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Thread: Another Potential Legal Faux Pas

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    I OC'd today at Natural Bridge. At one of the trail heads, I looked at the list of rules slapped to a bulletin board. One of the rules stated that weapons were not allowed on KY State Nature Preserves. Does anyone know anything about this?

    I don't believe they were claiming Natural Bridge was a SNP but the rule was stated nonetheless. At the end, the rules were referenced by various citations under KRS 146.

    I don't know much about KY Administrative Regulations (KAR), but I found 400 KAR 2:090. Section 15, Subsection 5 says, "Deadly weapons shall not be carried by visitors to a nature preserve except as allowed pursuant to permission to hunt in a nature preserve."

    KRS 146.485 states, "In furtherance of the purposes of KRS 146.410 to 146.530, the commission shall have the following additional powers and duties:
    (2) To make and publish policies, rules, and regulations for the selection, acquisition, management, protection, and use of natural areas and nature preserves, and for the conduct of commission affairs"

    So it would seems that KRS gives the SNP a lot of latitude to come up with rules and regs that they want to impose. It wouldn't seem like KAR can impose a complete weapons bans in SNPs.

    Another thought: I know that not all SNPs are open for the public--some just for academic study & research. Could some SNPs be private property and this is the reason for the weapons ban? Still, I don't believe KAR can outlaw weapons, it should be up to the property owners if that's the way it works.

    Anyone have any ideas? If not, I'll try to contact KY SNP about this. Thanks!

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    I've been doing a lot of reading tonight. Apparently Natural Bridge is a SPNP--state park nature preserve.

    "Dedicated Dec. 16, 1981, Natural Bridge State Park Nature Preserve today consists of approximately 1,188 acres and is located in Powell County. The preserve lies within the boundaries of Natural Bridge State Resort Park. This area was dedicated into the nature preserves system to protect a significant geological system and rare species habitat."

    Apparently I was illegal (but constitutional in my opinion) toady.

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    I think by now it's obvious I can't sleep. So I wrote a letter to the guy in charge of the SNPs. I haven't sent it and I want your all's advice. Anything I should add or leave out?

    "Mr. Dott,
    First off, I wish to thank you for your service to KSNPC. I have thoroughly enjoyed many of KYs state parks, wildlife management areas, and nature preserves. I consider myself an avid outdoor enthusiast and conservationist. The purpose of my email is of a legal matter. Considering your background in law, I am confident that you will be able to answer my question.

    I routinely “open carry” and conceal carry my handgun in a legal manner for the purpose of protecting myself and my wife. I visited Natural Bridge on July 26, 2009. Upon reaching the trail head, I read a general list of rules fashioned to a bulletin board. I noticed one rule that mentioned that the carrying of firearms are illegal at state nature preserves. At the bottom of the rules there were various citations involving KRS 146. KRS 146.850 states,

    "In furtherance of the purposes of KRS 146.410 to 146.530, the commission shall have the following additional powers and duties:
    (2) To make and publish policies, rules, and regulations for the selection, acquisition, management, protection, and use of natural areas and nature preserves, and for the conduct of commission affairs.”

    It would appear that KRS 146.850 gives KSNPC the authority to self-regulate the parks under their jurisdiction. 400 KAR 2:090 Section 15, Subsection 5 states,

    “Deadly weapons shall not be carried by visitors to a nature preserve except as allowed pursuant to permission to hunt in a nature preserve.”

    I believe that the respective statue and regulation are in direct contradiction to Section One of the Kentucky Bill of Rights that states,

    “Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.” (Emphasis added.)

    In the precedent set forth from the Kentucky Court of Appeals, Holland V. Commonwealth, it is established that the state legislature can only deny weapons carried in conceal fashion, NOT weapons carried in the open.

    Please note that I am a simple high school teacher that has no background in law. Frankly, I believe that law states very clearly and explicitly that Kentucky citizens may carry wherever they wish provided they are not in a bar or a federally regulated area. I look forward to hearing from you on this particular rule."



