AB864: Bill Text

Note: Under s. 227.11 (2), state agencies are authorized to "promulgate rules interpreting the provisions of any statute enforced or administered by it...". The DNR therefore clearly has authority to promulgate rules under all provisions of ch. 29, subject only to the specific limitations on its rule-making authority set forth in ch. 29, and to the general requirement under s. 227.11 that a rule is not valid if it exceeds the bounds of correction interpretation.

However, ch. 29 now contains many examples of permissive rule-making authority. (For example, see s. 29.1085, related to bear harvest permits, which provides in sub. (6): "The department may promulgate rules to administer and interpret this section.".) This bill eliminates some, but not all, of those instances of permissive rule-making authority, and makes ch. 29 conform to the clear meaning of s. 227.11 (2).

Note: One of the disadvantages, for the purposes of statutory interpretation, of individual examples of permissive rule-making authority, is the potential for an implication that by granting permissive rule-making authority for some provisions of ch. 29, the legislature did not intend to grant rule-making authority for other provisions of the chapter. This is clearly not the case, and such an implication would in fact be contrary to the legislature's broad grant of authority to the DNR under ch. 29 to regulate fish and game.

The creation of a general statement of rule-making authority in new s. 29.014 (2) (a) and the reference to statutory authority in new s. 29.014 (2) (c) is intended to resolve any potential doubt about the DNR's authority to promulgate rules under all provisions of ch. 29. Because the DNR already has such authority under s. 227.11 (2), the general grant of rule-making authority under new s. 29.014 (2) (a) is remedial, and applies to all rules promulgated by the DNR under ch. 29 prior to the effective date of this bill.

AB864, s. 79 Section 79. 29.014 (4) of the statutes is created to read:

AB864,28,12 29.014 (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.

Note: This provision restates the substance of current s. 29.174 (7).

AB864, s. 80 Section 80. 29.015 (title) of the statutes is repealed.

AB864, s. 81 Section 81. 29.015 (1) (intro.) of the statutes is renumbered 29.417 (3) (intro.) and amended to read:

AB864,29,5 29.417 (3) (intro.)  Whenever the hereinafter named bays Bays and harbors are mentioned in this chapter, listed in this section shall have the following description for the same shall apply:

Note: This bill places descriptions of bays and harbors in new s. 29.417 relating to permits to take rough fish. The descriptions are moved there since these bays and harbors are referred to only in the statute relating to permits to take rough fish.

AB864, s. 82 Section 82. 29.015 (1) (a) of the statutes is repealed.

AB864, s. 83 Section 83. 29.015 (1) (b) to (i) of the statutes are renumbered 29.417 (3) (a) to (h).

AB864, s. 84 Section 84. 29.015 (1) (j) of the statutes is renumbered 29.001 (81) and amended to read:

AB864,29,14 29.001 (81) That "Sturgeon Bay" means that body of water known as Sturgeon bay lying south and east of a line commencing at the most northerly point of section 23, township 28 north, range 25 east, and running in a northeasterly direction to the water's edge on north line of section 13, same township and range.

AB864, s. 85 Section 85. 29.015 (1) (k) to (m) of the statutes are renumbered 29.417 (3) (i) to (k).

AB864, s. 86 Section 86. 29.015 (1) (n) to (q) of the statutes are repealed.

AB864, s. 87 Section 87. 29.02 (title), (1) and (2) of the statutes are renumbered 29.011 (title), (1) and (2), and 29.011 (1) and (2), as renumbered, are amended to read:

AB864,29,22 29.011 (1) The legal title to, and the custody and protection of, all wild animals within this state is vested in the state for the purposes of regulating the enjoyment, use, disposition, and conservation thereof of these wild animals.

AB864,30,9 (2) The legal title to any such a wild animal, or carcass or part there of, taken or reduced to possession in violation of this chapter, remains in the state; and the. The title to any such a wild animal, or carcass or part thereof, lawfully acquired, is subject to the condition that upon the violation of this chapter relating to the possession, use, giving, sale, barter or transportation of such a wild animal, or carcass or part thereof, by the holder of such title owner, the same ownership shall revert, as a result of the violation, to the state. In either case, any such wild animal, or carcass or part thereof, may be seized forthwith, wherever found, by the department or its wardens.

