Did South Carolina’s deer baiting ban also forbid hunting over bait in Game Zones 1 and 2?

Plain-English summary

In 2012, the South Carolina Attorney General read the amended deer statute as forbidding baiting for deer in Game Zones 1 and 2, while not itself forbidding hunting or taking deer over bait in those zones. The opinion emphasized that the Legislature chose the words “unlawful to bait for deer” in the 2008 amendment. It declined to add a separate prohibition on hunting over bait where the text did not say so.

The result differed on Wildlife Management Area (WMA) lands. The AG quoted a DNR regulation saying “baiting or hunting over a baited area” was prohibited on all WMA lands. The opinion thus distinguished the zone-specific statutory wording from the broader WMA rule. It did not assess a particular hunting incident.

Currency note

This opinion was issued in 2012. 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.

Common questions

Was baiting for deer forbidden in Game Zones 1 and 2?
A: Yes. The AG said the amended statute expressly prohibited that conduct in those zones.

Did that same statute forbid hunting deer over bait in those zones? A: The AG said no. It read the statute's reference to baiting for deer literally and said a broader ban would require legislative action.

What rule applied on WMA lands?
A: The opinion quoted DNR Regulation 123-40 (2.6), which prohibited both baiting and hunting over a baited area on all WMA lands.

Did the opinion say a hunter could bait on WMA land?
A: No. It identified an express regulatory ban on baiting there, as well as on hunting over a baited area.

Background and statutory framework

DNR counsel asked whether the 2008 change to the deer statute reached hunting over bait as well as placing bait. The AG relied on the amendment's words and the separate statutory grant of regulatory authority on WMA lands. The WMA regulation used broader language than the zone-specific statutory clause.

Citations and references

The opinion quotes DNR Regulation 123-40 (2.6) for the WMA prohibition and discusses the deer statute identified in its official title.

Official title

Regarding our interpretation of S.C. Code Ann. §50-11-310(B). Specifically, whether or not §50-11-310(B) prohibits hunting or taking over bait, or simply prohibits baiting for deer.

Requester

Buford S. Mabry, Jr., Chief Counsel, South Carolina Department of Natural Resources

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-18-2012/
• Original PDF: https://www.scag.gov/wp-content/uploads/2012/01/mabry-b-s-os-9383-1-18-12-baiting-hunting-deer.pdf

Original opinion text

ALAN WILSON
ATTORNEY GENERAL

January 18, 2012

Buford S. Mabry, Jr., Chief Counsel
South Carolina Department of Natural Resources
P.O. Box 167
Columbia, SC 29202
Dear Mr. Mabry:
We received your letter on behalf of the South Carolina Department of Natural Resources ("DNR") requesting an opinion regarding our interpretation of S.C. Code Ann. §50-11-3 lO(B). You ask us whether or not §50-11-3 lO(B) prohibits hunting or taking deer over bait, or simply prohibits baiting for deer. Law/Analysis Prior to amendments in 2008, §50-11-3 lO(B) provided that:
[i]n Game Zones 1 and 2, 1 and on WMA lands,2 the [DNR] may promulgate regulations in accordance with the Administrative Procedures Act to establish the methods for hunting and taking of deer and for other restrictions for hunting and taking deer. In 2008 S.C. Acts No. 286, §9, the Legislature rewrote §50-11-31 O(B) to now read as follows:
[i]n Game Zones 1 and 2, it is unlawful to pursue deer with dogs, and .i! lli unlawful to bait for deer. [Emphasis added]. Additionally, the Legislature redesignated subsection (C) as subsection (D), and added the following as subsection (C):

The Legislature divided the State into several zones "[f]or the purpose of protection and management of wildlife."See §51-1-60(1) & (2) [designating the boundaries of Game Zone 1 and Game Zone 2]. 1

zwildlife Management Areas ("WMA") are areas designated by the DNR for purposes of wildlife management. See §§50-11-2200 et seq. Various provisions of the Code and regulations protect WMA from damage or destruction, regulate hunting and fishing thereupon, and provide for special permits issued by the DNR for privileges upon such lands.

