Some have accused me of citing court cases that are old, even though they still stand. Well the ink is still wet on this one:
Quote:
... To the extent that the Board, by adoption of a regulation that purports to amend a duly enacted statute, has sought to impose a further prerequisite upon parties to disciplinary proceedings before the Board before their appeals may be deemed perfected, the Board has done so in the absence of authority.
"It is settled law that the provisions of a statute will prevail in any case in which there is a conflict between the statute and a . . . regulation.
"`It is axiomatic that administrative rules and regulations must be consistent with the constitutional or statutory authority by which their promulgation is authorized. "A regulation . . . which operates to create a rule out of harmony with the statute, is a mere nullity." This is because an administrative board or agency is purely a creature of the legislature, and has only those powers conferred upon it by its creator.'
"An administrative agency cannot usurp legislative powers or contravene a statute."
Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So. 2d 45, 47 (Ala. 1995) (citations omitted; quoting Ex parte City of Florence, 417 So. 2d 191, 193-94 (Ala. 1982), quoting in turn Manhattan Gen. Equip. Co. v. Commissioner, 297 U.S. 129, 134 (1936))
IN RE EX PARTE CHAMBERS, Ala: Court of Civil Appeals 2013
The DCNR's new rule attempts to assume legislative powers that have not been delegated to it. There are bills currently pending before both the Alabama House and the Senate to define "affected area".
The DCNR was certainly aware that these bills had been introduced. The commissioner's action is too late. He missed his chance. He needs to butt out and leave the legislature do its job that it should have done long ago without trying to pull this scheme to write things into the law that are not there.
It is illegal to hunt with bait or to trap deer or hogs even with the commissioner's complicity. Coyotes can only be baited or trapped in compliance with laws that apply to animals classified as furbearers, and the commissioner has no lawful authority to allow doing so otherwise.
Our legislators need to take the bull by the horns and act on the bills that have currently been introduced.
Our legislators have made it clear that they will not take action unless they are prodded into doing so by hunters who are affected by all this mess. Those bills will continue to sit right there in the committees they have been referred to and they will die unless we act.
Bill in House Agriculture and Forestry Committee
HB118 Sponsor: Long Conservation and Natural Resources Department, whitetail deer, may be hunted over bait under certain conditions, Sec. 9-11-244 am'd.
Bill in Senate Agriculture, Conservation, and Forestry Committee SB88 Sponsors: Whatley, Scofield, Ward
Conservation and Natural Resources Department, whitetail deer, may be hunted over bait under certain conditions, Sec. 9-11-244 am'd.
