NJ Fined because of physical location

[justalayman]

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?

It’s not a matter of laws trumping regulations since the law cited and the regulation cited do not conflict with each other. They both address different situations. The law addresses hunting from a stand near a baited area. The reg addresses carrying a firearm in the proximity of a baited area.

They do not conflict since the law doesn’t address carrying a firearm while not in a stand near a baited area.

The only issue I see is how does one know they are near a baited area in either situation. Unless the person charged with the violation is also the person who placed the bait, the hunter may have no idea there is a baited area near.

 

[chlsbrns]

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

Thank You! That case makes it clear that a law trumps a Regulation and trumps local ordinances. I am currently reading a similar Federal Case that so far is saying the same.
Thanks Again!

 

[chlsbrns]

It’s not a matter of laws trumping regulations since the law cited and the regulation cited do not conflict with each other. They both address different situations. The law addresses hunting from a stand near a baited area. The reg addresses carrying a firearm in the proximity of a baited area.

They do not conflict since the law doesn’t address carrying a firearm while not in a stand near a baited area.

The only issue I see is how does one know they are near a baited area in either situation. Unless the person charged with the violation is also the person who placed the bait, the hunter may have no idea there is a baited area near.

Read my first post again. The Regulation conflicts with the law. Again everyone is seeing the word hunt. Both the law and regulation say "have in possession or control, a firearm or other weapon" it's a clear conflict.

It is not a violation of the law to "have in possession or control, a firearm or other weapon" when hunting a game bird aka turkey from the ground within 300' of bait. It is a violation of the Regulation to "have in possession or control, a firearm or other weapon" within 300' of bait when hunting turkey from the ground.

It's a clear conflict.

 

[chlsbrns]

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.

I found this from a Federal Court Case.

"An administrative agency can be considered to exceed power conferred to it by the legislature when a rule created by the agency is against the legislative intent of the law. When the rule made conflicts with the statute made by the legislature, the rule will not be binding. The purpose of legislative delegation to administrative agencies is to create rules that are consistent with the statute made by the legislature. Therefore, any rule made by an administrative agency cannot be upheld if it conflicts with the language of the parent statute.

An agency also has no power to negate the provisions of a statute. Rules made by the agency should not be contradicting the law created by the legislature. If a rule is conflicting with a statute, the statute will prevail. The rule will be set as void to the extend it is in conflict with the enabling statute.[ii]"

This Federal Case answers my question. A regulation that conflicts with a Statute is invalid.

Also, I did not get cited. I was hunting from the ground and was 1200' from bait that I did not know was there. I walked out with the warden and came within 300' of the baited area that I did not know was there. I unloaded when the warden came. When we were walking out the warden said that I could be fined because at that point I was within 300' of the baited area and had a weapon. It didn't matter that it was unloaded. I thought that was ridiculous and read all of the fish and game laws, the administrative regulations and the administrative procedures act. That's when I noticed the conflict between the law and regulation. What wasn't specified was if a law trumps a Regulation.

 

[justalayman]

Read my first post again. The Regulation conflicts with the law. Again everyone is seeing the word hunt. Both the law and regulation say "have in possession or control, a firearm or other weapon" it's a clear conflict.

It is not a violation of the law to "have in possession or control, a firearm or other weapon" when hunting a game bird aka turkey from the ground within 300' of bait. It is a violation of the Regulation to "have in possession or control, a firearm or other weapon" within 300' of bait when hunting turkey from the ground.

It's a clear conflict.

No, the regulation does not conflict with the law. I’m sorry that you can’t understand that but that’s on you.

The law and the regulation speak to two different issues and neither conflicts with the other. For some reason you are reading the law that if you aren’t in a stand within 300 feet of a baited area, it’s legal to do anything else near a baited area. That is not what the law states nor does it attempt to.



And my post used the term hunt where applicable and carrying a firearm where it was applicable.

 

[chlsbrns]

No, the regulation does not conflict with the law. I’m sorry that you can’t understand that but that’s on you.

The law and the regulation speak to two different issues and neither conflicts with the other. For some reason you are reading the law that if you aren’t in a stand within 300 feet of a baited area, it’s legal to do anything else near a baited area. That is not what the law states nor does it attempt to.



And my post used the term hunt where applicable and carrying a firearm where it was applicable.

The Statute/Law...

"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."

If I am sitting on a pile of corn on the ground with a weapon turkey hunting am I violating the law? No!

