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So, as many of you may know in 2011 OFF sued the Oregon University System and the Board of Higher Education about an Oregon Administrative Rule baring firearms from campus. Only after OFF appealed a previous loss did they win. The basic jist of the ruling was that only the Oregon Legislative Assembly had authority to create legislation regarding firearms, ammo and such. Since OAR's that every government entity makes carries the "force of law" it is in effect legislation, legislation they don't have the authority to make with out "expressed permission" in the form of "state statute."
This had just happened when I got my first CHL issued to me so it was a big deal as I was in college. Anyway, upon submitting my application I notified former Sheriff Tim Muller of Linn county that OFF had won in the form of an email.
In the course of moving from Linn to Marion county I updated my CHL and a year later I moved back to Linn. Upon updating my CHL (again) I noticed 2 things: one that Sheriff Muller was no longer Sheriff and two that the language in the pamphlet about schools had changed from "possibly might be illegal to carry on schools" to "there is no law prohibiting CHL on schools."
I was elated. So, I sent a letter to Sheriff Bruce Riley (current Linn County Sheriff) in regards to other OAR that I though was invalid, particularly the one about State Forest Land which read "may not possess firearms on State Forest Land that has been designated 'recreational' area" ie camping and such.
My letter read,
"Dear Sheriff Riley,
I am writing this upon receiving my CHL (transferred back to Linn County). On Reading the enclosed pamphlet I noticed the rules, regulations and the advice your department gives CHL holders. Two portions of the pamphlet stood out to me first one that read:
"Schools
Persons who possess valid concealed handgun licenses are not prohibited from carrying their weapons on school property."
Second:
"State Forest Lands
You may NOT possess loaded firearms on State Forest lands that have been designated by the Forester as "Designated Recreation Areas". These areas may include, but are not limited to campgrounds, camping areas, day use areas, trailheads, staging areas, and boat launch sites. (OAR 629-025-0050)"
The reason this stood out was because the last time I received this pamphlet several years ago the "schools" section was typed different then. I notified Sheriff Tim Muller at the time that the Oregon Court of Appeals heard on March 29, 2011, Oregon Firearms Educational Foundation V Board of Higher Education and Oregon University System A142974 and that they ruled in favor of Oregon Firearms Federation sighting that:
"Thus, the question here, as in Doe, is whether the challenged enactment--
7 OAR 580-022-0045(3)--represents the sort of exercise of "authority to regulate" that is
8 preempted by ORS 166.170(1). Although it is clear from the legislative history that the
9 legislature did not expressly contemplate whether a state agency's administrative rules
10 might be encompassed within the preemption of ORS 166.170(1), this particular rule
11 would seem on its face to be the type of regulation that was intended to be preempted.
12 Administrative rules, unlike internal employment policies, have the regulatory force and
13 effect of law."
…" Accordingly, the rule exceeds
10 the agency's authority, ORS 183.400(4)(b), and is invalid.
11 OAR 580-022-0045(3) held invalid.
1"
The Oregon Court of Appeals ruled that since Oregon Administrative Rules carried the "force of law" any OAR made, with respect to firearms, regulates them. If the municipality has not been "expressly authorized by state statute" (ORS 166.170) then their OAR is invalid.
I would like to know where in ORS does the State Legislative Body "expressly authorized by state statute", "the Forester" to regulate firearms through OAR 629-025-0050 shown in your pamphlet under State Forest Lands.
I believe there is none. The statute sighted supposedly giving authority is ORS 530.050. This statute gives the Forester the right to make OAR, just like ORS 351.070 allows the OUS to make OAR. No were in either statute does the State Legislative Body "expressly authorized by state statute" the regulation of firearms.
There are several examples where OAR's have been overturned or modified to comply with ORS 166.170.
One example is with ODFW. They admit on their website here: http://www.dfw.state.or.us/resources/hunting/big_game/regulations/weapons.as that: "In 2003, the Oregon Attorney General reviewed the statute and determined the Oregon Fish and Wildlife Commission (Commission) cannot limit what firearms can be carried or possessed during hunting seasons."
I contest that the section on State Forest Lands within your pamphlet is inaccurate and that OAR 629-025-0050 would not hold a test from the Attorney General or the Oregon Court System.
I hope you will take my argument seriously since I rather like camping and if I was barred from taking my firearm the result would be me not going.
