Open Carry In State Forests.

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Here is my e-mail to the DNR:



Greetings -

I am looking for some information about legally carrying a firearm openly in WI State Forrests. Wisconsin law forbids carrying a concealed weapon anywhere, but says nothing about carrying a firearm openly in a holster for one's protection. The state's attorney general and even Governor Doyle have confirmed the legality of carrying a handgun openly.The following laws appy to State Parks but not State Forests :

"29.089(2)
(2) Except as provided in sub. (3), no person may have in his or her possession or under his or her control a firearm on land located in state parks or state fish hatcheries unless the firearm is unloaded and enclosed within a carrying case.

29.089(3)
(3) A person may hunt deer, elk, wild turkeys, or small game in a state park , or in a portion of a state park , if the department has authorized by rule the hunting of that type of game in the state park , or in the portion of the state park , and, except as provided in s. 29.063 (5), if the person holds the approvals required under this chapter for hunting that type of game."

Wisconsin also has a premption clause which states:
"66.0409(2)
(2) Except as provided in[][] no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute."

Basically - I am looking to legally open carry in WI State Forests for my and my wife's protection without a scence being caused. I do not intend to carry in the visitors area where there would be a lot of people. I do not want to cause any panic.

Thank you for a response.

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Response from the DNR:



Thanks for writing, I have been forwarded and read your email regarding carrying a firearm openly in a state forest. The answer is not real simple. It will depend on the state forest and in what county .

Wis Admin. Code NR 45.09
(1) No person may take, catch, kill, hunt, trap or pursue any wild animal or bird, or discharge any firearm, or have in possession or under control any firearm or air gun as defined in s. 939.22, Stats., unless it is unloaded and enclosed in a carrying case, or any bow, slingshot or spring−load devise designed for shooting a projectile unless the same is unstrung or enclosed in a carrying case while in any state park, fish hatchery, or within 100 yards of any state campground, picnic area or other special use area designated by the department by posted notice.

(5) No person may possess any loaded or uncased firearm or air gun while within the exterior boundary of state−owned lands posted with department signs in Dane, Dodge, Fond du Lac, Jefferson, Juneau, Kenosha, La Crosse, Milwaukee, Outagamie, Ozaukee, Racine, Sauk, Sheboygan, Walworth, Washington, Waukesha and Winnebago counties or on state forest lands in the Kettle Moraine or Point Beach state forests, state recreation areas, state natural areas or on state trails established on abandoned railroad grades, except as follows:

(a) While engaged in hunting in accordance with the open seasons established in s. NR 10.01 on properties where hunting is authorized.

(b) At target ranges designated by the department.

(c) While engaged in dog trials under department permit.

(d) While training dogs in designated areas under department permit.

As long as you are in another state forest than the ones listed above and not within a county listed above, it would be legal. Remember the concealed carry law also.

thanks

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Does the preemption clause not apply?

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http://en.wikipedia.org/wiki/Administrative_division

To the DNR? No. To various classes of state property? No.

Because collectively the State law is unclear as to where a gun may be legally carried, political subdivisions are not effectively preempted under 66.0409. I ANAL

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GJD wrote:

Does the preemption clause not apply?

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No, it applies to local units of government, not state agencies. It's in Chapter 66 of the statutes, i.e., "municipal government."

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I hunt on state-owned property, but they are not designated as a "State Park". there are state parks where hunting is allowed open to the general public, and some that require special permitting. So cloudy rules and regulations again! with no clear answers. you know the DNR will not know the proper laws so short of hiring an attorney to decipher the legal'eese I would avoid carrying in state park until a true determination can be made.

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Convoluted. Sounds like the way they like it.

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State statute 29.014 gives the DNR rule making powers. It allows the DNR to make any rule it sees fit to protect the State's fish and animals. It states that the rules made by the DNR are prima facie. Prima facie means any rule the DNR makes is law until declared otherwise in a court of law. So if the DNR says you may not carry a visible firearm in a State Forest outside of a hunting season then that rule is law until you challenge it and win in court.

It gets worse. Paragraph 4 under that statute says: No person may challenge the validity of a rule in any prosecution of a rule unless the person has obtained a previously asked for declaratory judgement. In other words if you violate a DNR rule you are guilty with no opportunity to prove yourself innocent.

Remember, in Wisconsin the DNR is all powerful.

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In Wisconsin the authority of the DNR has two simple rules.

Rule1: The DNR is always correct.

Rule 2: The DNR is never wrong.

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29.014 Rule−making for this chapter.

(1) The department shall establish and maintain open and closed seasons for fish
and game and any bag limits, size limits, rest days and conditions
governing the taking of fish and game that will conserve the fish
and game supply and ensure the citizens of this state continued
opportunities for good fishing, hunting and trapping.

(2) (b) All of the rules promulgated under this chapter are
prima facie reasonable and lawful until found to be otherwise in
a final determination by a court.
(c) Any reference to this chapter includes any rules promulgated
under this chapter and any reference to any provision of this
chapter includes any rules promulgated under that provision.

