DNREC sued over hunting restriction

DOVER — Second Amendment advocates have filed a lawsuit against the state over the Department of Natural Resources and Environmental Control’s interpretation of a law meant to allow individuals to use some rifles for hunting.

In 2018, the General Assembly approved a bill intended to authorize the use of semiautomatic rifles of certain calibers for hunting, joining shotguns, bows, pistols and muzzle-loading rifles on the list of allowable weapons.

However, when DNREC released the annual hunting guide earlier this year, it contained a provision that drew the ire of hunters and prompted to main sponsor of the legislation to say DNREC was ignoring the intent of his bill.

“Rifles chambered for straight-wall ammunition legal for deer hunting must be manually operated, consisting of: lever action, bolt action, pump action, single shot, and revolver rifles,” the guide reads in part. “Only straight-wall cartridges usable in handguns may be used that are of .357 to 38 caliber with a case length no less than 1.25 inches and a maximum case length of 1.82 inches, or .41 caliber to maximum of .50 caliber and a maximum case length of 1.82 inches.

“Case length excludes the bullet portion of the cartridge. Additionally, if there is not a commercially produced handgun available that is chambered for ammunition that meets the caliber and cartridge case length criteria than a rifle chambered for that same ammunition is not permissible for use.”

It’s the last sentence that has caused the lawsuit.

In November, the Delaware State Sportsmen’s Association, along with the Bridgeville Rifle and Pistol Club and two individuals, filed suit in the Superior Court against DNREC, alleging it was violating the state constitution through its interpretation of the law.

The litigation says the agency “usurped the will of the General Assembly by attempting to legislate from the executive branch,” despite clear separation of powers. Furthermore, the suit notes, the bill was crafted and debated over a period of more than a year, providing ample time for DNREC to raise objections.

Basically, at least in the plaintiffs’ view, the restriction was “unilaterally drafted by un-elected bureaucrats, in an unlawful attempt to end-run legislative intent and distort the balance of power amongst the branches of government.”

“It just seems to be that this is fairly clearly an executive branch overreach, that this really does violate the separation of powers enshrined in our constitution, and again, I can’t stress this enough, importantly, it never needed to come to this,” Rep. Jeff Spiegelman, a Clayton Republican who was the main sponsor of the 2018 measure, said Tuesday.

“It really didn’t. At any point in those 13 months the secretary could have brought those concerns to us.”

Hunters who were eagerly anticipating bringing a rifle to the woods with them for deer season are unable to do so as a result of the rule, the lawsuit notes.

Rep. Spiegelman made a similar point.

“I’ve got friends who have said to me, I haven’t bought a license or gone deer hunting in years but now that we’ve got this new rifle I can use, I want to give it a shot,” he said.

Rifles are more accurate than pistols, meaning it isn’t a question of safety, he said.

DNREC declined to comment, with a spokesman saying the agency typically does not weigh in on active litigation, but the department filed a motion to dismiss the suit last week.

In it, DNREC said the plaintiffs lack standing to file a lawsuit in the first place and, at any rate, have failed to prove they were harmed by the provision

“Not only are Bridgeville’s alleged harms hypothetical, speculative, and without any causal connection, they are vast distortions and gross overgeneralizations of the alleged issue raised here, which simply stated, is whether Plaintiffs can use a rifle with automatic action for deer hunting during the November and January shotgun deer season or during the January handgun deer season,” reads part of its argument.

“The language in the Hunting Guide that describes the type of rifles that may be used to harvest deer cannot be interpreted as an impediment to deer hunting.”

In September 2018, the four co-chairs of the Delaware Sportsmen’s Caucus (two Democrats and two Republicans) sent a letter to DNREC questioning its interpretation.

“We have little doubt that the actions taken by the department will be challenged in court and, without the legal foundation of the decision of the Department being conveyed to us as requested, we also feel that the actions of the Department are a gross overstep of authority and that those actions will be overturned by the judicial process,” it states in part.

One week after filing the initial complaint, the plaintiffs requested an expedited proceeding, in part due to the fact shotgun/pistol/rifle deer season consists only of 16 days in January and 10 in November.

Last week, they filed a motion asking Judge Noel Primos to schedule oral arguments.

This is not the first time the Delaware State Sportsmen’s Association and Bridgeville Rifle and Pistol Club have taken aim at DNREC.

In 2017, they won a suit forcing the state to lift decades-old restrictions on bringing guns into state parks. After the agency placed new limitations on carrying firearms in “tents, cabins, cottages, yurts, lodges and other overnight housing used by those sleeping in rented accommodations in state parks or state forests,” the groups again sued. Most of the rules challenged in the filing were struck down by the court.

DNREC has until Dec. 17 to respond to the latest filing.

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