Does the 1987 local act regulating deer hunting (including hunting with dogs) in Anson County override the general state statute G.S. 113-291.5 and the Wildlife Resources Commission rules that ban running deer with dogs west of N.C. Highway 742? And can the WRC make rules on game lands that contradict that state or local law?

Plain-English summary

The AG was asked whether a 1987 Anson County hunting act controlled deer hunting with dogs despite the general statute and Wildlife Resources Commission (WRC) rules, and whether WRC rules for game lands could contradict state or local laws. The opinion said the local act should be enforced throughout Anson County over conflicting parts of G.S. 113-291.5 and WRC rules. The act provided a seven-week firearms deer season and allowed hunting deer with dogs during its last five weeks, subject to the restrictions cited in the act.

The AG reasoned that the local act came later than the general statute, expressly referenced it, and addressed a more specific subject. Yet the opinion warned that the act might not withstand a challenge under G.S. 113-133.1, which limits local wildlife regulation. It distinguished a prior opinion about a county ordinance from the legislature's own local act and said one may argue that G.S. 113-133.1 restricts city and county ordinances rather than later legislative acts. That argument supported the AG's enforcement advice; the opinion did not report a court resolution of a challenge.

For WRC game lands, the AG acknowledged broad authority under G.S. 113-264 but said agency rules could not override a statute or local act enacted by the legislature. Conflicting rule language would be invalid to the extent of the conflict.

Currency note

The opinion applies the statutes, local act, and WRC rules discussed in 1993. Check their current versions and any later decisions before relying on its answer for a present hunt.

Background and statutory framework

G.S. 113-291.5 described where the WRC could regulate dog use in taking wildlife; it included the part of Anson County west of N.C. Highway 742. A WRC rule barred using dogs to chase or take deer west of that road. The 1987 Anson County act set its own firearms deer season and a shorter window for hunting deer with dogs. The AG read the later, more specific local act as controlling where these provisions conflicted.

The opinion also considered G.S. 113-133.1 and an earlier AG view that a county could not adopt an ordinance regulating trapping methods. It noted that the Anson law was passed by the General Assembly, not a county government, while recognizing a possible challenge to that distinction. The WRC's authority over game lands remained subject to enacted law.

Common questions

What did the opinion say governed deer hunting with dogs in Anson County?

It said the 1987 local act should be enforced despite conflicting general statute and WRC rules. Under the act's quoted terms, dogs could aid deer hunting only during the last five weeks of the seven-week firearms season, subject to the stated restrictions.

Was the local act guaranteed to survive a legal challenge?

No. The opinion says it “may not withstand scrutiny” if challenged under the statute limiting local wildlife regulation. It then explains why a later legislative act may be treated differently from a county ordinance.

Could the WRC make a game-land rule contrary to that act?

The AG said no. Although G.S. 113-264 gives the WRC broad authority over its property, a rule conflicting with a legislative act would be invalid to the extent of the conflict.

Does this opinion decide that the legislature can never limit itself through G.S. 113-133.1?

No. It says the legislature can enact local laws regulating wildlife and that one may argue G.S. 113-133.1 was aimed at ordinances. It also expressly warns of a possible challenge to the Anson act.

Citations

• G.S. 113-131(a)
• G.S. 113-133.1, G.S. 113-133.1(a), (b), (c), (f)
• G.S. 113-264, G.S. 113-264(a)
• G.S. 113-291.2, G.S. 113-291.4
• G.S. 113-291.5, G.S. 113-291.5(a)-(f)
• Sess. Laws 1987 ch. 231, § 3
• 15A NCAC 10B .0109, 15A NCAC 10D .0003(e)(3)(C)
• Shaw v. Baxley, 270 N.C. 740, 155 S.E.2d 266 (1967)
• National Food Stores v. North Carolina Bd. of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966)
• Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978)
• States' Rights Democratic Party v. State Bd. of Elections, 229 N.C. 179, 49 S.E.2d 379 (1948)
• Ramsey v. North Carolina Veterans Comm'n, 261 N.C. 645, 135 S.E.2d 659 (1964)

Source

• Landing page: https://ncdoj.gov/opinions/deer-hunting-with-dogs/

Original opinion text

1. Does the local law control deer hunting with dogs in Anson County and override the State law and WRC rules?

G.S. 113-291.5 was enacted in 1979 and states:

(a) Except as provided in G.S. 113-291.4, in the area described below, the Wildlife Resources Commission may regulate the use of dogs taking wildlife with respect to seasons, times, and places of use. The area covered by this subsection is that part of the State in and west of the following counties or parts of counties: Rockingham; Guilford; that part of Alamance and Orange lying south of Interstate Highway 85; Chatham; that part of Wake lying south of N.C. Highway 98; Lee; Randolph; Montgomery; Stanly; Union; and that part of Anson lying west of N.C. Highway 742.

