Section 19.40. Department authority to void local hunting, fishing and trapping ordinances.

 

(1)   Purpose. These rules are developed, pursuant to s. 227.11 , Stats., to establish procedures for determining when local ordinances should be voided under s. 29.038 , Stats., because they have more than an incidental effect on hunting, fishing or trapping, or do not have public health and safety as a primary purpose.

(2)   Definitions. In this section:

(a) "Building devoted to human occupancy" has the meaning used in s. 941.20 (1) (d) , Stats.

(b) "Undeveloped lands" has the meaning given in s. 943.13 (1e) (cr) , Stats.

(3)   Department determinations. Department determinations related to the legality of local ordinances regulating hunting, fishing or trapping shall consider the following factors when determining the validity of a local ordinance. The listed factors are not weighted and are factors which would favor a department decision to void the ordinance.

(a) The extent to which the ordinance affects undeveloped lands or lands which are zoned agricultural, forestry, lowland conservancy, upland conservancy or flood plain.

(b) The extent to which the department has received complaints about the ordinance.

(c) Whether the ordinance purports to directly regulate hunting.

(d) Whether the ordinance requires a permit to discharge a firearm or a bow, whether a fee is charged which exceeds 150 percent of the issuance fee established by s. NR 19.02 (4) (b) , creates a higher fee for non-residents or requires a background check.

(e) Whether the ordinance restricts the discharge of fine shot while the shooter is in or on the water more than 100 yards from the nearest developed shoreline, and shooting away from or parallel to that shoreline.

(f) Whether the ordinance prohibits the discharge of fine shot when on undeveloped lands which are more than 100 yards from buildings devoted to human occupancy, and shooting away from the buildings.

(g) Whether the ordinance prohibits hunting, fishing or trapping on department property otherwise open to hunting, fishing or trapping or on property leased by or under easement to the department for the purpose of hunting, fishing or trapping.

(h) Whether the ordinance prohibits the discharge of shotguns or bows within all areas of the municipality.

(i) Whether the ordinance prohibits the discharge of bows.

(j) Whether existing state laws adequately address the local safety concerns.

(k) Whether the ordinance prohibits fishing by individuals located on public waters.

(L) Whether less restrictive alternatives are available to address a municipality's safety concerns.

(m) Whether the ordinance prohibits live trapping.

(n) Whether the ordinance has no apparent health or safety purpose.

(4)   Exception. This section does not apply to fishing rafts subject to regulation under s. 30.126 , Stats.

(5)   Procedures.

(a) Prior to holding a hearing to determine the validity of a local ordinance under s. 29.038 , Stats., the department shall mail the affected municipality a notice of the time and location of the hearing. The department shall also publish a class I notice under ch. 985 , Stats. , of the hearing in the county in which the municipality is located. The notice shall be given at least 30 days prior to the date set for the hearing.

(b) Hearings shall be conducted to the extent possible in a manner consistent with s. 227.18 (1) and (2) , Stats.

(c) The final decision shall be made by the secretary or the secretary's designee.

(d) The decision shall be in writing and accompanied by findings of fact and conclusions of law.

(e) The department may void ordinances found to be in violation of s. 29.038 , Stats., in whole or in part, or as applied to certain areas, certain classes of persons, certain times of the year, or certain circumstances.

Cr. Register, May, 2001, No. 545 , eff. 6-1-01; correction in (2) (b) made under s. 13.92 (4) (b) 7. , Stats., Register May 2013 No. 689 .

Note

At the current time, the fee established by s. NR 19.02 (4) (b) is $3.00. Microsoft Windows NT 6.1.7601 Service Pack 1