DCNR surveys

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Edwardo

DCNR surveys

Post by Edwardo »

The official DCNR survey that hunters and fishermen should use if they want their input to have the force and effect of law is found in the Alabama Administrative Procedures Act.

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
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
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).


XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

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 *******************

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX





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

Edwardo

Re: DCNR surveys

Post by Edwardo »

§ 41-22-3(9)g.6

The Code of Alabama 1975
Title 41 STATE GOVERNMENT.
Chapter 22 ADMINISTRATIVE PROCEDURE.
Section 41-22-3 Definitions.

The following words and phrases when used in this chapter shall, for the purpose of this chapter, have meanings respectively ascribed to them in this section, except when the context otherwise requires:

... (9) RULE. Each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule or by federal statute or by federal rule or regulation; provided, however, all forms shall be filed with the secretary of the agency and with the Legislative Reference Service and all forms, except intergovernmental, interagency, and intra-agency forms which do not affect the rights of the public and emergency forms adopted pursuant to Section 41-22-5, shall be published in the Agency Administrative Code. The term includes the amendment or repeal of all existing rules, but does not include any of the following:

... g. Any rules or actions relating to any of the following:
... 6. Hunting and fishing seasons or bag or creel limits promulgated by the Commissioner of the Department of Conservation and Natural Resources.
The Alabama Legislature adopted the AAPA in 1981 as "a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public." Ala.Code 1975, § 41-22-2(a). In pertinent part, the AAPA has, since its inception, defined the term "rule" generally as "[e]ach agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy." Ala.Code 1975, § 41-22-3(9). Despite that general definition, subsection (9)g. of § 41-22-3, as originally adopted, excluded from the scope of the term "rule" five specific classes of rules or actions that might otherwise be classified as "rules" under the AAPA; those five classes of rules or actions excluded under the AAPA included attorney-general opinions, rules governing prison inmates and parolees, and advisory opinions issued by the Alabama Ethics Commission. In 1986, the Legislature amended the AAPA so as to exempt a sixth class of rules or actions from the definition of "rule," i.e., "any rules or actions relating to ... [h]unting and fishing seasons, or bag or creel limits promulgated by the Commissioner of the Department of Conservation and Natural Resources." Ala.Code 1975, § 41-22-3(9)g.6.

Inclusion of particular administrative actions within, or exclusion of such actions from, the scope of the term "rule" has particular legal ramifications. For example, the AAPA generally mandates that public notice and opportunity for comment must precede the adoption of a "rule" by an administrative agency. See Ala.Code 1975, § 41-22-5. The AAPA also provides, among other things, that under certain circumstances the enforcement of a "rule" may be "stayed by injunctive relief" in the Montgomery Circuit Court. Ala.Code 1975, § 41-22-10. Finally, on the petition of a person substantially affected by an agency's "rule," that agency may issue a declaratory ruling, subject to judicial review, concerning the validity or applicability of that "rule." Ala.Code 1975, § 41-22-11.

Alabama Dog Hunters Ass'n v. State, 893 So. 2d 1224 - Ala: Court of Civil Appeals 2004

Edwardo

Re: DCNR surveys

Post by Edwardo »

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Edwardo

Re: DCNR surveys

Post by Edwardo »

Constitution of the United States of America

Amendment V


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Amendment XIV
Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

BSK
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Re: DCNR surveys

Post by BSK »

Edwardo,

I'm having trouble understanding your beef. What is it you don't believe the Game and Fish Department has the constitutional legal authority to do?

Edwardo

Re: DCNR surveys

Post by Edwardo »

BSK wrote:Edwardo,

I'm having trouble understanding your beef. What is it you don't believe the Game and Fish Department has the constitutional legal authority to do?
Alabama hunters and fishermen have been completely removed from the rule making process when matters concerning hunting and fishing seasons and bag and creel limits are being set.

That constitutes denial of liberty without due process of law. Hunting and fishing are recognized as fundamental rights in the Constitution of Alabama 1901, Amendment 597.

BSK
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Re: DCNR surveys

Post by BSK »

Edwardo wrote:
BSK wrote:Edwardo,

I'm having trouble understanding your beef. What is it you don't believe the Game and Fish Department has the constitutional legal authority to do?
Alabama hunters and fishermen have been completely removed from the rule making process when matters concerning hunting and fishing seasons and bag and creel limits are being set.