(b) In the area of the State lying east of that described in subsection (a), the Wildlife Resources Commission may not restrict or prohibit the use of dogs in hunting or the training of dogs, in season or out, except during the breeding and raising seasons for game during the period April 15 through June 15.

(c) On game lands, wildlife refuges, and public hunting grounds the Wildlife Resources Commission may regulate the possession and use of dogs and may impound dogs found running at large without supervision or, if unsupervised, without means of identification.

(d) The Wildlife Resources Commission may not by its rules anywhere in the State restrict the number of dogs used in hunting or require that any particular breed of dog be used in hunting.

(e) It is unlawful to allow dogs not under the control of the owner or the individual in possession of the dogs to run or chase deer during the closed deer season.

(f) Nothing in this section is intended to require the leashing or confining of pet dogs.

Pursuant to this statute, WRC has promulgated rules regulating the use of dogs. 15A NCAC 10B .0109 prohibits the use of dogs to run or chase deer or to attempt to take deer west of NC 742 in Anson County (as well as in the other areas described in G.S. 113-291.5(a)). 15A NCAC 10D .0003(e)(3)(C) allows dogs to be used in hunting game birds on game lands open to deer hunting and located in or west of the counties of Rockingham, Guilford, Randolph, Montgomery and Anson, during the regular season for hunting deer with guns (with the exception of a few counties).

In 1987, the legislature enacted "AN ACT TO PROHIBIT HUNTING IN ANSON COUNTY WITHOUT THE WRITTEN PERMISSION OF THE LANDOWNER, TO REGULATE DEER HUNTING SEASON IN ANSON COUNTY, TO PROHIBIT HUNTING FROM THE RIGHT-OF-WAY OF A PUBLIC ROAD, AND TO REQUIRE OWNER IDENTIFICATION ON DOGS USED TO HUNT DEER IN ANSON COUNTY," Sess. Laws 1987 ch. 231. Section 3, in pertinent part, provides as follows:

Notwithstanding the provisions of G.S. 113-291.2 and regulations issued pursuant thereto, the season for hunting deer with firearms in Anson County shall last seven weeks. During the season for hunting deer with firearms in Anson County, deer may be hunted with the aid of dogs only during the last five weeks of the season, subject to the restrictions of G.S. 113-291.5(b) and the regulations issued pursuant thereto.

Sess. Laws 1987 ch. 231 is a proper exercise of legislation authority and overrides any conflicting provisions of G.S. 113-291.5. Where two statutes address the same subject they must be read in pari materia and reconciled if possible to give effect to each. Shaw v. Baxley, 270 N.C. 740, 155 S.E.2d 266 (1967). Likewise, where one statute generally addresses a subject while another statute specifically addresses the same subject, the specific statute will be controlling, unless it is apparent that the Legislature intended the general statute to be controlling; especially where the specific statute was enacted later. National Food Stores v. North Carolina Bd. of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966).

By its passage of Sess. Laws 1987 Ch. 231, the Legislature apparently intended to carve out a small exception in Anson County for a particular portion of the gun-deer season. The intent of the Legislature to have Sess. Laws 1987 ch. 231 take precedence over G.S. 113-291.5 is obvious for the following reasons: (1) the local law was enacted subsequent to G.S. 113-291.5; (2) Sess. Laws 1987 ch. 231 expressly references G.S. 113-291.5; and (3) Sess. Laws 1987 ch. 231 is more specific than G.S. 113-291.5.

However, if Sess. Laws 1987 ch. 231 were to be challenged, it may not withstand scrutiny. G.S. 113-131(a) provides that, "The marine and estuarine and wildlife resources of the State belong to the people of the State as a whole. The Department and the Wildlife Resources Commission are charged with stewardship of these resources."

