(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.
Note: At the current time, the fee
established by s.
NR 19.02(4)
(b) is $3.00.
(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.
