rule or regulation." State v. Vaughan, 30 Ala.App. 201, 203, 4 So.2d 5 (1941)
(Holding that a rule made by the conservation department was unconstitutional because the rule accomplished results which could only be enacted by the Legislature).
The legislature cannot delegate its authority to make law and an agency cannot legislate. Marcet v. Board of Plumbers Examination & Registration of Alabama, 249 Ala. 48, 29 So.2d 333, 49-50 (1947); Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 61, 104 So. 538 (1925).
Certainly, an "agency cannot be vested with power to create a criminal offense." Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. 231, 236, 124 So. 523 (1929).
"An administrative agency cannot usurp legislative powers or contravene a statute. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11 (1947).
A regulation cannot subvert or enlarge upon statutory policy. Jefferson County Board of Education v. Alabama Board of Cosmetology, 380 So.2d 913 (Ala. Civ.App.1980)." Ex parte Jones Manufacturing Co., 589 So.2d 208, 210 (Ala.1991).
"`The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, "is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and pursuance of the law." The first cannot be done. To the latter, no valid objection can be made.'"
Heck v. Hall, 238 Ala. 274, 282, 190 So. 280 (1939).
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Evers v. Board of Medical Examiners, 516 So.2d 650, 654-55 (Ala.Civ.App.1987). The legislature cannot delegate its authority to make law and an agency cannot legislate. Marcet v. Board of Plumbers Examination & Registration of Alabama, 249 Ala. 48, 29 So.2d 333, 49-50 (1947); Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 61, 104 So. 538 (1925). Certainly, an "agency cannot be vested with power to create a criminal offense." Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. 231, 236, 124 So. 523 (1929). "An administrative agency cannot usurp legislative powers or contravene a statute. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11 (1947). A regulation cannot subvert or enlarge upon statutory policy. Jefferson County Board of Education v. Alabama Board of Cosmetology, 380 So.2d 913 (Ala. Civ.App.1980)." Ex parte Jones Manufacturing Co., 589 So.2d 208, 210 (Ala.1991).
Timmons v. City of Montgomery, 641 So. 2d 1263 - Ala: Court of Criminal Appeals 1993
*************** Gunter Guy for the appealee *******************
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5. Signature
December 22, 2015 Eddie H. Maxwell (Signed: Eddie H. Maxwell)
Date Petitioner
(2) The Department shall consider the petition, and shall within sixty (60) days after submission of the petition, either deny the petition in writing on the merits, stating its reasons for the denial, or initiate rulemaking proceedings in accordance with Code of Alabama 1975, § 41-22-5.
Author:
Statutory Authority: Code of Ala. 1975,§§9-2-12,41-22-8.
History: Filed September
Supp. 6/30/93 1-3-1