In addition, G.S. 113-133.1 limits the extent of local regulation of wildlife resources. Subsection (a) expressly states that:

Nothing in this section is intended to invalidate local legislation or local ordinances which exercise valid powers over subjects other than the conservation of wildlife resources, even though an incidental effect may consist of an overlapping or conflict of jurisdiction as to some particular provision not essential to the conservation objectives set out in this Subchapter.

Subsection (f) provides:

The Wildlife Resources Commission is directed to review periodically all local acts affecting conservation of wildlife resources and notify local authorities and the General Assembly as to those that:

(1) Substantially duplicate provisions of this Subchapter.

(2) Seriously conflict with conservation policies set out in this Subchapter.

(3) Seriously conflict with conservation policies developed for the people of this state as a whole by the Wildlife Resources Commission.

In 1982, the Attorney General issued an opinion relying on the aforementioned statutes which concluded that a county may not adopt an ordinance regulating the methods of trapping wildlife. The reasoning used in the opinion was that by giving WRC the sole authority to manage the wildlife resources for the people of North Carolina, the Legislature has preempted the area of wildlife conservation and management with the exception of those local acts and ordinances which exercise valid powers, i.e., safety, health and welfare and which may have an incidental effect on wildlife resources. Because Sess. Laws 1987 ch. 231 does not address the safety, health or welfare of the citizens affected by the legislation, but rather, regulates the manner of taking wildlife it arguable goes beyond the constraints provided by G.S. 113-133.1.

The opinion, however, did not address the issue of whether the Legislature can subsequently enact local acts (as opposed to city or county ordinances) which regulate the wildlife resources. Pursuant to its constitutional mandate, the Legislature can enact local laws which regulate wildlife resources.

First, the Legislature may, and has, delegated a portion of its power to regulate the wildlife resources of the State, but it may not abdicate its power. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Second, it may be argued that the Legislature only intended county and city ordinances to be restricted by G.S. 113-133.1. Subsection (b) refers to "special, local, and private acts and ordinances" enacted prior to the ratification date of the statute. The subsection also refers to "local legislation or local ordinances." Subsection (c) refers to both preexisting and prospective "city or county ordinances." Finally, subsection (f) refers to "local acts" which fall outside the constraints of the statute. However, the subsection merely directs WRC to review and report such local acts.

Based on the foregoing principles of statutory construction, Sess. Laws 1987 ch. 231 should be enforced in all of Anson County notwithstanding either G.S. 113-291.5 or WRC's administrative rules.

2. Does the WRC have authority to establish rules on its game lands that contradict state or local laws when the purpose is regulation of hunting, manner of taking, or wildlife conservation?

WRC cannot promulgate valid administrative rules to override a local act of the Legislature. Although an agency may be granted limited powers to promulgate rules for the implementation of statutes, such rules do not have the effect of substantive law, and may not be promulgated contrary to statutory provisions. Adams v. North Carolina Dept. of Natural & Economic Resources, Supra; States' Rights Democratic Party v. State Bd. of Elections, 229 N.C. 179, 49 S.E.2d 379 (1948). Likewise, an agency cannot promulgate a rule which, in effect, amends or repeals a statute. Only the Legislature may amend or repeal its statutes. Ramsey v. North Carolina Veterans Comm'n, 261 N.C. 645, 135 S.E.2d 659 (1964).

WRC is given broad authority in G.S. 113-264 to regulate its game lands. G.S. 113-264(a) provides, in pertinent part, as follows:

The Department [Department of Environment, Health, and Natural Resources] and the Wildlife Resources Commission are granted the power by rule to license, regulate, prohibit, or restrict the public as to use and enjoyment of, or harm to, any property of the Department or the Wildlife Resources Commission, and may charge the public reasonable fees for access to or use of such property.

"Property" as used in that section includes game lands.

However, this broad grant of authority does not give WRC the power to promulgate rules which conflict with other statutes and local laws enacted by the Legislature. Therefore, any rules that contain provisions which are conflicting, are invalid to the extent of the conflicting language.

Ann Reed, Senior Deputy Attorney General

Melissa L. Trippe, Assistant Attorney General