Note: The provision on seizure is redundant with current s. 29.05 (7) to (9), renumbered as s. 29.931.

AB864, s. 88 Section 88. 29.02 (3) of the statutes is repealed.

AB864, s. 89 Section 89. 29.02 (3m) of the statutes, as affected by 1997 Wisconsin Act 27, is repealed.

Note: The current text of s. 29.02 (3) and (3m) of the statutes is as follows:

"29.02 (3) This section shall not permit seizure of nor prohibit possession or sale of lawfully obtained wild birds and animals which are mounted or in the process of being mounted for a private collection.

(3m) This section does not permit the seizure by the department, or prohibit the possession or sale, of farm-raised deer or farm-raised fish.".

Section 29.02 (1) provides that the state holds title to wild animals. Section 29.02 (2) provides that if any person has acquired title to a wild animal or its carcass, title reverts to the state if the person violates any provision of ch. 29 related to possession, use, giving, sale, barter or transportation of the wild animal or its carcass. The overall purpose of these 2 subsections is not to establish authority or procedures for the seizures of wild animals or carcasses, so s. 29.02 (3) and (3m) do not serve any purpose.

AB864, s. 90 Section 90. 29.024 (title) of the statutes is created to read:

AB864,30,14 29.024 (title) Approvals; forms; issuing agents.

AB864, s. 91 Section 91. 29.024 (9) of the statutes is created to read:

AB864,30,17 29.024 (9) Tags. The department shall provide all tags required under this chapter and shall specify their form and numbering.

AB864, s. 92 Section 92. 29.025 of the statutes is renumbered 29.075.

AB864, s. 93 Section 93. 29.03 of the statutes is renumbered 29.927, and 29.927 (1) to (6), (10) and (11), as renumbered, are amended to read:

AB864,31,4 29.927 (1) Any unlicensed, untagged or unmarked net of any kind, or other unlicensed, untagged or unmarked device, trap, or contrivance for fishing; or any.

AB864,31,7 (1m) Any licensed, tagged or marked net or other device, trap or contrivance for fishing set, placed, or found in any waters where the same it is prohibited to be used, or in a manner prohibited by law this chapter.

AB864,31,9 (2) Any unlicensed, untagged or unmarked setline, cable, rope, or line, with more than one fish line attached thereto; or any.

AB864,31,12 (2c) Any licensed, tagged or marked setline set, placed, or found in any waters where the same it is prohibited to be used, or in a manner prohibited by law; or any this chapter.

AB864,31,14 (2g) Any fish line left in the water unattended, whether having one or more hooks attached.

AB864,31,20 (2m) Any long tunnel pound net or similar entrapping net other than the legal fyke net, drop net, submarine trap net and the short tunnel pound net whenever found in outlying waters or on any vessel boat, dock, pier, or wharf or in any building or vehicle on or adjacent to such outlying waters. Any such contraband nets so found as described in this subsection shall be deemed sufficient evidence of the use of such the nets by the owner thereof.

AB864,31,23 (3) Any screen device set in public waters to prevent the free passage of fish, or set in any stream which has been stocked by the state authorities unless authorized by the department.

AB864,31,25 (4) Any building, inclosure, permanent or temporary structure, or shelter placed, occupied, or used on the ice of any waters in violation of this chapter.

AB864,32,2 (5) Any unlicensed trap, snare, spring gun, set gun, net or other device or contrivance which might entrap, ensnare, or kill game; or any.

AB864,32,3 (5m) Any trap without a metal tag attached as required by law.

AB864,32,4 (6) Any boat, together with its machinery, sails, tackle and equipment, or any.

AB864,32,7 (6g) Any lamp, light, gun, pivot gun, swivel gun, or other firearm, ammunition, bow, crossbow or arrow used in violation of this chapter or s. 167.31; or any or any rules promulgated under s. 167.31.

AB864,32,9 (6r) Any boat, floating raft, box, or blind set in open water and used in hunting game birds.

AB864,32,10 (10) Any blind used in hunting waterfowl in violation of s. 29.27 29.327.

