Can Virginia's wildlife agency prohibit the use of dogs when it issues a bear kill permit to protect farm property?

Plain-English summary

A Powhatan County beekeeper rented hives to a Cumberland County farmer for crop pollination. A bear destroyed about $4,500 worth of those hives over three incidents in 2012. Each time, the Department of Game and Inland Fisheries (DGIF) issued a short-term "kill permit" under § 29.1-529 authorizing the bear to be taken, and each time the permit expired before anyone could locate the bear. The beekeeper asked for permission to use hunting dogs to track the animal down. DGIF refused, citing concern that the dogs could cross onto neighboring property where the kill permit had no force.

Powhatan's Commonwealth's Attorney asked the AG whether DGIF actually had the legal power to condition a § 29.1-529 kill permit on not using dogs. The AG said no. § 29.1-529 lays out a detailed scheme for who can get a kill permit, how many animals can be taken, how long the authorization lasts, and what hours of the day apply, but it says nothing about restricting hunting methods. By the canon of expressio unius est exclusio alterius, that omission was telling: the legislature spelled out the conditions the Director could impose, and dog use was not one of them.

The AG also pointed out that bear hunting with dogs is otherwise regulated by 4 Va. Admin. Code § 15-50-110, which bans the practice during deer season in certain counties and in the national forests. Cumberland County was not on that list. The kill permit statute is specialized; the general dog-hunting regulation is more general; when the specialized statute does not condition the permit on a particular hunting method, the Director cannot read that condition in.

On the spillover-property concern, the AG noted that § 18.2-136 already governs hunters whose dogs stray onto land where they have no hunting rights: the hunter may go retrieve the dogs but must be unarmed and may not hunt while there. That existing statute applies to kill-permit holders the same as to bear hunters during regular season.

Currency note

This opinion was issued in 2013. 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.

Background and statutory framework

Virginia generally prohibits killing wild animals without authorization. § 29.1-521(A)(1) makes it unlawful "[t]o hunt, trap, take, capture, kill, attempt to take, capture or kill ... any wild bird or wild animal." § 29.1-530.2 makes a violation involving a bear a Class 1 misdemeanor.

§ 29.1-529 carves out a property-damage exception. When a landowner or lessee reports that deer, elk, or bear are damaging fruit trees, crops, livestock, or personal property used for commercial agricultural production, the DGIF Director or his designee must investigate. If the Director finds the animal responsible, the statute requires him to "authorize in writing the owner, lessee or any other person designated by the Director or his designee to kill such deer or bear when they are found upon the land upon which the damages occurred." The statute lets the Director cap the number of animals, set the duration of the authorization, and restrict the hours during which it operates. It also allows him to require nonlethal control measures within a reasonable period instead of authorizing a kill. The statute does not mention dogs.

Separately, the Board of Game and Inland Fisheries has authority under § 29.1-103(11) and § 29.1-501(A) to set wildlife conservation and hunting regulations, and may delegate power to the Director under § 29.1-103(12). The Board's bear-hunting regulations are at 4 Va. Admin. Code §§ 15-50-11 through 15-50-120. 4 Va. Admin. Code § 15-50-110 lists the jurisdictions where dogs cannot be used to hunt bear during deer season: the counties west of the Blue Ridge, certain Piedmont counties (Amherst west of U.S. 29, Bedford, Nelson west of Route 151), and within the national forests; the first 12 days of deer season in Greene and Madison; and a specific list including Campbell, Carroll east of the New River, Fairfax, Floyd, Franklin, Grayson east of the New River, Henry, Loudoun, Montgomery south of I-81, Patrick, Pittsylvania, Pulaski south of I-81, Roanoke south of I-81, Wythe portions, the city of Lynchburg, and specified wildlife management areas. Cumberland County does not appear on the list.

§ 29.1-516.1 separately permits leashed tracking dogs statewide to find a wounded or dead bear or deer, provided the searchers have permission to access the land and carry no weapons.

