Letter to Governor (about authority of Div. State parks to regulate carry)

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On September 7, 2008, I wrote this letter to the Governor, because I feel that the Legislature must provide specific statute for anyone other than them to directly regulate firearms.

Dear Governor Jim Gibbons,



I believe that the Nevada Division of State Parks policy on firearms is in violation of state laws. The division has created a regulation making it illegal for anyone to possess a firearm in the park except for persons with concealed carry permits. Specifically, the regulation in question is NAC 407.105. It states:

1. In any park, a person shall not:…[/i][/b]

(b) Possess a firearm, unless:[/i][/b]

(1) The firearm is unloaded and inside a vehicle; or[/i][/b]

The person in possession of the firearm has a permit to carry a concealed firearm issued pursuant to the provisions of NRS 202.3653 to 202.369, inclusive, and is carrying the firearm in conformity with the terms of the permit;”[/i][/b]



This regulation is illegal, because of NRS 268.418 and NRS 244.364, which both state that:

“[/i][/b]Except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, ownership, transportation, registration and licensing of firearms and ammunition in Nevada,”[/i][/b]

I can find no specific statute which authorizes the division of state parks to regulate firearms. The Division of State parks is authorized to create regulations to enforce chapter 407 of the Nevada Revised Statutes which do not mention firearms at all. Specifically, NAC 407.105 cites NRS 407.0475 and NRS 407.065 as giving them this authority. NRS 407.0475 states:

“1. The Administrator shall adopt such regulations as he finds necessary for carrying out the provisions of this chapter and other provisions of law governing the operation of the Division. The regulations may include prohibitions and restrictions relating to activities within any of the park or recreational facilities within the jurisdiction of the Division.[/i][/b]

2. Any regulations relating to the conduct of persons within the park or recreational facilities must:[/i][/b]

(a) Be directed toward one or both of the following:[/i][/b]

(1) Prevention of damage to or misuse of the facility.[/i][/b]

(2) Promotion of the inspiration, use and enjoyment of the people of this State through the preservation and use of the facility.[/i][/b]

(b) Apply separately to each park, monument or recreational area and be designed to fit the conditions existing at that park, monument or recreational area.[/i][/b]

3. Any person whose conduct violates any regulation adopted pursuant to subsection 1, and who refuses to comply with the regulation upon request by any ranger or employee of the Division who has the powers of a peace officer pursuant to NRS 289.260, is guilty of a misdemeanor.”[/i][/b]

First of all, I wouldn’t think that prohibiting firearms in any way prevents damage or misuse of the facility, and I question how it promotes enjoyment of the parks by the people. But more importantly, NRS 268.418 and NRS 244.364 state that the only way someone other than the legislature can create regulations concerning firearms is by specific statute[/b], which I would interpret to mean a law specifically stating that they had the authority to regulate firearms. NRS 407.065 only deals with fees and the general authority of the Division to manage state parks and appoint rangers as peace officers.

I would like to stress that this regulation does not simply mimic state law on possession of firearms. It is far stricter. In Nevada, it is legal to carry a firearm without a concealed carry permit so long as it is carried openly. In fact, this is how I carry my handgun on a daily basis throughout Nevada. NAC 407.105 is a regulation which restricts possession of firearms and regulates them without any specific statute authorizing them to do so as required by state law. Please take action to stop the Division of state parks from maintaining such illegal regulations.



Thank You,

My Name

Click to expand...

Here was the reply I recieved.



Since the law says "except as provided by specific statute" I wouldn't think that would be sufficient. I don't even know if the parks adopted this regulation before or after preemption was adopted.



What do you all think, is the Division of parks allowed to have such regulations?

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I think you wrote a superb letter and I believe you are correct.

Obviously and unfortunately, the "administrators" do not agree.

I suspect you/we will need to correspond with our legislators.

Many thanks for your action. I certainly agree with your premise.

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Sounds like some research might be needed on NRS/NAC history. If the NAC restrictions were done before preemption was passed, then they should be declared null and void if they take you to court on it. If they were passed after preemption, then his argument that it was approved by the legislature has some logic behind it, but not the law. The legislature may have intended to let the NAC regulate possession, but if so, they didn't follow the correct legal procedure.

Either way, I think you're firmly in the right.

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The response appears to fit the description of a "non-answer." I see nothing to indicate that the NAC is valid. The only thing of note is a description of the legislative process followed, which does not answer the question of "authorization to regulate."

Specific statute must grant authority to regulate, and has not been provided in the response.