February 11, 1982
Subject:
Wildlife Resources; Counties, Preemption of Ordinances.
Requested By:
H. T. Mullen, Jr. County Attorney Pasquotank County
Question:
May a County adopt an ordinance regulating the method of trapping wildlife?
Conclusion:
No.
In State v. Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972), the Supreme Court held that a County can regulate conduct already governed by State law only where it cannot be fairly implied that the Legislature intended to preempt the entire subject. This same principal of preemption has been applied to enactments of other political subdivisions such as municipalities and local boards of health. See, e.g., State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973); 50 N.C. Atty. Gen. Rep. 42 (1980).
N.C.G.S. § 113-133.1(a) states that "The enjoyment of the wildlife resources of the State belongs to all of the people of the State." The Legislature went on to repeal, with certain specified exceptions, all special, local, and private acts and ordinances regulating the conservation of wildlife resources. N.C.G.S. § 113-133.1(b). With respect to future ordinances, the Legislature specifically said,
Nothing in the section is intended to repeal or prevent the enactment of any city or county ordinance otherwise validly authorized which has only minor and incidental impact on the conservation of marine and estuarine and wildlife resources . . . N.C.G.S. § 113-133.1(c).
The unmistakable meaning of these provisions is that the Legislature has reserved the regulation of wildlife resources to itself and has thus preempted the entire field to the exclusion of all local ordinances except those which have only a "minor and incidental" impact on wildlife conservation (e.g., an ordinance prohibiting the discharge of firearms from public roads).
The Legislature has specifically undertaken to regulate the manner of taking wildlife in several sections. See, e.g., N.C.G.S. § 113-291.1, 291.5, 291.6, N.C.G.S. § 113-291.6 sets out trapping regulations in some detail, describing the type, size, tagging and placing of traps.
In light of this clear legislative intention preempt the entire field of wildlife regulation, we are of the opinion that a County may not adopt an ordinance regulating the method of trapping wildlife.
Rufus L. Edmisten Attorney General
Lucien Capone, III Assistant Attorney General