§ 18.2-136 addresses the perennial property-line problem: when a hunt that began on lawful land carries dogs onto land where hunting is prohibited, the hunter may go retrieve them but may not carry firearms or bows and arrows on their person or hunt any game while doing so.

Common questions

Q: My crops are being damaged by a bear. Can I shoot it?
A: Not on your own initiative. Under the law as it stood in 2013, you had to report the damage to DGIF and the Director (or his designee) had to investigate and issue a written § 29.1-529 authorization before anyone could lawfully kill the bear. Killing a bear without that authorization was a Class 1 misdemeanor under § 29.1-530.2. Verify the current procedure and reporting requirements with the state wildlife agency before acting.

Q: If DGIF issues me a kill permit, can it tell me I cannot use dogs to find the bear?
A: According to this opinion, no, where dog use is otherwise lawful in that jurisdiction. § 29.1-529 lists the conditions the Director can attach to the permit (number, duration, hours), and dog use is not among them. The Board's regulation at 4 Va. Admin. Code § 15-50-110 separately bans dog use for bear hunting in specific listed counties and seasons; if your county is on that list, the regulation, not the permit, controls.

Q: What about hunting dogs that wander onto a neighbor's land?
A: § 18.2-136 already covers that. You can go onto the neighbor's land to retrieve the dogs, but you must be unarmed and may not hunt while there. The AG noted this statute applies to kill-permit hunters the same as to anyone else.

Q: Does this opinion change the rules about hunting seasons or bag limits?
A: No. The Board still sets seasons and limits for regular bear hunting under §§ 29.1-103(11), 29.1-501, and 29.1-506. § 29.1-529 is a separate, narrower track for property-damage situations and operates regardless of season, but only on the land where the damage occurred and only under written authorization.

Q: Can DGIF require nonlethal measures instead of issuing a kill permit?
A: Yes. § 29.1-529 explicitly allowed the Director to authorize nonlethal control measures within a reasonable period instead of lethal action.

Citations

Statutes: § 29.1-521(A)(1), § 29.1-530.2, § 29.1-529, § 29.1-506, § 29.1-103(11) and (12), § 29.1-501(A), § 29.1-516.1, § 18.2-136, § 2.2-505. Regulations: 4 Va. Admin. Code §§ 15-50-11 through 15-50-120, and § 15-50-110 specifically. Cases applied to construct the statutory framework: GEICO v. Hall, 260 Va. 349, 533 S.E.2d 615 (2000) (quoting Turner v. Wexler, 244 Va. 124, 418 S.E.2d 886 (1992)) for expressio unius; Alston v. Commonwealth, 274 Va. 759, 652 S.E.2d 456 (2007) (quoting Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)) for the rule that statutes on the same subject must be construed together; Barr v. Town & Country Props., Inc., 240 Va. 292, 396 S.E.2d 672 (1990) (quoting Va. Nat'l Bank v. Harris, 220 Va. 336, 257 S.E.2d 867 (1979)) for the rule that the more specific statute prevails over the more general when they conflict.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-101_Beasley.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

April 12, 2013

The Honorable Robert B. Beasley, Jr.
Commonwealth's Attorney, County of Powhatan
3801 Marion Harland Drive
Powhatan, Virginia 23139

Dear Mr. Beasley:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the Executive Director of the Virginia Department of Game and Inland Fisheries ("DGIF") or his designee, once he has issued a "kill permit" pursuant to § 29.1-529 for the taking of a bear, may then restrict that authorization so as to prohibit the use of dogs in hunting the bear.

Response

It is my opinion that the Executive Director of DGIF or his designee, once he has issued a "kill permit" pursuant to § 29.1-529 for the taking of a bear, may not restrict that authorization so as to prohibit the use of dogs in hunting the bear.

