Aldeer.com Forums Alabama Deer Talk Serious Deer Talk Forum Definition of Area Rule

I was told straight from an active GW once, that there were certain people in the County that they were not allowed to pursue. The one that I knew of in particular was a gov't contractor and major political donor. Everyone in that part of the county knew he was literally bringing corn in for the deer/turkeys by the 18 wheeler load. When smaller landowners around him were busted, they wanted to know why he could get away with and they couldn't. That wasn't easy for the GW to answer. Now it will be. Small landowners will still get busted, while big daddy will still get a pass.

You're not the only one who will interpret the words of the rule like that.

The key to the confusion is the "rebuttable presumption" language. That means that the game warden can present evidence that you were using the bait to attract deer or hogs for hunting, even if it is more than 100 yards away, and you can be found in violation.

The commissioner's motive, according to those who have quoted him in news articles, was to exempt people who engage in ongoing supplemental feeding practices from the penalties of the baiting law.

The words of the rule do not reflect that exemption, but I'm sure the game wardens have been told not to enforce the law under certain circumstances described by the commissioner.


Bottom line:

If you can afford year round supplemental feeding, the commissioner will exempt you from the penalties of the law. If you can't, get ready to pay up if there is bait anywhere around where you hunt.

The new regulation does not apply to any species other than deer and hogs so there will be no rebuttable presumption for other game and section 9-11-244 applies. So you could not hunt turkeys in an area where a supplemental deer feeding program is in place. The area definition in 220-2.157 does not apply.

"`"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352 [357], 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903 (1983) (citations omitted). A statute challenged for vagueness must therefore be scrutinized to determine whether it provides both fair notice to the public that certain conduct is proscribed and minimal guidelines to aid officials in the enforcement of that proscription. See Kolender, supra; Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).'"
Lansdell v. State, 25 So. 3d 1169, 1175-76 (Ala. Crim. App. 2007) (quoting in Vaughn v. State, 880 So. 2d 1178, 1195 (Ala. Crim. App. 2003); further citations omitted); cf. State v. Cohen, 696 So. 2d 435, 439-440 (Fla. Dist. Ct. App. 1997) (referencing the due process requirement that criminal statutes must apprise ordinary persons of common intelligence what is prohibited).

"`"`A vague statute does not give adequate "notice of the required conduct to one who would avoid its penalties," Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S. Ct. 329, 330, 96 L. Ed. 367, 371 (195[2]), is not "sufficiently focused to forewarn of both its reach and coverage," United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S. Ct. at 598, 9 L. Ed. 2d at 566, and "may trap the innocent by not providing fair warning," Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222, 227-28 (1972).

"`"`As the United States Supreme Court observed in Winters v. New York, 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed. 840 (1948):
"`"`"There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt."'"'"
Vaughn v. State, 880 So. 2d 1178, 1194-95 (Ala. Crim. App. 2003) (quoting McCall v. State, 565 So. 2d 1163, 1165 (Ala. Crim. App. 1990); further citations omitted).

I have addressed this topic before, but I will do so once again. I am not sure how other judges around the state will interpret the regulation, but in Lowndes County we will enforce it as written. By that I mean, that no hunter will be allowed to hunt over any feed if it is within plain sight, regardless of the distance. If you can see it from the stand, you can't hunt that stand. If the feed is more than 100 yards and is over a hill or through a pine thicket or is otherwise obscured by terrain or vegetation, then you can hunt the stand.
The Court must presume that any feed not in plain view and more than 100 yards away is a feed and not bait. In order to overcome that presumption the State must prove that the hunter is using the feed site solely as a means of enticing game to travel to or from the feed site and is hunting that game trail. This is not dissimilar from the old method of enforcement wherein a hunter could be charged with hunting over bait if he were hunting a trail that lead to a bait pile hundreds of yards away. The difference is that the legal presumption is now in favor of the hunter rather than law enforcement. The simple rule is use common sense when placing feeders on your hunting property. Make sure they are out of sight of stands and are least 100 yards away. The new law allows hunters to continue to feed throughout hunting season to combat the old belief that everyone's neighbor is baiting. If everyone can feed on their property throughout the season theoretically no one has an advantage. Now I understand in the real world that may not be the case because everyone has different means and resources. Some folks will bring in feed by the truck load while others may be able to feed a bag or two if any. But like it, or not it is now the law and in this County we will enforce it as fairly and as consistently as possible.

Section 9-11-244
Taking, etc., of protected birds or animals by means of bait.

No person at any time shall take, catch, kill or attempt to take, catch or kill any bird or animal protected by law or regulation of the State of Alabama by means, aid or use, directly or indirectly, of any bait such as shelled, shucked or unshucked corn or of wheat or other grain, salt or any other feed whatsoever that has been so deposited, placed, distributed or scattered as to constitute for such birds or animals a lure, attraction or enticement to, on or over the area where such hunter or hunters are attempting to kill or take them; provided, that such birds or animals may be taken under properly shocked corn and standing crops of corn, wheat or other grain or feed and grains scattered solely as a result of normal agricultural harvesting and provided further, migratory birds may be hunted under the most recent provisions established by the U.S. Fish and Wildlife Service or regulations promulgated by the Commissioner of the Department of Conservation and Natural Resources within the limits of the federal regulations.

(Acts 1951, No. 1001, p. 1672, §1; Acts 1991, No. 91-591, p. 1093, §1.)

I have addressed this topic before, but I will do so once again. I am not sure how other judges around the state will interpret the regulation, but in Lowndes County we will enforce it as written. By that I mean, that no hunter will be allowed to hunt over any feed if it is within plain sight, regardless of the distance. If you can see it from the stand, you can't hunt that stand. If the feed is more than 100 yards and is over a hill or through a pine thicket or is otherwise obscured by terrain or vegetation, then you can hunt the stand.
The Court must presume that any feed not in plain view and more than 100 yards away is a feed and not bait. In order to overcome that presumption the State must prove that the hunter is using the feed site solely as a means of enticing game to travel to or from the feed site and is hunting that game trail. This is not dissimilar from the old method of enforcement wherein a hunter could be charged with hunting over bait if he were hunting a trail that lead to a bait pile hundreds of yards away. The difference is that the legal presumption is now in favor of the hunter rather than law enforcement. The simple rule is use common sense when placing feeders on your hunting property. Make sure they are out of sight of stands and are least 100 yards away. The new law allows hunters to continue to feed throughout hunting season to combat the old belief that everyone's neighbor is baiting. If everyone can feed on their property throughout the season theoretically no one has an advantage. Now I understand in the real world that may not be the case because everyone has different means and resources. Some folks will bring in feed by the truck load while others may be able to feed a bag or two if any. But like it, or not it is now the law and in this County we will enforce it as fairly and as consistently as possible.

The new regulation does not apply to any species other than deer and hogs so there will be no rebuttable presumption for other game and section 9-11-244 applies. So you could not hunt turkeys in an area where a supplemental deer feeding program is in place. The area definition in 220-2.157 does not apply.

/quote]

are specific guidelines on enforcement of this NEW reg coming straight out of Montgomery or left to the Districts to interpret ???

That leaves two standards for enforcement of the law in place at the same time depending on the species of game being hunted.

If a hunter hunts both deer and turkey at the same time during the fall season (where it is allowed), it would be OK to hunt deer where supplemental feeding is taking place, but he could not hunt turkeys there.

Same law ... different enforcement standards.

Is this new legislation or purely administration of the existing law? The words of the law have not changed. The affected area referred to in the statute is still not defined.