AB864,32,14 (11) Any motor vehicle, as defined in s. 939.22 (44) boat, aircraft, remote sensing equipment, navigational device, survey equipment, scuba gear or other equipment or device used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47.

AB864, s. 94 Section 94. 29.035 (title) of the statutes is created to read:

AB864,32,16 29.035 (title) Report of department.

AB864, s. 95 Section 95. 29.047 (1) and (1m) of the statutes are created to read:

AB864,32,18 29.047 (1) (a) In this subsection:

AB864,32,20 1. "Transport" includes to cause to be transported, to deliver or offer to deliver for transportation and to receive or offer to receive for transportation.

AB864,32,21 2. "Game" means any wild animal, wild bird or game fish.

AB864,32,23 (b) No person in this state may transport into or through this state any game, or its carcass, from any other state in violation of any law of the other state.

AB864,33,2 (c) No person in this state may transport, possess or control in this state any game, or its carcass, that was taken in another state in violation of any restriction on open and closed seasons established under this chapter or of any bag, possession or size limit established under this chapter unless all of the following apply:

AB864,33,4 1. The game was lawfully taken in and lawfully transported from the other state.

AB864,33,6 2. The person holds a license issued by the other state that authorized the person to transport, possess or control the game or its carcass.

AB864,33,10 (1m) Unless prohibited by the laws of an adjoining state, any person who has lawfully killed a deer in this state may take the deer or its carcass into the adjoining state and ship the deer or carcass from any point in the adjoining state to any point in this state.

AB864, s. 96 Section 96. 29.047 (2) (intro.) of the statutes is created to read:

AB864,33,12 29.047 (2) (intro.) Subsection (1) does not apply to any of the following:

AB864, s. 97 Section 97. 29.05 (title) of the statutes is repealed.

AB864, s. 98 Section 98. 29.05 (1) of the statutes is renumbered 29.921 (1) and amended to read:

AB864,34,2 29.921 (1) (title) Warrants, arrests Generally. The department and its wardens may execute and serve warrants and processes issued under any law enumerated in ss. 23.50 (1), 167.31, 346.19, 940.24, 941.20, 948.60, 948.605 and 948.61 in the same manner as any constable may serve and execute the process; and may arrest, with or without a warrant, any person detected in the actual violation, or whom the officer has probable cause to believe is guilty of a violation of any of the laws cited in this subsection, whether the violation is punishable by criminal penalties or civil by forfeiture, and may take the person before any court in the county where the offense was committed and make a proper complaint. For the purpose of enforcing any of the laws cited in this subsection, any such officer may stop and board any boat and stop any automobile, snowmobile or other vehicle, if the officer reasonably suspects there is a violation of those sections.

AB864, s. 99 Section 99. 29.05 (1d) of the statutes is renumbered 29.921 (2) and amended to read:

AB864,34,14 29.921 (2) (title) Warrants, arrests; field Field archaeology. The department and any of its wardens may execute and serve warrants and processes issued for violations of s. 44.47 occurring on the bed of any stream or lake in the same manner as any constable may serve and execute such the process; and may arrest a person, with or without a warrant, who is detected committing such a violation, or whom the warden has probable cause to believe is guilty of a violation of s. 44.47, and may take the person before any court in the county where the violation was committed and make proper complaint. For the purpose of enforcing s. 44.47, any warden may stop and board any boat and stop any automobile, snowmobile or other vehicle, if the warden reasonably suspects that there is a violation of s. 44.47.

AB864, s. 100 Section 100. 29.05 (1m) of the statutes is renumbered 29.921 (3) and amended to read:

AB864,35,3 29.921 (3) (title) Warrants, arrests; harassment Harassment. The department and its wardens may execute and serve warrants and processes issued for violations of s. 947.013 (1m) (b) if the victim of the harassment is intentionally selected because of the victim's race in the same manner as any constable may serve and execute the process; and may arrest, with or without a warrant, any person detected in the actual violation, or whom the warden has probable cause to believe guilty of a violation of s. 947.013 (1m) (b), whether the violation is punishable by criminal penalties or civil by forfeiture and may take the person before any court in the county where the offense was committed and make a proper complaint. For the purpose of enforcing s. 947.013 (1m) (b), any warden may stop and board any boat and stop any automobile, snowmobile or other vehicle, if the warden reasonably suspects there is a violation of s. 947.013 (1m).