    Also, it appears that several of the SNPs are privately owned with a "conservation easement" being donated to the Commonwealth. Obviously Natural Bridge isn't privately owned, and most (if not all) of the privately owned SNPs are not even open to the public.

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    The letter looks fine. Very professional and well written. I believe this is the best way to contact officials when wanting to gain information, educate or possibly get things changed.

    Please post his reply.

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    Doesn't KY have preepmtion? Wouldn'tthat override the rules?

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    The preemption statue for bids cities, counties, or urban-county governments from regulating firearms. KYSNPC isn't any of those. That's why this is a little tricky.

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    Preemption states very clearly that the state can only regulate buildings. They may not regulate any other property. See AG opinion on state preemption
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    Don't forget, that sign is probably older than we are, and just because it is on the sign doesn't mean they can enforce it.



    I can walk around all day yelling "Don't Look At Me Or You Will Die".. Doesn't mean anything is gonna happen when someone looks at me.

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    The sign may be old but according to their website it still seems to be the law:

    http://www.naturepreserves.ky.gov/st.../preserves.htm

    I don't see how this can fly since this is a state commission not something privately formulated. Because if it's illegal to posses a deadly weapon on land sanctioned in this manner then it would have to be noted in the CCDW section of KRS, along with Sheriff's Departments, and Correctional Institutions. Plus as previously stated they cant regulate openly carried firearms per the state constitution.

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    Well if no one has anything to add to my letter, I will go ahead and send it.

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    Please do and let us know what they say.

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    I don't know how Kentucky Administrative Regulations (KAR) work, but it does seem to be an act of congress. I think I'll pass on the same info to my representative and senator. Any thoughts?

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    I accidentally posted this to the wrong thread. Anyways, here it is:

    After a week and a half of no response from Mr. Dott, I sent him an email and have finally received somewhat of a response:

    "Yes, I received your letter but have not had a chance to respond to it formally yet. Our regulation, 400 KAR 2:090 (5) prohibits deadly weapons on the preserves, unless specifically allowed for hunting. The only preserves where hunting is allowed are Stone Mountain Wildlife Management Area/State Natural Area, Bissell Bluff/Newman’s Bluff Wildlife Management Area/State Natural Area in Livingston County and Martins Fork Wildlife Management Area/State Natural Area, in accordance with the hunting and fishing seasons established by the Kentucky Department of Fish and Wildlife Resources. I would ask you to comply with the Commission’s regulations prohibiting deadly weapons on a preserve, pending a legal review of the question you have asked. I will have to submit that to the legal office of the Environmental and Energy Cabinet and I would expect a few weeks before I can get a reply. I will send that to you as soon as I have it. Thanks for your cooperation."

    I sent him this in response to his email:
    "I can understand your reluctance to officially comment on this subject without referring to your legal department. I am looking forward to their input on this issue. In the meantime, I'll write my congressmen about the contradictory nature of 400 KAR 2:090 to the Kentucky Constitution. Until a formal decision is made, I will continue carrying according to the Kentucky Constitution."

    I guess the next step is to contact my congressmen!


    I have now written both Rep. Hoffman and Sen. Thayer. Following is my email to them both (with their corresponding names):

    "I find myself in a very curious & difficult situation. As man more familiar with the law, and as my elected liaison to the House of Representatives, I am hoping you will be able to help. My question pertains to the legality of 400 KAR 2:090 Section 15, Subsection 5. This regulation seems to outlaw any firearms carry in Kentucky State Nature Preserves aside from designated hunting areas. This particular regulation seems to be in direct contradiction to the Kentucky Constitution. I am sure you are aware that the Constitution specifies that only the General Assembly has the authority to regulate the conceal carrying of weapons. There are also no provisions against the open carry of weapons. I am very concerned with the idea of the Commonwealth encroaching on the people's right to bear arms.

    I have already contacted Mr. Don Dott, Director of the KSNPC. He mentioned that he would refer my question to his commission's legal department and that I should expect a response within a few weeks. I am also sending a similar email to Senator Thayer about this problem. I am looking forward to hearing from you and how we can progress to eliminate this unconstitutional regulation."