REMBERT

c. DENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Mabry
Page2
January 18, 2012

[o]n WMA lands, the department may promulgate regulations in accordance with the Administrative Procedures Act to establish the methods for hunting and taking of deer and for other restrictions for hunting and taking deer. In reviewing §50-11-31 O(B), it is imperative that there be compliance with the rules of statutory construction. South Carolina Coastal Conservation League v. South Carolina Dept. of Health and Environmental Control, 390 S.C. 418, 702 S.E.2d 246 (2010). Statutory interpretation is a question of law. City of Newberry v. Newberry Elec. Co-op., Inc., 387 S.C. 254, 692 S.E.2d 510 (2010). The primary rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000); Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 476 S.E.2d 690 (1996). The best evidence of intent is in the statute itself. Unless there is something in the statute requiring a different interpretation, the words used in a statute must be given their plain and ordinary meaning. Id. If the [L]egislature's intent is clearly apparent from the statutory language, a court may not embark upon a search for it outside the statute. When the language of a statute is clear and explicit, a court cannot rewrite the statute and inject matters into it which are not in the [L]egislature' s language, and there is no need to resort to statutory interpretation or legislative intent to determine its meaning.

While it is true that the purpose of an enactment will prevail over the literal import of the statute, this does not mean that [a] Court can completely rewrite a plain statute. Hodges, 533 S.E.2d at 582. What the Legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Therefore, the courts are bound to give effect to the expressed intent of the Legislature. Media General Communications, Inc. v. South Carolina Dept. of Revenue, 388 S.C. 138, 694 S.E.2d 525 (2010); Wade v. State, 348 S.C. 255, 559 S.E.2d 843 (2002); see also Jones v. South Carolina State Highway Departmen!, 247 S.C. 132, 146 S.E. 2d 166, 168 (1966) ["There is no safer nor better rule of interpretation then when language is clear and unambiguous it must be held to mean what it plainly states"]. Finally, we note that when a statute is penal in nature, it will be construed strictly against the State and in favor of a defendant. Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001 ); State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991). South Carolina deems it a criminal offense to hunt certain game over a baited area. See, e.g., §5011-10 [waterfowl]; §50-11-430 [bear]; §50-11-510 [wild turkey]; §50-9-1120(2) [point system for illegally hunting over bait]. We believe the Legislature was particularly clear and unambiguous in the 2008 amendments to §50-11-310(B) that baiting for deer in Game Zones 1and2 is proscribed. The rules of statutory construction dictate that if the Legislature had intended otherwise, or had also specifically intended to prohibit hunting or taking deer over bait in these areas, then it would have said so. This is a choice which the Legislature freely made and we are constrained to interpret the statute accordingly. Any change in the law must come from the Legislature and not an opinion of this office. See Ops. S.C. Atty. Gen., December 22, 2011; March 29, 2011.

Mr.Mabry
Page3
January 18, 2012

Importantly, we note §50-11-310(C), which provides that on WMA lands, the DNR "may promulgate regulations . . . to establish the methods for hunting and taking of deer and for other restrictions for hunting and taking deer." See also §50-11-2200(C) [stating the DNR may "promulgate regulations allowing any of the acts or conduct by prescribing acceptable times, locations, means, and other appropriate restrictions not inconsistent with the protection, preservation, operation, maintenance, and use of such lands [including] hunting or taking wildlife"]. Chapter 123 of the South Carolina Code of Regulations is dedicated to the DNR. Specifically, 27 S.C. Code Ann. Reg. 123-40 (2.6) (Supp. 2010) provides:
[o]n all WMA lands, baiting or hunting over~ baited area~ prohibited. As used in this section, "bait" or "baiting" means the placing, depositing, exposing, distributing, or scattering of shelled, shucked, or unshucked corn, wheat, or other grain or other food stuffs to constitute an attraction, lure, or enticement to, on, or over any area. "Baited area" means an area where bait is directly or indirectly placed, deposited, exposed, distributed, or scattered and the area remains a baited area for ten (10) days following the complete removal of all bait. Salt/minerals are not considered bait. [Emphasis added]. Conclusion Based on a plain reading of §50-11-3 lO(B), as amended by the Legislature in 2008, it is the opinion of this office that the provision expressly prohibits baiting for deer in Game Zones 1 and 2, but not hunting or taking deer over bait. However, we note that baiting or hunting deer over baited areas is prohibited on all WMA lands pursuant to Reg. 123-40 (2.6), and in accordance with DNR's authority to regulate ''the methods for hunting and taking of deer and for other restrictions for hunting and taking deer" under §50-11-31 O(C). If you have any further questions, please advise.

Very truly yours,

#

N. Mark Rapoport
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General