That constitutes denial of liberty without due process of law. Hunting and fishing are recognized as fundamental rights in the Constitution of Alabama 1901, Amendment 597.
Does the wildlife agency do no surveys of hunters opinions on these matters?

Edwardo

Re: DCNR surveys

Post by Edwardo »

They have no obligation under the law to involve hunters or fishermen in any way. We only have their solemn oaths to support our constitutions, and you know what that's worth these days.

I'm currently awaiting a reply on what procedures they offer for due process when seasons and bag limits are being set. I've heard nothing from them so far.

[CC addressees are members of the Alabama Legislative Council]
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BSK
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Re: DCNR surveys

Post by BSK »

Edwardo wrote:I'm currently awaiting a reply on what procedures they offer for due process when seasons and bag limits are being set.
Can you give an example of a state that has legal due process for hunters as for the setting of bag limits?

I'm trying to think of an example and cannot. Although several states have an advisory board or citizen commission that in theory represents the interests of hunters/fisherman.

Edwardo

Re: DCNR surveys

Post by Edwardo »

I've never researched how due process is handled in other states for those matters. It's all I can do to try to keep my state from dropping off the deep end into anarchy. We're almost there, btw.

Elk Hunter
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Re: DCNR surveys

Post by Elk Hunter »

Eddie,

You make great arguments and they sound very sound. But, I wish you would openly admit that your goal is too totally remove the DCNR from this process and to have totally UNREGULATED hunting and fishing. I can not support that. Man has proven many times that it can't and will not regulate itself. Elk were totally eliminated from the southeastern states and deer and turkey almost met the same fate.

Edwardo

Re: DCNR surveys

Post by Edwardo »

Why don't you admit that you know better than that Barry?

Adhering to our constitutions and our game and fish laws does not constitute total deregulation. Who are you trying to fool?

The case law I cited to support my position included the commissioner's own argument against unconstitutional agency rules. Tell him his arguments sound good but he wants traffic on our highways to be completely unregulated while you are hunting at night, baiting, trapping game animals, using night vision scopes and violating all kinds of laws and rules with him and Director Sykes.

Elk Hunter
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Re: DCNR surveys

Post by Elk Hunter »

As usual you make a good point. But, I contest that a non-native evasive species should not be a game animal no more than a termite or cockroach is a game animal. The landowners and farmers I work for a VERY appreciative that I do have those abilities to combat feral hogs.

Now since we are admitting the truth.

Please describe your desired level of game regulations. And I don't think it will take a book.

From our prior discussions I believe it goes something like this:

You believe it landowner's rights. To the extent they should have the right to do whatever they feel is right with the game on their property.

Is that pretty close?

Edwardo

Re: DCNR surveys

Post by Edwardo »

Elk Hunter wrote:As usual you make a good point. But, I contest that a non-native evasive species should not be a game animal no more than a termite or cockroach is a game animal. The landowners and farmers I work for a VERY appreciative that I do have those abilities to combat feral hogs.
The law authorizes the commissioner to designate game animals. If he chooses to designate hogs and coyotes as game animals, then they are protected by our game and fish laws the same as any other game animal. That's not your choice to make and if you don't agree with him it doesn't excuse your violations of the law.
Please describe your desired level of game regulations. And I don't think it will take a book.

From our prior discussions I believe it goes something like this:

You believe it landowner's rights. To the extent they should have the right to do whatever they feel is right with the game on their property.

Is that pretty close?
Not even close. Don't make up things I haven't said.

You know full well I support the game and fish laws written by legislators who are authorized to make law by our constitutions. It's the rules of unelected men of the executive branch who ignore the limits of their authority defined in our constitution and our laws that I oppose.

Elk Hunter
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Re: DCNR surveys

Post by Elk Hunter »

Please describe your desired level of game regulations.

Edwardo

Re: DCNR surveys

Post by Edwardo »

Elk Hunter wrote:Please describe your desired level of game regulations.
Sure. I agree with our legislature:

Conservation authority:

http://alisondb.legislature.state.al.us ... /9-2-2.htm

Wildlife management authority:

http://alisondb.legislature.state.al.us ... 11-300.htm

http://alisondb.legislature.state.al.us ... 11-301.htm

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