(3) Any rule of the department is subject to review in the manner
provided in ch. 227, except that if the rule affects only the
county in which the appellant resides, the appeal shall be to the circuit
court of that county.

(4) No person may challenge the validity of a rule promulgated
under this chapter in any prosecution of that person for a
violation of this chapter or rules promulgated under this chapter
unless the person has previously brought a separate action under
s. 227.40 seeking a declaratory judgment on the validity of the
rule.

History: 1997 a. 248 ss. 77 to 79, 383, 397, 399.
Cross Reference: See also chs. NR 10 and 11, Wis. adm. code.
The DNR has express authority under sub. (1) to adopt a rule allowing an open
hunting season for mourning doves. The legislature has granted broad authority to
the DNR to set open and closed seasons for game under sub. (1). Mourning doves
fall within the definition of game applicable to this section, although the doves also
fall within the definition of nongame species applicable to s. 29.039. Wisconsin Citizens
Concerned for Cranes and Doves v. DNR, 2004 WI 40, 270 Wis. 2d 318, 677
N.W.2d 612, 02−1166.
29.024 Approvals;

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So why don't we file a declaratory judgement under the applicable statute so that when they try to pull one of their stunts we can call them on it? It doesn't say we need to win a Declaratory judgement just have one filed that questions its validity.

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http://en.wikipedia.org/wiki/Declaratory_judgement

Got a judge in your pocket?

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This post isn't specifically about open carry but I won't be surprised if it doesn't eventually affect it.

One of the last acts by president Bush was to publish a rule on January 9, 2009 to allow concealed carry of firearms for personal protection in all National Parks and Federal lands. The rule was published in the Federal Register before Obama took office so he can not freeze it and it is law. There are two conditions to the rule. First, the person carrying must have a valid CC permit for the state the land resides in. Second, state gun carry laws take precedent over the rule. That is where the Wisconsin open carry rights come into play. Apostle Island National Lakeshore is on Wisconsin property. Concealed firearms can not be carried by anyone in that park because Wisconsin does not issue concealed carry permits. Superintendant Bob Krumanaker of the park is anti-carry of firearms in any manner . He misreads statute 941.23 and believes it prohibits all carry of firearms by anyone not a peace officer. Accordingly, he plans to post signs in the park that carry of concealed firearms is not permitted on the assumption that open carry is also unlawful. Therefore he presumes the park will be gun free.

The purpose of Bush's rule was to give the people the ability to carry firearms on National lands for personal protection. We all know the only way a person can do so in Wisconsin is by open carry. So by banning all manner of carry of firearms in Apostle Islands National Lakeshore is Krumanaker violating our Federal and State constitutional rights to posses firearms? Or do we presume that open carry of firearms in the park is lawful dispite his objection? This could be interesting and it could spill over into citizens right to open carry in Wisconsin state forests and lands.

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Lammie wrote:

This post isn't specifically about open carry but I won't be surprised if it doesn't eventually affect it.

One of the last acts by president Bush was to publish a rule on January 9, 2009 to allow concealed carry of firearms for personal protection in all National Parks and Federal lands. The rule was published in the Federal Register before Obama took office so he can not freeze it and it is law. There are two conditions to the rule. First, the person carrying must have a valid CC permit for the state the land resides in. Second, state gun carry laws take precedent over the rule. That is where the Wisconsin open carry rights come into play. Apostle Island National Lakeshore is on Wisconsin property. Concealed firearms can not be carried by anyone in that park because Wisconsin does not issue concealed carry permits. Superintendant Bob Krumanaker of the park is anti-carry of firearms in any manner . He misreads statute 941.23 and believes it prohibits all carry of firearms by anyone not a peace officer. Accordingly, he plans to post signs in the park that carry of concealed firearms is not permitted on the assumption that open carry is also unlawful. Therefore he presumes the park will be gun free.

The purpose of Bush's rule was to give the people the ability to carry firearms on National lands for personal protection. We all know the only way a person can do so in Wisconsin is by open carry. So by banning all manner of carry of firearms in Apostle Islands National Lakeshore is Krumanaker violating our Federal and State constitutional rights to posses firearms? Or do we presume that open carry of firearms in the park is lawful dispite his objection? This could be interesting and it could spill over into citizens right to open carry in Wisconsin state forests and lands.

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But open carry is STILL illegal in all national parks. The rule only allowed concealed carry within states where one was able to legally carry concealed.

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are there federal forests in WI? Fed. forests allow both open and concealed carry if not unlawful under state law.

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Yes, there are federal forests in Wi.

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I'm trying to find the actual wording of the ruling but I present this scenario. If one condition of the ruling is that the firearm laws of a state take precedent over the ruling, and a state only allows open carry then is it really true that open carry under that condition is not legal in National parks within that state's boundary? Anyone have a link to the actual document? So far I've been unsuccessful in locating one. It may be it is so recent it hasn't been publicly released.

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It's been released, I've read it. It specifically requires concealment. I'll try to find a link to it for you!

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Thanks Shotgun: Meanwhile I found a news article on the info I had heard.

http://www.businessnorth.com/kuws.asp?RID=2741

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This might help:

http://www.fws.gov/policy/library/E8-29249.html