Experimental moose hunting season

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARD S. COHEN ATTORNEY GENERAL STATE OF MAINE DEPARTMENT OF THE ATTORNEY GENERAL AUGUSTA. l\1,\INE 04333 STEPHEN L. D1Al40;-(0 JOHN S. GLEi\SO~ JOHN M. R. PATERSON ROllERT J. STOLT DEPUTY ATTORNEYS GENERAL August 14, 1979 Glenn H. Manuel CoITLmissioner, Inland Fisheries and Wildlife State House Augusta, Maine - 04333 Dear commissioner .Manuel: I am writing in response to the inquiry of May 23, 1979 of Acting Comm'issioner J. William Peppard of your Department, asking various questions with regard to the recently enacted statute establishi_ng an experimental moose hunting season in Maine in 1980 (the 11.Moose Act"). Thi~ Act, originally passed as Chapter 56 of the Laws of Maine of 1979, was reenacted as part of a statute which incorporated all 19'79 statutes relat- ing to your Department into the recodification of the Depart- ment's laws, which was also passed at the 1979 session. Laws of Maine of 1979, ch. 543, § 50 (1979). This legislation becomes effective on January 1, 1980, over eight months in advance of the experimental season. Our answers to ~r~ Peppard's questions are as follows: I. Power of Commissioner to Establish Subdistricts (Questions 1, 4 and 5) The Department asks whether the Commissioner has the authority to establish subdistricts within the general moose hunting district described in the Act, and if so, whether he may close such a subdistrict to hunting or direct a hunter to hunt in only one subdistrict. Our answer is that it is doubt- ful whether the Commissioner has been given this authority, and that it is therefore difficult to answer the remaining two questions. Section 7463(3) of the Act provides as follows: "There shall be one moose hunting district described as follows: All of the State north of the Canadian Glenn H. Manuel Commissioner, Inland Fisheries and Wildlife Page 2 August 14, 1979 Pacific Railroad mainline running from Vanceboro through Brownville, to the Canadian border, except for those areas of the State closed to hunting in chapter 713, subchapter I [relating to Wildlife Sanctuaries and Wildlife Management Areas]" (em- p6asis added). 12 M.R.S.A. § 7463(3). In addition, Section 7463(8) provides: "If, during the open season· on moose, it shall be the opinion of the Commissioner that more moose are being killed in the district indicated than is in the best interest of the species, he shall have the authority to terminate that season at once~" (emphasis added). 12 M.R.S.A. § 7463(8). Read liter~lly, these ~rbvisions, whic~ are the only ones in the Act relating to the establishment of a moose hunting dis- trict or districts, appear to contemplate a single moose hunting district. There is.no authority expressly delegated to the Commissioner to create subdistricts, and an examination of the legislative history of the Act reveals no hint of any intention to do so. Indeed, one of the three bills concerning a moose hunting season which was before the L~gislature this year contained a provision authorizing the Commissioner to "vrohibit or limit hunting of moose in any county or district [under certain conditions]", Legislative Document No. 99, 109th Legis., 1st Sess., § 2355-F(3) (1979). The failure of this provision to pass suggests a legislative intent not to permit the creation of subdistricts. On the other hand, Section 7463(9) of the Act authorizes the Commissioner to make "all other rules and regulations which he deems necessary for the protection of the moose resource." This section might well be read to authorize the creation of subdistricts by regulation when the moose population in certain areas of the State is endangered. However, such regulatory authority could not be exercised in a manner which is inconsis- tent with the express terms of the Act. See the provision of the .Maine Administrative Procedure Act empowering the Court to invalidate any rule which it finds "exceeds the rule-making authority of the agency." 5 M.R.S.A. § 8058(1). Thus, if the Glenn H. Manuel Commissioner, Inland Fisheries and Wildlife Page 3 August 14, 1979 Legislature were determined to have considered and rejected th~ subdistrict concept, the Commissioner could not be found to have been simultaneously·granted such authority by Section 7463(9). In view of this uncertainty, we are hesitant to advise that the Commissioner has been gr~nted the authority in ques- tion. Thus, we would suggest that, rather than implementing a subdistrict program, the Commissioner might better take advantage of the fact that the Legisl~ture will be convening before the experimental season and request a clarification. II. Applicati6n Requiremen~s (Questions 2 and 3) 'I'he Department" asks whether there is any statutory limitation on the number of applications which a Maine resident may make for a moose permit and whether a subpermittee must.be a Maine resident. Our answers are that the Legislature. does not appear to have imposed a limit on the number of applications which may be made, but that it did intend that a subpermittee could be a nonresident. • . t• Section 7463(4) of the Act, which governs the issuance of permits, is completely silent as to whether a holder of a Maine resident hunting license may make more •,than one application for a moose hunting permit. Nor does the legislative history provide any guidance.