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    Mr. Don Dott replied with this message:
    "Please be advised that pending a final determination of this issue, if you are found on a nature preserve with deadly weapons in violation of our regulations you will be cited."

    I guess consider yourselves forewarned.

    At least we have the Constitution on our side...

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    langzaiguy wrote:
    ...Ithink I'll pass on the same info to my representative and senator. Any thoughts?
    I think that's exactly what you ought to do - including in your note that you thought they (the legislature) were the one to write the lawson such matters.

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    See, that's the tricky part. I found that 400 KAR 2:090 (5) bans one from carrying at SNPs. So the General Assembly passed an unconstitutional regulation--it wasn't just the KSNPC.

    I wrote both my rep and my senator about it and have not received a response from either of them. I'll try to call or visit. I was surprised, my rep actually posted his personal address and number--so I don't think he's one to avoid the public. I might just drop by his house considering he lives a couple streets over from me...

    I think this will be a tough fight considering we need to overturn a KAR.

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    langzaiguy wrote:
    See, that's the tricky part. I found that 400 KAR 2:090 (5) bans one from carrying at SNPs. So the General Assembly passed an unconstitutional regulation--it wasn't just the KSNPC...

    ...I think this will be a tough fight considering we need to overturn a KAR.
    Unless I'm misunderstanding things,since when does a regulation override a state law?

    Also, the General Assembly didn't pass the regulation.

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    I have no idea what the difference between a KAR and a KRS is.

    A KAR isn't set forth by the general assembly? By breaking a KAR, can we be fined/arrested?

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    I just wrote Senator Tori and Representative Combs (both co-chairs of the KAR). I'll let everybody know what I find out!

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    Ok, so I've found out nothing. This has been pretty discouraging. I'm writing our old friend Jack Conway in hopes he'll issue an opinion on the matter.

    I love it when the government listens to its people.

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    Oh please do, I feel as though I'm hitting a road block. I may just mosey over to my Rep's house as he's so close. Just let me know what you're up to so we can work efficiently/effectively.

    For awhile there, I was feeling as though I was the only one with a problem with this. Glad I'm not the only one!

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    Do we even know if there are consequences for breaking this regulation? I don't have any plans to visit a SNP anytime soon, but if I do, I'll certainly be OCing...

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    Nice find, Gutshot. I looked into krs 224 and all the statutes were either renumbered or repealed. The ones that were renumbered, I don't know how to look up, so I pretty much came up with nothing on krs 224.

    So....an update with our situation. My email to Rep. Combs, Co-chair of KAR sent this letter:

    "Hey Dave,

    Would you please respond to this gentleman.

    Thanks,

    (Rep. Combs)

    Dave, Committee Staff Administrator for the Administrative Regulation Review Subcommittee, sent this email to me:

    "Thank you for your email alerting Representative Combs to the provisions of 400 KAR 2:090, “Management, Use, and Protection of Nature Preserves.” This particular regulation has not been updated or revised since 1987 and is obviously in need of a review. We appreciate your concerns, and those concerns will be taken into consideration as we continue to research this matter. Thank you again for your input."

    A couple thoughts: 1)It seems like Rep. Combs forwarded the inquiry to the appropriate guy. 2)Guy seems like he acknowledges that this regulation needs to be addressed. 3)I still feel as though the buck is being passed and I'm getting the run-around.

    I'll be in contact with Dave Nichols and see what I can come up with.

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    While I can't help with the letter writing, I can tell you that weapons are not allowed in SNP as they are set up to protect the fauna in the area, and make poaching more difficult.



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    gutshot wrote:
    superdemon wrote:
    While I can't help with the letter writing, I can tell you that weapons are not allowed in SNP as they are set up to protect the fauna in the area, and make poaching more difficult.

    How does carrying a gun in a holster on your belt harm fauna or effect poaching? As I said up thread banning the discharge of a firearm would make some sense, unless they had other motives in mind when the regulation was made.
    I am not saying it is logical, or that I agree with it, just stating the basis for the idea.



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