Does NJAC trump State Statutes?

[NJConfused]

What is the name of your state (only U.S. law)? NJ

Does NJ Administrative Code trump State Statutes? Or do Statutes trump Administrative Code?

Administrative Code Rule § 7:25-5.7 Wild turkey says:

"A person hunting turkeys shall not have in possession or control, a firearm or other weapon within 300 feet of a baited area during the turkey hunting seasons."

NJ Statute 23:4-24.2 says:

Shooting or taking game bird or animal from tree or structure within 300 feet of baited area

No person shall, except under emergency conditions authorized by the Division of Fish and Game, kill, destroy, injure, shoot, shoot at, take, wound, or attempt to take, kill, or wound a game bird or game animal, or have in his possession or control any firearm or other weapon of any kind, while elevated in a standing tree, or in a structure of any kind within 300 feet of a baited area under a penalty of $50.00 for each offense.

One says no bait within 300' the other says no bait within 300' if you are elevated or in a structure. One is a $40 fine the other is a $50. fine but my buddy was fined $250!

So which trumps the other?

Thanks!

 

[FlyingRon]

They are not in conflict. In this case, neither preempts the other. If you are hunting with a firearm on the ground within 300' of a baited area, you are in violation of the NJAC. If you're elevated in that area, you can be charged with either. Just because something isn't illegal under one law, doesn't mean it's legal under all laws.

 

[quincy]

What is the name of your state (only U.S. law)? NJ

Does NJ Administrative Code trump State Statutes? Or do Statutes trump Administrative Code?

Administrative Code Rule § 7:25-5.7 Wild turkey says:

"A person hunting turkeys shall not have in possession or control, a firearm or other weapon within 300 feet of a baited area during the turkey hunting seasons."

NJ Statute 23:4-24.2 says:

Shooting or taking game bird or animal from tree or structure within 300 feet of baited area

No person shall, except under emergency conditions authorized by the Division of Fish and Game, kill, destroy, injure, shoot, shoot at, take, wound, or attempt to take, kill, or wound a game bird or game animal, or have in his possession or control any firearm or other weapon of any kind, while elevated in a standing tree, or in a structure of any kind within 300 feet of a baited area under a penalty of $50.00 for each offense.

One says no bait within 300' the other says no bait within 300' if you are elevated or in a structure. One is a $40 fine the other is a $50. fine but my buddy was fined $250!

So which trumps the other?

Thanks!

What was he cited for?

 

[NJConfused]

Thanks flyingron

Quincy. He was less than 300 feet from bait (that he didn't know was there) while hunting turkey from a ground blind.

 

[latigo]

What is the name of your state (only U.S. law)? NJ

Does NJ Administrative Code trump State Statutes? Or do Statutes trump Administrative Code?

Administrative Code Rule § 7:25-5.7 Wild turkey says:

"A person hunting turkeys shall not have in possession or control, a firearm or other weapon within 300 feet of a baited area during the turkey hunting seasons."

NJ Statute 23:4-24.2 says:

Shooting or taking game bird or animal from tree or structure within 300 feet of baited area

No person shall, except under emergency conditions authorized by the Division of Fish and Game, kill, destroy, injure, shoot, shoot at, take, wound, or attempt to take, kill, or wound a game bird or game animal, or have in his possession or control any firearm or other weapon of any kind, while elevated in a standing tree, or in a structure of any kind within 300 feet of a baited area under a penalty of $50.00 for each offense.

One says no bait within 300' the other says no bait within 300' if you are elevated or in a structure. One is a $40 fine the other is a $50. fine but my buddy was fined $250!

So which trumps the other?

Thanks!

There is nothing incompatible between the two. One applies only to turkey hunters and the other to all game hunters "when elevated etc.".

My question is this: Is it permissible to hunt, take, shoot, etc., game birds or animals other than turkeys within 300 feet of a baited area if NOT perched in a tree or other elevated structure?

 

[quincy]

... Quincy. He was less than 300 feet from bait (that he didn't know was there) while hunting turkey from a ground blind.

What was the explanation given for the $250? Was he hunting during turkey hunting season? Was his "ground blind" a structure?

 

[NJConfused]

There is nothing incompatible between the two. One applies only to turkey hunters and the other to all game hunters "when elevated etc.".

My question is this: Is it permissible to hunt, take, shoot, etc., game birds or animals other than turkeys within 300 feet of a baited area if NOT perched in a tree or other elevated structure?

No not just turkey hunters. A turkey is defined as a game bird. The "other animals" refers to coyotes which can be shot during turkey season. Thats whats confusing. Both laws are in the game laws. One says you cant be within 300' of bait when elevated or in a structure with a weapon the other says you cant be within 300' of bait with a weapon.

 

[NJConfused]

What was the explanation given for the $250? Was he hunting during turkey hunting season? Was his "ground blind" a structure?

The $250 was for being within 300' of bait with a weapon. Im assuming that a blind would be considered a structure. The Statute in the game laws says it's a $50 fine for being within 300' while elevated or in a structure with a weapon. The Administrative code says the fine is $40. for being within 300' of bait with a weapon.

Basically both are from State Game but one says its ok to be within 300' of bait with a weapon as long as you are not elevated or in a structure and the other says its not ok to be within 300' of bait with a weapon.

 

[NJConfused]

Yes it was during turkey season.

 

[quincy]

Yes it was during turkey season.

So the ticket he received was during fall turkey season? I don't think spring season starts until late April in New Jersey, right?

 

[NJConfused]

He got it last spring.

 

[quincy]

He got it last spring.

Curious. The $250 could be justified if he were hunting without a permit, hunting in the wrong zone, or hunting out of season, because then the fines range up to $500.

At any rate, the question you asked seems to have been answered. There does not appear to be a conflict, just a difference in what is covered. One is specific to turkeys and the other covers game birds or game animals.

 

[NJConfused]

He had no other violations.

I still think something is wrong. Administrative Law is:

"Administrative law is the body of law created by the agencies and departments of the government, which carry out the laws passed by Congress or a state legislature"
http://hirealawyer.findlaw.com/choosing-the-right-lawyer/administrative-law.html

The law passed by the NJ State Legislature is that you can not be within 300' of bait with a weapon if elevated or in a structure. My buddy was in violation even though he did not know that the bait was there. The Administrative law is actually a rule or regulation. Shouldn't it reflect the laws passed by our Legislators?

 

[NJConfused]

Im thinking that Administrative law administers the Division of Fish and Game and other agencies. It allows them to set hunting season dates, zones, limits ect. I don't see how they can make rules or regulations that change laws made by the Legislature.

The State Statute forbids being elevated or in a structure with a weapon within 300' of bait. The Administrative Rule or Regulation forbids being on the ground with a weapon within 300' ot bait. Isn't that changing or creating a law that trumps State Statutes made by the Legislature?