~/ Under these circumstances, we can see no basis from which to infer that the Legislature intended to limit the number of applications a particular person may make. This view is supported by the fact that the Legislature appears to have contemplated that a permit might be transferred by its holder, since a provision of one of the moose bills before it, attempting to prohibit the transferability of permits once the season started, failed of passage. Legislative Document No. 83, 109th t,egis., 1st Sess., § 2355-F (4) (1979). Therefore, since the Legislature apparently contemplated that .permits may be transferred at any time, it would seem likely that it also contemplated that a person could make more than one application, since he might succeed in In the debate on the Act on the floor of the Senate, two Senators (one in favor, one opposed) mentioned that there was no limit on the number of people who might apply, but seem not to have addressed the question of whether a parti- cular person might apply more than once. See Remarks of Senators Conley and Usher, Legislative Record, 109th Legis., 1st Sess.·, 506, 507 (1979). Moreover, if these observations are taken to address the question, the conclusions to be drawn are consistent with this opinion. .( ) Glenn H. Manuel commissioner, Inland Fisheries and Wildlife Page 4 August 14, 1979 obtaining more than one permit and could then transfer the excess. However, we would again suggest that in view of the doubtful natrire of this response, the Commissioner would be well advised to seek a clarification at the n~xt legislative session before entertaining any applications. On the question of whether a subpermittee must be a Maine resident, the legislative intention is somewhat more clear. The Act as passed provides that although the applicant ''shall hold a valid Maine resident hunting license'', the subpermittee is re- quired to possess simply "a valid Maine hunting license. 11 12 M.R.S.A. § 7463(4). (emphasis added). The omission of the term 11 resident 11 from the second phrase is clearly significant, parti- cularly when it is observed that the term was included in both phrases in one of the earlier versions of the Act. Legislative Document No. 83, 109th Legis., 1st Sess., § 2355-F(4) (1979). The Legislature thus appears to have intended that subpermittees need not be Maine residents. III. Use of Application and Permit Fees (Question 9) The Department asks whether law enforcement expenses may be counted against the requirement that at least one half of the moose application and permit fees, or $85,000, whichever is smaller, be used for "moose research and manage~ent" 12 .M.R.S.A. § 7463(9}. This provision was added to the bill.reported out of committee by a Senate floor amendment, Senate Document No. 32, 109th Legis., 1st Sess. (1979), but there is no indication anywhere in the record of the intended scope of the term "moose research and management." We think, however, that a fair reading of the term would exclude law enforcement activities, since the distinction between manage- ment and enforcement in the wildlife context is one which is widely understood, and is reflected in the Department's organizational structure, which distinguishes between enforcement personnel (Warden Service) and wildlife management staff (Wildlife Research Division). The Department may, therefore, spend at least one half of the proceeds of the moose applications and permits on defraying enforcement costs, but may not count this expenditure against the required allocation to moose research and management. IV. Scope of Subpermittee Activity (Question 7) The Department asks guidance as to the scope of the term "accompany" in the .:r.;-equirement that. the subpermittee always accompany the permittee when hunting moose. 12 M.R.S.A. § 7463(4). .. ..,,, Glenn H. Manuel commissioner, Inland Fisheries and Wildlife Page 5 August 14, 1979 This provision was included in all three original bills before the Legislature and was not the subject of any recorded discussion in the legislative process·.· Legislative Docwnents Nos. 28, 83, 99, 109th Legis., 1st Sess. (1979). In the absence of such discussion, and in the absence 0£ any specific facts, it is difficult for us to respond to such a general question. The most we can say at the moment is that the provision appears to require that a suboer- mittee must certainly be hunting at the same time as the permiitee, and reasonably within the same space .. It would not appear necessary that the two be in sight of one another at all times, so long as their activities manifest a common hunting purpose. This is the sort of problem, however, that can only be resolved in the context of a specific set of facts. V. Scope of Commissioner's Rule-Making Activity (Question 8) The Department inquires generally into the scope of the Commis- sioner's powers to "make all other rules and regulations which he deems necessar~ for the protection ofthe moose resource." 12 M.R.S.A. § 7463(9). Like the question discussed in the preceding section of this opinion, this inquiry can only be answered in the context of a specific factual situation. Thus, for example, in answer to the two specific questions a~ked, the Commissioner may not have the authority to close certain areas to hunting for the purpose of allowing people to watch moose in safety for the reasons set forth in Section I of this opinion, but he would have the authority to require hunter orange to be worn during the moose season since there is no statutory provision wl1ich appears to pro- hibit that. Beyond this, however, we can offer no guidance except to observe that the resolution of any particular question will turn on whether the issue has been addressed and resolved by the Legis- lature in advance. Thus, the Commissioner should take care that any rule which he promulgates is not incompatible with any provisions of the Moose Act or of Subchapter I (Hunting) of Chapter 709 of the recodification. I hope this answers your questions. Please feel free to call on me if further a~sistance is needed. RSC/d Sincerely, RICHARDS. COHEN Attorney General cc: Senator Andrew J. Redmond Representative Charles G. Dow