AB864, s. 101 Section 101. 29.05 (1v) of the statutes is renumbered 29.921 (4) and amended to read:

AB864,35,18 29.921 (4) (title) Warrants, arrests; tribal Tribal code enforcement. If a federally recognized American Indian tribe or band consents to the enforcement of its conservation code by the department or if a federal court order authorizes or directs such the enforcement, the department and its wardens may execute and serve warrants and processes issued for violations of the tribe's or band's conservation code that occur outside the exterior boundaries of American Indian reservations; and may arrest a person, with or without a warrant, who is detected committing such a violation, or whom the warden has probable cause to believe is guilty of such a violation, and may take the person before the tribal court of appropriate jurisdiction and make proper complaint. For the purpose of enforcing a tribe's or band's conservation code, any warden may stop and board any boat and may stop any automobile, snowmobile or other vehicle, if the warden reasonably suspects there is a violation of such a conservation code.

AB864, s. 102 Section 102. 29.05 (2) of the statutes is renumbered 29.921 (5) and amended to read:

AB864,36,15 29.921 (5) Additional arrest powers. In addition to the arrest powers under sub. (1), a conservation warden who has completed a program of law enforcement training approved by the law enforcement standards board, has been certified as qualified to be a law enforcement officer under s. 165.85 (4) (b) 1. and has complied with any applicable requirements under s. 165.85 (4) (bn) 1. while on duty and in uniform or on duty and upon display of proper credentials may assist another law enforcement agency as defined under s. 165.83 (1) (b) including making an arrest at the request of the agency, may arrest a person pursuant to an arrest warrant concerning the commission of a felony or may arrest a person who has committed a crime in the presence of the warden. If the conservation warden makes an arrest without the presence of another law enforcement agency, the conservation warden shall cause the person arrested to be delivered to the chief of police or sheriff in the jurisdiction where the arrest is made, along with the documents and reports pertaining to the arrest. The conservation warden shall be available as a witness for the state. A conservation warden may not conduct investigations for violations of state law except as authorized in sub. (3) and ss. 23.11 (4), 29.924 (1) and 41.41 (12). A conservation warden acting under the authority of this subsection is considered an employe of the department and is subject to its direction, benefits and legal protection. The authority granted in this section does not apply to county conservation wardens or special conservation wardens.

AB864, s. 103 Section 103. 29.05 (3) of the statutes is renumbered 29.924 (1) and amended to read:

AB864,36,22 29.924 (1) Investigations. Such officers The department and its wardens shall, upon receiving notice or information of the violation of any laws cited in sub. s. 29.921 (1), as soon as possible make a thorough investigation thereof, and cause proceedings to be instituted if the proofs at hand warrant institute proceedings if the evidence warrants it.

AB864, s. 104 Section 104. 29.05 (4) of the statutes is renumbered 29.924 (2) and amended to read:

AB864,37,11 29.924 (2) Driving without headlights. In the performance of their law enforcement duties under this chapter, duly authorized , wardens may operate motor vehicles owned or leased by the department upon a highway, other than an interstate, a state trunk highway or any highway within the limits of any incorporated area, during hours of darkness without lighted headlamps, tail lamps or clearance lamps, contrary to s. 347.06, if the driving will aid in the accomplishment of a lawful arrest for violation of this chapter or rules promulgated under this chapter or in ascertaining whether a violation of this chapter or rules promulgated under this chapter has been or is about to be committed. Any civil action or proceeding brought against any warden operating a motor vehicle under this subsection is subject to ss. 893.82 and 895.46.

AB864, s. 105 Section 105. 29.05 (5) of the statutes is renumbered 29.924 (3) and amended to read:

AB864,37,20 29.924 (3) Opening packages. The department and its wardens may examine and open any package in the possession of a common carrier which they have probable cause to believe contains wild animals in violation of this chapter, or carcasses or parts thereof, or is falsely labeled in violation of this chapter; and every such. Each common carrier, and every its agent, servant, or employe thereof, shall permit any such the officer to examine and open any such the package. Any opened package so opened shall be restored to its original condition.