Background

You relate that one of your constituents keeps bees that he rents to commercial farmers for use in pollination of crops. You further note that moving the bee hives to a farm is a substantial and expensive undertaking, and that on three occasions this year a bear has destroyed a number of the beekeeper's hives that he was renting to a farmer in Cumberland County, Virginia, with resultant damage totaling approximately $4,500. Each time the hives were destroyed, the DGIF Director issued a short-term authorization (also known as a "kill permit") to kill the bear pursuant to § 29.1-529, but each time the authorizations expired before the bear was located. You state that the beekeeper has requested permission from DGIF to use hunting dogs to locate the bear, but DGIF has denied his request. You further assert that DGIF has expressed some concern that, if dogs are used to hunt pursuant to a "kill permit," they could go onto adjacent property where the "kill permit" has no effect.

Applicable Law and Discussion

Unless otherwise specifically authorized by law, it is unlawful in Virginia "[t]o hunt, trap, take, capture, kill, attempt to take, capture or kill, ... by any means whatever, ... at any time or in any manner, any wild bird or wild animal ...."[1] More particularly, "[a]ny person who kills or attempts to kill a bear in violation of any provision of [Virginia's wildlife and gaming laws] or a regulation thereunder shall be guilty of a Class 1 misdemeanor."[2] Nonetheless, Virginia law expressly allows, with an appropriate permit, the killing of a bear in certain situations, including whenever "... bear are damaging fruit trees, crops, livestock or personal property utilized for commercial agricultural production in the Commonwealth ...."[3] This provision would apply to the protection of bee keeping operations from bear damage.

Regulations issued by the Board of Game and Inland Fisheries ("BGIF")[4] restrict the use of dogs in hunting bear in certain jurisdictions.[5] Cumberland county is not among the areas subject to such restrictions. Although the Board has broad power regarding wildlife conservation,[6] including broad authority to promulgate regulations related to hunting,[7] and may confer upon the Director such power as it possesses,[8] the authority of the Director or his designee to authorize the killing of a bear upon finding the bear responsible for any qualifying damage is governed by § 29.1-529.[9] The statute is comprehensive; it enumerates the persons to whom the Director may issue a permit; grants the Director discretion to limit the permit by restricting the number of animals to be killed, the effective duration of the authorization, or the hours during which the authorization is limited or prohibited.[10] The statute further provides that the Director may authorize nonlethal control measures rather than authorizing the killing of a bear, provided that such measures occur within a reasonable period of time.[11] Although the statute sets forth all of these specifics, it does not prohibit the use of dogs when hunting bears pursuant to such an authorization, nor does it provide express or implied authority to the Director to prohibit hunting with dogs.[12]

Moreover, "[i]t is a cardinal rule of construction that statutes dealing with a specific subject must be construed together in order to arrive at the object sought to be accomplished[,]"[13] and "established principles of statutory construction require that 'when one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails.'"[14] Thus, although bear hunting in general is subject to the Board's regular permitting process, § 29.1-529 provides a specialized scheme to allow for protection of property damaged by bear. While the license is restricted to the particular property, a permit issued under § 29.1-529 provides limited authorization to hunt bear irrespective of season. Because this scheme does not provide for the Director's discretion in conditioning any such permit on not using dogs, I conclude that the Director does not have the authority to prohibit their use when they are otherwise permitted for hunting in that jurisdiction.

Conclusion

Accordingly, it is my opinion that the Executive Director of DGIF or his designee, once he has issued a "kill permit" pursuant to § 29.1-529 for the taking of a bear, may not restrict that authorization so as to prohibit the use of dogs in hunting the bear.[15]

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] Va. Code Ann. § 29.1-521(A)(1) (2011).

[2] Section 29.1-530.2 (2011).

[3] Section 29.1-529(A) (Supp. 2012).

