80 Op. Att'y Gen. 7, 17 (1991)
These same safety risks also exist on game, fur and deer farms. As stated in your request, nothing precludes a bullet or arrow from going beyond the boundaries of the licensed farm area and injuring people. You also indicated that many game farms are surrounded by nearby residences and public roads, all jeopardizing the public safety, if shining was permitted on these and other private animal farms.
80 Op. Att'y Gen. 7, 18 (1991)
While game, fur and deer farm operators are generally not subject to harvest regulations regarding the animals purchased for their farms, this authority if taken to an extreme could very well result in significant and unnecessary safety problems. Licensees could argue that in addition to shining, they should be authorized to use spring guns, since the law grants them authority to harvest their animals by any manner. Certainly, the Legislature could not have desired these kinds of results, namely, endangerment of public health and safety, in the enactment of sections 29.574(6)(a), 29.575(4) and 29.578(4). It is a basic rule of statutory construction that statutes should be interpreted to avoid absurd or unreasonable results. State v. Pham
, 137 Wis. 2d 31, 34, 403 N.W.2d 35 (1987); Acquisition of Certain Lands by Benson
, 101 Wis. 2d 691, 697, 305 N.W.2d 184 (Ct. App. 1981). To authorize shining, with its attendant unacceptable safety risks, on private animal farms would be to adopt a statutory construction in derogation of common sense, which is impermissible to do. See
State v. Clausen
, 105 Wis. 2d 231, 246, 313 N.W.2d 819 (1982). I conclude therefore that there is only one reasonable construction of the shining and private animal farm laws: the shining prohibition should be applied to game, fur and deer farms because it is necessary to protect human safety. With this interpretation, these statutes can be harmonized to provide a rational and sensible construction of the Legislature's intent in the enactment of these laws.
80 Op. Att'y Gen. 7, 18 (1991)
JED:LL
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-246 The term shining refers to the practice of illuminating, locating or attempting to illuminate or locate deer or other wild animals with flashlights, automobile lights or other lights. Secs. 29.245(1)(d); 29.245(1)(b), Stats.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-247 While you did not specifically request an opinion on the shining prohibition's applicability to fur or deer farms, I believe that they raise the same issues and therefore have treated them together in this opinion.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-248 These farms will also be collectively referred to as "private animal farms."
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-249 Wisconsin Administrative Code section NR 10.04 states: "The following wild animals are designated unprotected. No closed season, bag limit, size limit or possession limit applies to these animals.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
(1) Opossum, skunk and weasel.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
(2) Starlings, English sparrows, coturnix quail and chukar partridge.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
(3) Any other wild animal not specified in this [NR 10] chapter."
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-250 This opinion will not address shining of raccoon or fox because section 29.245 clearly permits shining of these animals at the point of kill.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-252 See
also
Wis. Admin Code NR 10.04(1). Additionally, it should be noted that by excepting these animals, I am not stating that they may be shined absent restrictions. Rather, these unprotected animals may be shined only at the point of kill. See
subsecs. 29.245(4)(b)2., (5)(b)2., Stats.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-253 The following regulations establish the open and closed hunting seasons (unless noted otherwise) for the game or fur animal denoted in parentheses: Wis. Admin. Code NR 10.01(4)(d) (otter trapping season); 10.01(4)(c) (beaver trapping season); 10.01(4)(a) (mink and muskrat trapping season); 10.02(2) (incorporates by reference Wisconsin's endangered or threatened species list, which includes marten, wolf and lynx); 10.02(1) (badger, moose and elk); 10.01(3)(h) (coyote); 10.01(3)(d) (wildcat); 10.01(3)(e) (deer); 10.01(3)(g) (bear); 10.01(3)(c) (rabbits); 10.01(3)(a) (squirrels).
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Such game [farm] birds and animals, except waterfowl, may be taken at any time in any manner by persons qualified under this chapter to hunt thereon.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
The [fur farm] licensee shall have the right to manage and control said lands and the licensed fur animals thereon, to take the same at any time or in any manner which the licensee sees fit and deems to the best advantage of the licensee's business, and to sell and transport at any time said fur animals or the pelts taken from them.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
After the complete installation of such fence and after the department has satisfied itself that it is satisfactory and complies with the law, it may issue a license to the [deer farm] applicant describing such lands, and certifying that the licensee is lawfully entitled to use the same for the breeding, propagating, killing and selling of deer thereon according to this section.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-257 It should also be noted, however, that in section 277, Laws of 1959, the game farm law originally protected a larger class of animals. Section 29.574(6)(a) then authorized licensees to harvest by any method with the exception of deer, ruffed grouse, sharp-tailed grouse, prairie chicken and waterfowl. Since these animals (with the exception of waterfowl) were subsequently deleted in the Laws of 1961, it is arguable that this revision means that the Legislature intended to provide game farm licensees with expansive harvest rights on their property. This revision, however, cannot be read independently, but rather should be construed and harmonized with the related statutes on permissible hunting methods so as to give effect to each provision of the statutes involved. See
Hansen Storage Co. v. Wis. Transp. Comm.
, 96 Wis. 2d 249, 256, 291 N.W.2d 534 (1980).
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-258 The fur farm statute in its initial enactment only pertained to muskrats. Section 344, Laws of 1919, did not restrict the methods of muskrat harvest, with the exception of prohibiting shooting or spearing. Chapter 536, Laws of 1955, authorized fur farm licensees to take otter, raccoon or skunk in any manner. Chapter 459, section 10 of the Laws of 1963, authorized the harvest of mink in any manner.
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
80 Op. Att'y Gen. 7, 7 (1991) - Footnote
Destination-261 I am not concluding, however, that this is the only purpose for which licensees can be regulated. There may be other permissible purposes for regulating private animal farms, such as protection and conservation of wildlife and assistance with law enforcement. I do not address these questions in this opinion.
___________________________