AB864, s. 106 Section 106. 29.05 (6) of the statutes is renumbered 29.924 (4) and amended to read:

AB864,38,6 29.924 (4) Access to storage places. For purposes of enforcing this chapter, the department and its wardens shall be permitted by the The owner or occupant of any cold storage warehouse or building used for the storage or retention of wild animals, or carcasses or parts thereof, shall permit the department and its wardens to enter and examine said the premises subject to ss. 66.122 and 66.123; and the. The owner or occupant, or the agent, servant, or employe of the owner or occupant, shall deliver to any such the officer any wild animal, or carcass or part thereof, in his or her possession during the closed season therefor, whether taken within or without the state.

AB864, s. 107 Section 107. 29.05 (6m) of the statutes is renumbered 29.924 (5) and amended to read:

AB864,38,13 29.924 (5) Access to private land. For purposes of this chapter, the The department may, after making reasonable efforts to notify the owner or occupant, enter upon private lands to retrieve, or diagnose or otherwise determine if there are dead or diseased wild animals upon those lands, and take actions reasonably necessary to prevent the spread of contagious disease in the wild animals.

AB864, s. 108 Section 108. 29.05 (7) of the statutes is renumbered 29.931 (1) and amended to read:

AB864,38,25 29.931 (1) (title) Seizure and confiscation of game, or game fish wild animals or plants. They The department and its wardens shall seize and confiscate in the name of the state any wild animal, or carcass or part thereof, or plant caught, killed, taken, had in possession or under control, sold or transported in violation of this chapter; and any such the officer may, with or without warrant, open, enter and examine all buildings, camps, vessels or boats in on inland or outlying waters, wagons, automobiles or other vehicles, cars, stages, tents, suit cases, valises, packages, and other receptacles and places where the officer has probable cause to believe that wild animals, carcasses or plants, taken or held in violation of this chapter, are to be found.

Note: This provision adds "plant" to the statute that currently authorizes DNR to seize and confiscate wild animals and carcasses. The statute on seizure and confiscation predates the statutes related to wild plants (endangered and threatened species, wild rice and wild ginseng), and the statute on seizure and confiscation was not amended to allow seizure and confiscation of plants. This appears to have been an omission, which is corrected in this provision.

AB864, s. 109 Section 109. 29.05 (8) of the statutes is renumbered 29.931 (2) and amended to read:

AB864,39,17 29.931 (2) (title) Seizure and confiscation of apparatus, etc. objects ; sale of perishable property. (a) The department and its wardens shall seize and hold, subject to the order of the court for the county in which the alleged offense was committed, any apparatus, appliance, equipment, vehicle boat or device, object declared by this chapter to be a public nuisance, or which they have probable cause to believe is being used in violation of this chapter, an administrative rule promulgated under this chapter or s. 167.31, 287.81, 940.24, 941.20, 948.60, 948.605 or 948.61 or is being used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47. If it is proven that the vehicle, boat or object is a public nuisance or that within 6 months previous to the seizure the apparatus, appliance, equipment, vehicle, boat or device object was used in violation of this chapter or an administrative rule promulgated under this chapter or s. 167.31, 287.81, 940.24, 941.20, 948.60, 948.605 or 948.61 or was used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47, it shall be confiscated if the court directs in its order for judgment.

Note: The word "or", which is inserted in current s. 29.05 (8) (a), was previously a part of this provision but was deleted, apparently in error, by ch. 365, laws of 1975. The 2nd sentence of this paragraph is amended to make it parallel to the first sentence.

AB864,40,5 (b) Any perishable property seized by the department or its wardens may be sold at the highest available price, and the proceeds of the sale turned into court to await for disposition of the proceeds as the court directs. A conservation warden or other officers charged with the enforcement of the laws dealing with the conservation of the natural resources of the state may kill a dog found running, injuring, causing injury to, or killing any deer, other than farm-raised deer, or destroying game birds, their eggs or nests, if immediate action is necessary to protect the deer or game birds, their nests or eggs, from injury or death.