NJ Fined because of physical location

[chlsbrns]

NJ
Hello all!
I am asking for advice about State Agency Rules/Regulations. No one at the agency will admit or verify or change or repeal an obvious conflict between a State and a Regulation.

The Statute says...

23:4-24.2. 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."

The Regulation says...

12. 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.

If a hunter is hunting from the ground, has a weapon (loaded or not) and is within 300' of bait that he knows or doesn't know is there he is not violating the Statute but is violating the Regulation.

If a hunter parks his vehicle within 300' of bait that he knows or doesn't know is there and has a weapon (loaded or not) he is not violating the Statute but is violating the Regulation.

If a Hunter walks up a road with a weapon (loaded or not) and walks within 300' of bait that he knows or doesn't know is there he is not violating the Statute but is violating the Regulation.

I have contacted game wardens, the Fish and Game Counsel who makes the rules and the Fish and Game attorney. None will acknowledge the conflict between the law and regulation, all say that the regulation is legal.

How can a person be fined and possible lose their right to hunt when they are not violating a law? I'm just an ordinary guy and am aware that a law trumps a Regulation that is contrary to the law but it is apparent that those who make and enforce regulations do not know that a law trumps a Regulation.

Am I wrong?

 

[Taxing Matters]

Am I wrong?

You are not making it clear what the conflict is that you see. It might help for you to describe what you did for which apparently Fish and Wildlife cited you. Also, what you quoted about the regulations is not the text of the regulation. It appears to be from some guide that attempts to explain what would violate the regulations and that guide may not be accurate. Where did you see that info?

The actual regulation text on hunting baited birds is the following:

(l) A person shall not take or attempt to take migratory game birds:...
9. By the aid of baiting (placing feed seeds such as corn, wheat, salt, or other feed to constitute a lure or enticement) in or over any baited area. The prohibition contained in this paragraph does not apply to crows (Corvus spp.). A baited area is considered to be baited for 10 days after the removal of the bait;....

​

N.J. Admin. Code § 7:25-5.13(l)(9). As you can see, the regulation text is pretty broad, barring any taking or attempt to take any migratory game bird other than crows with the aid of bait. So if you were attempting to take a turkey in a baited area, even if not standing in a tree or in a structure, the regulation is violated even though the statute is not.

That is not a conflict, however, as the statute you cited (section 23:4-24.2) does not say it is permitted to take turkeys in baited areas other if you aren't standing in a tree or structure. It simply says that if you are standing in a tree or structure within 300' of baited area then you violate the statute. If you weren't doing that, then that particular state statute is not violated but some other law might be. So the issue here may not be a conflict with that statute, but rather what provision of the state law imposes a penalty for whatever it is that you were alleged to have done.

It's worth pointing out that federal law, too, prohibits hunting migratory birds by baiting, and the regulation that I quoted effectively is incorporating that rule, as the regulation in the references section cites to the federal one. The federal regulation says that among other things it is illegal to take migratory birds "By the aid of baiting, or on or over any baited area, where a person knows or reasonably should know that the area is or has been baited." 50 CFR § 20.21(i).

 

[justalayman]

You are not making it clear what the conflict is that you see. It might help for you to describe what you did for which apparently Fish and Wildlife cited you. Also, what you quoted about the regulations is not the text of the regulation. It appears to be from some guide that attempts to explain what would violate the regulations and that guide may not be accurate. Where did you see that info?

The actual regulation text on hunting baited birds is the following:

​

N.J. Admin. Code § 7:25-5.13(l)(9). As you can see, the regulation text is pretty broad, barring any taking or attempt to take any migratory game bird other than crows with the aid of bait. So if you were attempting to take a turkey in a baited area, even if not standing in a tree or in a structure, the regulation is violated even though the statute is not.

That is not a conflict, however, as the statute you cited (section 23:4-24.2) does not say it is permitted to take turkeys in baited areas other if you aren't standing in a tree or structure. It simply says that if you are standing in a tree or structure within 300' of baited area then you violate the statute. If you weren't doing that, then that particular state statute is not violated but some other law might be. So the issue here may not be a conflict with that statute, but rather what provision of the state law imposes a penalty for whatever it is that you were alleged to have done.

It's worth pointing out that federal law, too, prohibits hunting migratory birds by baiting, and the regulation that I quoted effectively is incorporating that rule, as the regulation in the references section cites to the federal one. The federal regulation says that among other things it is illegal to take migratory birds "By the aid of baiting, or on or over any baited area, where a person knows or reasonably should know that the area is or has been baited." 50 CFR § 20.21(i).

Not arguing your point regarding respecting both statute and regulation but as far as I know, turkeys are not migratory birds in reality nor within any rules or regulation.

 

[Taxing Matters]

Not arguing your point regarding respecting both statute and regulation but as far as I know, turkeys are not migratory birds in reality nor within any rules or regulation.

According to the U.S. Department of Agriculture, it appears you are correct, at least under federal law: "Migratory birds are essentially all wild birds found in the United States, except the house sparrow, starling, feral pigeon, and resident game birds, such as pheasant, grouse, quail, and wild turkeys." I obviously am no bird expert.