I type all of this with the upmost respect for you and for the legacy you are continuing within the law enforcement community.
Sincerely,
...."
To my surprise I received a response. And a positive one at that.
Sorry it's all crumpled. It got wet in the mail box.
Eagle
This had just happened when I got my first CHL issued to me so it was a big deal as I was in college. Anyway, upon submitting my application I notified former Sheriff Tim Muller of Linn county that OFF had won in the form of an email.
In the course of moving from Linn to Marion county I updated my CHL and a year later I moved back to Linn. Upon updating my CHL (again) I noticed 2 things: one that Sheriff Muller was no longer Sheriff and two that the language in the pamphlet about schools had changed from "possibly might be illegal to carry on schools" to "there is no law prohibiting CHL on schools."
I was elated. So, I sent a letter to Sheriff Bruce Riley (current Linn County Sheriff) in regards to other OAR that I though was invalid, particularly the one about State Forest Land which read "may not possess firearms on State Forest Land that has been designated 'recreational' area" ie camping and such.
My letter read,
"Dear Sheriff Riley,
I am writing this upon receiving my CHL (transferred back to Linn County). On Reading the enclosed pamphlet I noticed the rules, regulations and the advice your department gives CHL holders. Two portions of the pamphlet stood out to me first one that read:
"Schools
Persons who possess valid concealed handgun licenses are not prohibited from carrying their weapons on school property."
Second:
"State Forest Lands
You may NOT possess loaded firearms on State Forest lands that have been designated by the Forester as "Designated Recreation Areas". These areas may include, but are not limited to campgrounds, camping areas, day use areas, trailheads, staging areas, and boat launch sites. (OAR 629-025-0050)"
The reason this stood out was because the last time I received this pamphlet several years ago the "schools" section was typed different then. I notified Sheriff Tim Muller at the time that the Oregon Court of Appeals heard on March 29, 2011, Oregon Firearms Educational Foundation V Board of Higher Education and Oregon University System A142974 and that they ruled in favor of Oregon Firearms Federation sighting that:
"Thus, the question here, as in Doe, is whether the challenged enactment--
7 OAR 580-022-0045(3)--represents the sort of exercise of "authority to regulate" that is
8 preempted by ORS 166.170(1). Although it is clear from the legislative history that the
9 legislature did not expressly contemplate whether a state agency's administrative rules
10 might be encompassed within the preemption of ORS 166.170(1), this particular rule
11 would seem on its face to be the type of regulation that was intended to be preempted.
12 Administrative rules, unlike internal employment policies, have the regulatory force and
13 effect of law."
…" Accordingly, the rule exceeds
10 the agency's authority, ORS 183.400(4)(b), and is invalid.
11 OAR 580-022-0045(3) held invalid.
1"
The Oregon Court of Appeals ruled that since Oregon Administrative Rules carried the "force of law" any OAR made, with respect to firearms, regulates them. If the municipality has not been "expressly authorized by state statute" (ORS 166.170) then their OAR is invalid.
I would like to know where in ORS does the State Legislative Body "expressly authorized by state statute", "the Forester" to regulate firearms through OAR 629-025-0050 shown in your pamphlet under State Forest Lands.
I believe there is none. The statute sighted supposedly giving authority is ORS 530.050. This statute gives the Forester the right to make OAR, just like ORS 351.070 allows the OUS to make OAR. No were in either statute does the State Legislative Body "expressly authorized by state statute" the regulation of firearms.
There are several examples where OAR's have been overturned or modified to comply with ORS 166.170.
One example is with ODFW. They admit on their website here: http://www.dfw.state.or.us/resources/hunting/big_game/regulations/weapons.as that: "In 2003, the Oregon Attorney General reviewed the statute and determined the Oregon Fish and Wildlife Commission (Commission) cannot limit what firearms can be carried or possessed during hunting seasons."
I contest that the section on State Forest Lands within your pamphlet is inaccurate and that OAR 629-025-0050 would not hold a test from the Attorney General or the Oregon Court System.
I hope you will take my argument seriously since I rather like camping and if I was barred from taking my firearm the result would be me not going.
I type all of this with the upmost respect for you and for the legacy you are continuing within the law enforcement community.
Sincerely,
...."
To my surprise I received a response. And a positive one at that.
Sorry it's all crumpled. It got wet in the mail box.
Eagle