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 I am sitting on a pile of corn on the ground with a weapon turkey hunting am I violating the Regulation? Yes!

These is also a requirement that regulations are made to implement and enforce Statutes/ Laws. There is no law that disallows having a weapon and/or hunting turkeys from the ground within 300' of bait. There is a law that disallows having a weapon and/or hunting turkeys from a tree or structure when within 300' of bait.

 

[justalayman]

Read my first post again. The Regulation conflicts with the law. Again everyone is seeing the word hunt. Both the law and regulation say "have in possession or control, a firearm or other weapon" it's a clear conflict.

It is not a violation of the law to "have in possession or control, a firearm or other weapon" when hunting a game bird aka turkey from the ground within 300' of bait. It is a violation of the Regulation to "have in possession or control, a firearm or other weapon" within 300' of bait when hunting turkey from the ground.

It's a clear conflict.

One last post tryi;g to explain why there is no conflict


Both the law and the reg are restrictive. If the law was permissive (such as stating it is lawful to have a firearm within 300 feet of a baited area as long as you are not in a tree stand), your argument would be correct. As it stands, both the law and the reg prohibit certain activity. Neither the law or the reg is granting permission for some action while the other is restricting it. That means they do not conflict with each other.


It’s really simple so I’ll put it into simpler temrs

If you have a law that says you can’t wear hats on Sunday and a regulation that says you can’t wear hats anytime, there is no conflict. If you violate the law you can be cited under the law. If you violate the reg you can be cited under the reg. On Sunday you could be cited under the reg or the law. On every other day you could only be cited under the reg. The law is not giving you the right to wear a hat Monday through Saturday. It doesn’t address those days at all.

In your case, if you are in a tree and possess a firearm and are within 300 feet of a baited area, you could be cited under the law or the reg. If you are not in a tree but are in possession of a firearm and are within 300 feet of a baited area, you couldn’t be charged under the law because the law doesn’t prohibit such action but you could be cited under the reg because it does prohibit the action. The law does not give you the right to possess a firearm within 300 feet of a baited area. It simply doesn’t address it at all.

 

[quincy]

The regulation (as worded) seems to be one that is ripe for challenging.

 

[justalayman]

The regulation (as worded) seems to be one that is ripe for challenging.

Possibly but not based on it conflicting with the law. Heck, the law might be challenged on the same basis presuming you are thinking the reg is vague since a person may not be aware of a baited area. That is why I wrote previously that I thought that vagueness was a problem.

 

[chlsbrns]

One last post tryi;g to explain why there is no conflict


Both the law and the reg are restrictive. If the law was permissive (such as stating it is lawful to have a firearm within 300 feet of a baited area as long as you are not in a tree stand), your argument would be correct. As it stands, both the law and the reg prohibit certain activity. Neither the law or the reg is granting permission for some action while the other is restricting it. That means they do not conflict with each other.


It’s really simple so I’ll put it into simpler temrs

If you have a law that says you can’t wear hats on Sunday and a regulation that says you can’t wear hats anytime, there is no conflict. If you violate the law you can be cited under the law. If you violate the reg you can be cited under the reg. On Sunday you could be cited under the reg or the law. On every other day you could only be cited under the reg. The law is not giving you the right to wear a hat Monday through Saturday. It doesn’t address those days at all.

In your case, if you are in a tree and possess a firearm and are within 300 feet of a baited area, you could be cited under the law or the reg. If you are not in a tree but are in possession of a firearm and are within 300 feet of a baited area, you couldn’t be charged under the law because the law doesn’t prohibit such action but you could be cited under the reg because it does prohibit the action. The law does not give you the right to possess a firearm within 300 feet of a baited area. It simply doesn’t address it at all.

Yes the law is restrictive and does not restrict from possessing a weapon when hunting game birds and game animals from the ground when within 300' of bait..

As I've said previously in a different way and numerous times. A regulation must be backed up by a Statute. A regulation should implement a Statute. A regulation should enforce a Statute. There is no Statute that disallows possessing a weapon within 300' of a baited area when hunting game birds and game animals from the ground. There is a Statute that disallows possessing a weapon within 300' of a baited area when hunting game birds and game animals if you are in a tree or structure.

 

[chlsbrns]

The regulation (as worded) seems to be one that is ripe for challenging.