We need more info though on what the OP's problem is and exactly what the OP was said to have violated to sort out if there is any basis to support whatever citation he may have been given.

 

[justalayman]

According to the U.S. Department of Agriculture, it appears you are correct, at least under federal law: "Migratory birds are essentially all wild birds found in the United States, except the house sparrow, starling, feral pigeon, and resident game birds, such as pheasant, grouse, quail, and wild turkeys." I obviously am no bird expert.

We need more info though on what the OP's problem is and exactly what the OP was said to have violated to sort out if there is any basis to support whatever citation he may have been given.

Like I said, not disagreeing with the underlying statement. Just making the mention in case other laws or regs applies to turkeys.

 

[cbg]

I am no bird expert either, but I do live in Southeastern Massachusetts and as far as I can tell turkeys do not migrate. They make nuisances of themselves year round.

 

[chlsbrns]

You are not making it clear what the conflict is that you see. It might help for you to describe what you did for which apparently Fish and Wildlife cited you. Also, what you quoted about the regulations is not the text of the regulation. It appears to be from some guide that attempts to explain what would violate the regulations and that guide may not be accurate. Where did you see that info?

The actual regulation text on hunting baited birds is the following:

​

N.J. Admin. Code § 7:25-5.13(l)(9). As you can see, the regulation text is pretty broad, barring any taking or attempt to take any migratory game bird other than crows with the aid of bait. So if you were attempting to take a turkey in a baited area, even if not standing in a tree or in a structure, the regulation is violated even though the statute is not.

That is not a conflict, however, as the statute you cited (section 23:4-24.2) does not say it is permitted to take turkeys in baited areas other if you aren't standing in a tree or structure. It simply says that if you are standing in a tree or structure within 300' of baited area then you violate the statute. If you weren't doing that, then that particular state statute is not violated but some other law might be. So the issue here may not be a conflict with that statute, but rather what provision of the state law imposes a penalty for whatever it is that you were alleged to have done.

It's worth pointing out that federal law, too, prohibits hunting migratory birds by baiting, and the regulation that I quoted effectively is incorporating that rule, as the regulation in the references section cites to the federal one. The federal regulation says that among other things it is illegal to take migratory birds "By the aid of baiting, or on or over any baited area, where a person knows or reasonably should know that the area is or has been baited." 50 CFR § 20.21(i).

No, that regulaion is for migratory birds aka ducks geese ect a turkey is not a migratory bird. I should mention that there is also a NJ Statute that forbids baiting migratory birds ducks geese ect but there is no State Statute that forbids baiting turkeys or posessing a weapon within 300' of bait when turkey hunting from the ground.

The regulation that I posted is not from a guide it is the regulation.
N.J.A.C. 7:25-5.7(e)12

 

[Mass_Shyster]

I do not see a conflict. The law states you cannot hunt from a stand within 300 feet of bait. The regulation states you cannot hunt ANYWHERE within 300 feet of bait.

I don't know how it works in NJ, but in Massachusetts, the laws are created by the legislative branch and signed off by the executive branch. Frequently, the legislative branch will pass a law that allows the executive branch to create enforceable regulations without the need to get legislative approval.

I suspect what happened here is that after the NJ legislature created a law prohibiting hunting from stands within 300 feet of bait, they found hunters circumventing that law by hunting on the ground near the bait. The Division of Fish and Wildlife simply created a regulation prohibiting all hunting within 300 feet of bait instead of going to the legislature.

How can a person be fined and possible lose their right to hunt when they are not violating a law?

Although ignorance of the law is not an excuse, a law can be considered void for vagueness if a person of ordinary intelligence could not know that he or she was violating the law. The reason they don't make knowledge an element of the law is because anyone found hunting within 300 feet of bait will simply say "I didn't know the bait was there"

If people are being cited by over aggressive officers for walking up the road within 300 feet of bait, you should certainly bring that to the attention of your government officials. That is not (as I understand) the intent of the law/regulation.

If a hunter parks his vehicle within 300' of bait that he knows or doesn't know is there and has a weapon (loaded or not) he is not violating the Statute but is violating the Regulation.

If a Hunter walks up a road with a weapon (loaded or not) and walks within 300' of bait that he knows or doesn't know is there he is not violating the Statute but is violating the Regulation.

You shouldn't park a vehicle or walk up a road with a loaded firearm. (Hunter Ed course says to use term firearm and not weapon)

 

[chlsbrns]

I do not see a conflict. The law states you cannot hunt from a stand within 300 feet of bait. The regulation states you cannot hunt ANYWHERE within 300 feet of bait.

I don't know how it works in NJ, but in Massachusetts, the laws are created by the legislative branch and signed off by the executive branch. Frequently, the legislative branch will pass a law that allows the executive branch to create enforceable regulations without the need to get legislative approval.

I suspect what happened here is that after the NJ legislature created a law prohibiting hunting from stands within 300 feet of bait, they found hunters circumventing that law by hunting on the ground near the bait. The Division of Fish and Wildlife simply created a regulation prohibiting all hunting within 300 feet of bait instead of going to the legislature.

