May a North Carolina county adopt an ordinance regulating the method of trapping wildlife?
Plain-English summary
The Pasquotank County Attorney asked whether his county could adopt an ordinance regulating the method by which wildlife was trapped. The AG said no, the entire subject was preempted by state law.
The reasoning ran through G.S. 113-133.1, the state's preemption statute for marine, estuarine, and wildlife resources. Subsection (a) declared that "the enjoyment of the wildlife resources of the State belongs to all of the people of the State." Subsection (b) then repealed, with limited exceptions, all special, local, and private acts and ordinances regulating wildlife conservation. Subsection (c) said that future local ordinances were permitted only when they were "otherwise validly authorized" and had "only minor and incidental impact" on the conservation of marine, estuarine, and wildlife resources.
The AG read that three-part structure as a clear field preemption. The legislature reserved wildlife regulation to itself. Only narrow incidental ordinances survived. The AG gave an example: a city or county ordinance prohibiting the discharge of firearms from public roads would survive because its primary purpose was traffic safety, not wildlife conservation, and the wildlife effect was incidental.
A county ordinance directly regulating trapping methods had nothing incidental about it. It went straight to wildlife conservation, the same field the state already comprehensively occupied. The AG pointed to the detailed state framework: G.S. 113-291.1 (lawful methods of taking wildlife generally), G.S. 113-291.5 (additional restrictions), and especially G.S. 113-291.6, which prescribed trap types, sizes, tagging, and placement. Any county overlay on top of that detailed regulatory scheme would be regulating the same subject the state had already handled. That conflict (or duplication) is exactly what preemption forecloses.
The AG drew on State v. Tenore, 280 N.C. 238 (1972), for the controlling preemption standard: a county can regulate a subject already governed by state law only where it cannot be fairly implied that the legislature intended to preempt the entire field. The same principle applied to municipalities and local health boards under State v. Williams, 283 N.C. 550 (1973). On wildlife specifically, the preemption inference was overwhelming.
Currency note
This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The wildlife resources statutes have been amended many times since 1982. The trapping rules in particular have been updated. The general preemption framework in G.S. 113-133.1 still controls, but anyone designing or attacking a local ordinance today should check the current statutes and Wildlife Resources Commission rules.
Common questions
Q: Could a county ban hunting or trapping entirely on county-owned land?
A: That is a different question and the opinion did not answer it. Counties can typically set rules governing their own property as proprietors, separate from their general regulatory authority. The opinion was specifically about general-purpose ordinances regulating the public's trapping methods.
Q: Could a county set a quieter rule, like requiring traps to be checked daily?
A: Same problem. Once the state has set detailed trapping rules (type, size, tagging, placement) in G.S. 113-291.6, a county overlay on the same subject is doing exactly what the field preemption forbids. The AG's "minor and incidental" carve-out really was narrow.
Q: What ordinances survive after this opinion?
A: Local rules whose main purpose is something else (public safety, noise, traffic) and whose wildlife-conservation effect is a side consequence. The example the AG gave was a no-firearm-discharge-from-public-roads ordinance. The dominant purpose was road safety; any wildlife effect was incidental.
Q: Does this only apply to counties, or to cities too?
A: The same preemption principle applies to municipalities and local boards of health, as the AG noted by citing State v. Williams. Any local government trying to regulate wildlife by ordinance faces the same field-preemption barrier.
Background and statutory framework
The preemption statute did the heavy lifting. Three subsections worked together:
- G.S. 113-133.1(a). Declared wildlife resources to belong to all the people of the state. This is a policy statement, but it set up the statewide-uniformity rationale for preemption.
- G.S. 113-133.1(b). Affirmatively repealed all preexisting special, local, and private acts and ordinances regulating wildlife conservation, subject to specified exceptions. This was retroactive cleanup.
- G.S. 113-133.1(c). Permitted future local ordinances only when they were "otherwise validly authorized" and had only "minor and incidental" impact on marine, estuarine, and wildlife resource conservation.
The substantive state framework on trapping was just as comprehensive:
- G.S. 113-291.1. General lawful methods of taking wildlife.
- G.S. 113-291.5. Additional restrictions on the manner of taking.
- G.S. 113-291.6. Detailed trapping rules, including trap types, sizes, tagging requirements, and placement rules.
The AG read these together to mean the legislature had occupied the entire trapping field. Allowing a county overlay would either duplicate state law (a waste) or contradict it (a direct conflict). Either way, the preemption analysis controlled.
State v. Tenore (1972) was the controlling preemption precedent. State v. Williams (1973) extended the principle beyond counties to municipalities and local boards. By 1982, North Carolina's preemption case law was settled enough that the AG could state the wildlife preemption result confidently in a short opinion.
Citations
- N.C.G.S. § 113-133.1(a) (wildlife resources belong to all the people of the state)
- N.C.G.S. § 113-133.1(b) (repeal of preexisting local wildlife regulations)
- N.C.G.S. § 113-133.1(c) (minor and incidental impact carve-out for future local ordinances)
- N.C.G.S. § 113-291.1 (lawful methods of taking wildlife)
- N.C.G.S. § 113-291.5 (additional restrictions)
- N.C.G.S. § 113-291.6 (detailed trapping regulations)
- State v. Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972) (preemption standard)
- State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973) (applying preemption to municipalities and local boards)
- 50 N.C. Atty. Gen. Rep. 42 (1980) (earlier AG opinion on preemption)
Source
Original opinion text
Requested By: H. T. Mullen, Jr.
County Attorney
Pasquotank County
Question:
May a County adopt an ordinance regulating the method of trapping wildlife?
Conclusion:
No.
In State v. Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972), the Supreme Court held that a County can regulate conduct already governed by State law only where it cannot be fairly implied that the Legislature intended to preempt the entire subject. This same principal of preemption has been applied to enactments of other political subdivisions such as municipalities and local boards of health. See, e.g., State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973); 50 N.C. Atty. Gen. Rep. 42 (1980).
N.C.G.S. § 113-133.1(a) states that "The enjoyment of the wildlife resources of the State belongs to all of the people of the State." The Legislature went on to repeal, with certain specified exceptions, all special, local, and private acts and ordinances regulating the conservation of wildlife resources. N.C.G.S. § 113-133.1(b). With respect to future ordinances, the Legislature specifically said,
Nothing in the section is intended to repeal or prevent the enactment of any city or county ordinance otherwise validly authorized which has only minor and incidental impact on the conservation of marine and estuarine and wildlife resources . . . N.C.G.S. § 113-133.1(c).
The unmistakable meaning of these provisions is that the Legislature has reserved the regulation of wildlife resources to itself and has thus preempted the entire field to the exclusion of all local ordinances except those which have only a "minor and incidental" impact on wildlife conservation (e.g., an ordinance prohibiting the discharge of firearms from public roads).
The Legislature has specifically undertaken to regulate the manner of taking wildlife in several sections. See, e.g., N.C.G.S. § 113-291.1, 291.5, 291.6, N.C.G.S. § 113-291.6 sets out trapping regulations in some detail, describing the type, size, tagging and placing of traps.
In light of this clear legislative intention preempt the entire field of wildlife regulation, we are of the opinion that a County may not adopt an ordinance regulating the method of trapping wildlife.
Rufus L. Edmisten
Attorney General
Lucien Capone, III
Assistant Attorney General