Yes I agree! The common way to hunt turkey is to use a locator call. A locator is normally used just before sunrise. Its dark out! A locator call makes a male turkey gobble from the roost. Turkeys are known to roost near food sources. So a hunter locates a gobbler in the dark, sets up and tries to call the Tom into range. How is a hunter supposed to know that someone else baited the area? That he is hunting within 300' of bait? The hunter shoots, a game warden is close, comes and finds bait and the hunter is fined. You are violating the Regulation by your location.

 

[Taxing Matters]

Read my first post again. The Regulation conflicts with the law. Again everyone is seeing the word hunt. Both the law and regulation say "have in possession or control, a firearm or other weapon" it's a clear conflict.

It is not a violation of the law to "have in possession or control, a firearm or other weapon" when hunting a game bird aka turkey from the ground within 300' of bait. It is a violation of the Regulation to "have in possession or control, a firearm or other weapon" within 300' of bait when hunting turkey from the ground.

It's a clear conflict.

It's not a conflict because the regulation does not contradict the statute. The statute does not give you any rights; it simply prohibits you from taking or attempting to take a turkey "while elevated in a standing tree, or in a structure of any kind within 300 feet of a baited area." That's it. The law does not say you have a positive right to take the turkey while on the ground. It simply prohibits one way of taking or attempting to take the turkey. Another law may prohibit you from doing that while standing on the ground and that would not conflict because it does not contradict the first statute. It simply covers a different situation.

Rather, the issue with the regulation is whether the agency has the power to impose any punishment for your violation of the regulation. Agencies don't inherently have the power to do that on their own. They must be given that power by the legislature. In other words, the legislature needed to pass a law that says that the agency may adopt rules on this and provide what the penalty is for violating those agency rules. NJ may have a statute that gives the agency here that power. I didn't go looking for it. If it doesn't, then the state cannot punish you for violating the regulation. But if there is such a law, then I don't see you avoiding the consequences of violating the regulation by arguing there is a conflict.

 

[chlsbrns]

It's not a conflict because the regulation does not contradict the statute. The statute does not give you any rights; it simply prohibits you from taking or attempting to take a turkey "while elevated in a standing tree, or in a structure of any kind within 300 feet of a baited area." That's it. The law does not say you have a positive right to take the turkey while on the ground. It simply prohibits one way of taking or attempting to take the turkey. Another law may prohibit you from doing that while standing on the ground and that would not conflict because it does not contradict the first statute. It simply covers a different situation.

Rather, the issue with the regulation is whether the agency has the power to impose any punishment for your violation of the regulation. Agencies don't inherently have the power to do that on their own. They must be given that power by the legislature. In other words, the legislature needed to pass a law that says that the agency may adopt rules on this and provide what the penalty is for violating those agency rules. NJ may have a statute that gives the agency here that power. I didn't go looking for it. If it doesn't, then the state cannot punish you for violating the regulation. But if there is such a law, then I don't see you avoiding the consequences of violating the regulation by arguing there is a conflict.

I disagree with your first paragraph for reasons already stated.

Your second paragraph helps to make my point! It is specifically states in statutes that the legislative statutes set amounts for fines for violations and that the Fish and Game Counsel can not set fine amounts. There is no Statute to attach a fine to. There is no Statute that says you can not possess a weapon within 300' of bait when hunting from the ground. And again there is a Statute that prohibits possessing a weapon within 300' of bait when in a tree or structure and there is a fine amount specified for the violation.

 

[cbg]

Show us where it says that you have the right to take a turkey while on the ground.

 

[justalayman]

I disagree with your first paragraph for reasons already stated.

Your second paragraph helps to make my point! It is specifically states in statutes that the legislative statutes set amounts for fines for violations and that the Fish and Game Counsel can not set fine amounts. There is no Statute to attach a fine to. There is no Statute that says you can not possess a weapon within 300' of bait when hunting from the ground. And again there is a Statute that prohibits possessing a weapon within 300' of bait when in a tree or structure and there is a fine amount specified for the violation.

Then simply put:

You are wrong

Yes the law is restrictive and does not restrict from possessing a weapon when hunting game birds and game animals from the ground when within 300' of bait..

Correct but since the law does not give you a right to possess a firearm in the location, they don’t conflict.

As I've said previously in a different way and numerous times. A regulation must be backed up by a Statute. A regulation should implement a Statute. A regulation should enforce a Statute. There is no Statute that disallows possessing a weapon within 300' of a baited area when hunting game birds and game animals from the ground. There is a Statute that disallows possessing a weapon within 300' of a baited area when hunting game birds and game animals if you are in a tree or structure.

Should or must. Unless it’s must (and you need to provide proof of that), should is not must.