Although ignorance of the law is not an excuse, a law can be considered void for vagueness if a person of ordinary intelligence could not know that he or she was violating the law. The reason they don't make knowledge an element of the law is because anyone found hunting within 300 feet of bait will simply say "I didn't know the bait was there"

If people are being cited by over aggressive officers for walking up the road within 300 feet of bait, you should certainly bring that to the attention of your government officials. That is not (as I understand) the intent of the law/regulation.



You shouldn't park a vehicle or walk up a road with a loaded firearm. (Hunter Ed course says to use term firearm and not weapon)

It says posess a weapon within 300' of bait. It says game birds aka turkey. If I am on the ground with a weapon not in a tree or structure within 300' of bait I am not violating the law but am violating the regulation. Laws trump regulations. Yes? No?

 

[chlsbrns]

In NJ they have to follow the administrative procedures act. They can make regulations that enforce and implement statutes. Except for migratory birds there is no Statute that says that you can not possess a weapon within 300' of bait when on the ground.

 

[chlsbrns]

I do not see a conflict. The law states you cannot hunt from a stand within 300 feet of bait. The regulation states you cannot hunt ANYWHERE within 300 feet of bait.

I don't know how it works in NJ, but in Massachusetts, the laws are created by the legislative branch and signed off by the executive branch. Frequently, the legislative branch will pass a law that allows the executive branch to create enforceable regulations without the need to get legislative approval.

I suspect what happened here is that after the NJ legislature created a law prohibiting hunting from stands within 300 feet of bait, they found hunters circumventing that law by hunting on the ground near the bait. The Division of Fish and Wildlife simply created a regulation prohibiting all hunting within 300 feet of bait instead of going to the legislature.

Although ignorance of the law is not an excuse, a law can be considered void for vagueness if a person of ordinary intelligence could not know that he or she was violating the law. The reason they don't make knowledge an element of the law is because anyone found hunting within 300 feet of bait will simply say "I didn't know the bait was there"

If people are being cited by over aggressive officers for walking up the road within 300 feet of bait, you should certainly bring that to the attention of your government officials. That is not (as I understand) the intent of the law/regulation.



You shouldn't park a vehicle or walk up a road with a loaded firearm. (Hunter Ed course says to use term firearm and not weapon)

The wording is possess a weapon of any kind not hunt.

In NJ it is 100% legal when hunting to walk the road with a loaded firearm. You can't shoot from the road, you can't shoot across a road but If you are one inch off of the road you can shoot.

The Statute and Regulation use the word weapon. It does not specify a loaded weapon. If you process a weapon of any kind within 300' of bait and are on the groumd (not in a tree or structure) you are not violating the law when turkey hunting, deer hunting, bear hunting, squirrel hunting, rabbit hunting, ect but you are violating the Regulation if turkey hunting.

 

[chlsbrns]

I suspect what happened here is that after the NJ legislature created a law prohibiting hunting from stands within 300 feet of bait, they found hunters circumventing that law by hunting on the ground near the bait. The Division of Fish and Wildlife simply created a regulation prohibiting all hunting within 300 feet of bait instead of going to the legislature.

You shouldn't park a vehicle or walk up a road with a loaded firearm. (Hunter Ed course says to use term firearm and not weapon)

How are you circumventing the law? The law is clear, you can not possess a weapon of any kind when in a tree or structure within 300' of bait. Legislators make laws but in this case the dept of fish and Game made a Regulation that conflicts with the law.

They did not prohibit all hunting within 300' of bait. The Regulation is specific to turkey hunting.

There is a Statute that allows the possession of a weapon within any distance of bait when deer hunting from a tree or structure.

 

[chlsbrns]

It seems that many are seeing "HUNT" when they should be seeing "have in his possession or control any firearm or other weapon of any kind"

The main question that I am asking is does a law trump a statute?

The law is made by legislators. A regulation is made by an agency and is supposed to be made to implement and enforce a law. There is no law that forbids possessing a weapon within 300' of bait when hunting turkey from the ground. There is no law that prevents possessing a weapon of any kind while hunting any game animal (except migratory birds) from the ground within 300' of bait.

 

[adjusterjack]

You're missing a point here. A regulation IS law and just as enforceable as law.

Seems to me, at this point, you are just arguing for the sake of arguing. It's not us you have to convince.

If you got cited, plead not guilty and expound your theory to the judge. Let us know how it turns out.

 

[quincy]

It seems that many are seeing "HUNT" when they should be seeing "have in his possession or control any firearm or other weapon of any kind"

The main question that I am asking is does a law trump a statute?

The law is made by legislators. A regulation is made by an agency and is supposed to be made to implement and enforce a law. There is no law that forbids possessing a weapon within 300' of bait when hunting turkey from the ground. There is no law that prevents possessing a weapon of any kind while hunting any game animal (except migratory birds) from the ground within 300' of bait.

I have not reviewed case law in New Jersey well enough to see if this 1973 New Jersey Supreme Court decision holds, but I believe it might answer your latest question, although the facts of the case are different.

https://law.justia.com/cases/new-jersey/supreme-court/1973/62-n-j-94-0.html