[4] Section 29.1-506 authorizes the Board of Game and Inland Fisheries ("BGIF") to adopt regulations prescribing seasons and bag limits for hunting, fishing or otherwise taking wild birds, animals and fish. The regulations specifically concerning bear hunting are set forth in Chapter 50 of the BGIF regulations. See 4 Va. Admin. Code §§ 15-50-11 to 15-50-120.

[5] 4 Va. Admin. Code § 15-50-110 provides:
A. It shall be unlawful to use dogs for the hunting of bear during the open season for hunting deer in the counties west of the Blue Ridge Mountains and in the counties of Amherst (west of U.S. Route 29), Bedford, and Nelson (west of Route 151); and within the boundaries of the national forests, except that tracking dogs as defined in § 29.1-516.1 of the Code of Virginia may be used.
B. It shall be unlawful to use dogs for the hunting of bear during the first 12 hunting days of the open season for hunting deer in the counties of Greene and Madison, except that tracking dogs as defined in § 29.1-516.1 of the Code of Virginia may be used.
C. It shall be unlawful to use dogs for the hunting of bear in the counties of Campbell (west of Norfolk Southern Railroad), Carroll (east of the New River), Fairfax, Floyd, Franklin, Grayson (east of the New River), Henry, Loudoun, Montgomery (south of Interstate 81), Patrick, Pittsylvania (west of Norfolk Southern Railroad), Pulaski (south of Interstate 81), Roanoke (south of Interstate 81), Wythe (southeast of the New River or that part bounded by Route 21 on the west, Interstate 81 on the north, the county line on the east, the New River on the southeast and Cripple Creek on the south); in the city of Lynchburg; and on Amelia, Chester F. Phelps, G. Richard Thompson, and Pettigrew wildlife management areas, except that tracking dogs as defined in § 29.1-516.1 of the Code of Virginia may be used.

Section 29.1-516.1 expressly provides that "[t]racking dogs maintained and controlled on a lead may be used to find a wounded or dead bear or deer statewide [within certain seasons], provided that those who are involved in the retrieval effort have permission to hunt on or to access the land being searched and do not have any weapons in their possession."

[6] Section 29.1-103(11) (2011).

[7] Section 29.1-501(A) (2011).

[8] Section 29.1-103(12).

[9] More specifically, § 29.1-529 requires the DGIF Director or his designee to investigate whenever a landowner or lessee reports to him that deer, elk or bear are damaging fruit trees, crops, livestock or personal property used for commercial agricultural production in the Commonwealth; and if, after investigation, he finds that deer or bear are responsible for the damage, he "shall authorize in writing the owner, lessee or any other person designated by the Director or his designee to kill such deer or bear when they are found upon the land upon which the damages occurred."

[10] Id.

[11] Id.

[12] The maxim expressio unius est exclusio alterius applies here, which "'provides that mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute.'" GEICO v. Hall, 260 Va. 349, 355, 533 S.E.2d 615, 617 (2000) (quoting Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992)).

[13] Alston v. Commonwealth, 274 Va. 759, 769, 652 S.E.2d 456, 462 (2007) (quoting Prillaman v. Commonwealth, 199 Va. 401, 406, 100 S.E.2d 4, 8 (1957)).

[14] Barr v. Town & Country Props., Inc., 240 Va. 292, 294-95, 396 S.E.2d 672, 674 (1990) (quoting Va. Nat'l Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979)).

[15] I note that, in addition to the requirements of the Commonwealth's wildlife laws, bear hunters are subject to § 18.2-136, which provides that when their chase begins on other lands, they may go upon prohibited lands to retrieve their dogs but may not carry firearms or bows and arrows on their persons or hunt any game while there. That statute does not exclude persons hunting bear pursuant to a "kill permit" and, therefore, would apply to those hunters as much as to bear hunters hunting during the bear season pursuant to a hunting license. Thus, should the dogs used in hunting pursuant to a "kill permit" stray to adjacent properties, then § 18.2-136 would allow the hunter to retrieve the dogs as long as he is unarmed and does not hunt while he is on the adjacent properties.