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State Parks

Discussion in 'Legal & Political Archive' started by Mutoman, Jun 9, 2009.

  1. Mutoman

    Mutoman North Bend Active Member

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    I did a forum search and was unable to locate related information so I'll make a new post.

    I was hiking around the Coos County State Parks this weekend; I noticed a sign at the Cape Arago trail system that stated "no firearms" or "hunting". Hunting seems reasonable, but I thought firearms were permitted in state parks.

    Any ideas?
     
  2. edhill

    edhill salem, OR New Member

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  3. SheepDog223

    SheepDog223 Salem Well-Known Member

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    There is a rest area between Lincoln city and Rickreall that has a sign up saying "no firearms" First I called a CCL instructor to make sure I knew what I thought I knew. Then I called the guy in charge of that area. He said it was illegal to have handguns in the park when the sign was put up and said when that sign wares out it will be updated with the current law. I don't see why they can't hammer a 2x4 over it and paint it brown.
     
  4. candyman

    candyman Scappoose, OR Active Member

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    ok this is about as clear as mud

    so whats the verdict on barview
     
  5. edhill

    edhill salem, OR New Member

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    Armin Rule 629-025-0050 says no guns in state parks but looking up the authorizing state statute ORS 530.050 witch did not expressly authorize the Department of Forestry to regulate firearms. there for this rule is in conflict with ORS 166.170 and there for the rule is void


    629-025-0050

    Designated Recreation Areas.

    (1) State forest lands designated by the Forester as "Designated Recreation Areas" may include, but are not limited to campgrounds, camping areas, day use areas, trailheads, staging areas, and boat launch sites. Maps showing the Designated Recreation Areas shall be kept on file at the State Forester's office and the applicable District office, and shall be available for public inspection during normal business hours.

    (2) General Forest Recreation Rules as outlined in OAR 629-025-0040 shall be applicable to Designated Recreation Areas. In addition to those rules, the following rules shall apply:

    (3) Occupancy and Use:

    (a) At areas where camping is permitted no person shall camp longer than 14 days out of any 28 day period at a designated recreation area.

    (b) Leaving personal property unattended will be considered camping for the purposes of determining the length of stay at a given site.

    (4) Firewood: No person shall collect firewood within the boundaries of any designated recreation area.

    (5) Firearms, Weapons, Explosives: Within a designated recreation area no person shall:

    (a) Hunt, pursue, trap, kill, injure, molest, or disturb the habitat of any bird or animal;

    (b) Discharge any firearm, pellet gun, bow and arrow, slingshot or other weapon capable of injuring any person, bird, or animal;

    (c) Possess any loaded firearms; or

    (d) Discharge or cause to be discharged any firecrackers, explosives, torpedoes, rockets, fireworks, or other substances which could be harmful to visitors or resources without written permission of the Forester.

    (6) Property and Resources: No person shall mutilate, deface, damage, or remove any table, bench, building, sign, marker, monument, fence, barrier, fountain, faucet, traffic recorder, or other structure or facility of any kind in a designated recreation area.

    (7) Parking: Automobiles, trailers, or other vehicles shall be parked only in designated parking areas.

    (8) Animals: The owner is responsible for the disposal of the animal's waste within designated recreation areas.

    (9) Offensive Behavior: No person shall use abusive, threatening, boisterous, vile, obscene, or indecent language or gestures, or engage in demonstrations, disturbances, or riotous behavior in any designated recreation area.
    (10) Excessive Noise: No person shall operate or use any noise-producing machine, vehicle device, or instrument in such a manner that is disturbing to other visitors


    530.050 Management of lands acquired; powers of forester; rules
    .
    Under the authority and direction of the State Board of Forestry except as otherwise provided for the sale of forest products, the State Forester shall manage the lands acquired pursuant to ORS 530.010 to 530.040 so as to secure the greatest permanent value of those lands to the state, and to that end may:

    (1) Protect the lands from fire, disease and insect pests, cooperate with the counties and with persons owning lands within the state in the protection of the lands and enter into all agreements necessary or convenient for the protection of the lands.

    (2) Sell forest products from the lands, and execute mining leases and contracts as provided for in ORS 273.551.

    (3) Enter into and administer contracts for the sale of timber from lands owned or managed by the State Board of Forestry and the State Forestry Department.

    (4) Permit the use of the lands for other purposes, including but not limited to forage and browse for domestic livestock, fish and wildlife environment, landscape effect, protection against floods and erosion, recreation, and protection of water supplies when, in the opinion of the board, the use is not detrimental to the best interest of the state.

    (5) Grant easements, permits and licenses over, through and across the lands. The State Forester may require and collect reasonable fees or charges relating to the location and establishment of easements, permits and licenses granted by the state over the lands. The fees and charges collected shall be used exclusively for the expenses of locating and establishing the easements, permits and licenses under this subsection and shall be placed in the State Forestry Department Account.

    (6) Require and collect fees or charges for the use of state forest roads. The fees or charges collected shall be used exclusively for purposes of maintenance and improvements of the roads and shall be placed in the State Forestry Department Account.

    (7) Reforest the lands and cooperate with the counties, and with persons owning timberlands within the state, in the reforestation, and make all agreements necessary or convenient for the reforestation.

    (8) Require such undertakings as in the opinion of the board are necessary or convenient to secure performance of any contract entered into under the terms of this section or ORS 273.551.

    (9) Sell rock, sand, gravel, pumice and other such materials from the lands. The sale may be negotiated without bidding, provided the appraised value of the materials does not exceed $2,500.

    (10) Enter into agreements, each for not more than 10 years duration, for the production of minor forest products.

    (11) Establish a forestry carbon offset program to market, register, transfer or sell forestry carbon offsets. In establishing the program, the forester may:

    (a) Execute any contracts or agreements necessary to create opportunities for the creation of forestry carbon offsets; and

    (b) Negotiate prices that are at, or greater than, fair market value for the transfer or sale of forestry carbon offsets.

    (12) Do all things and make all rules, not inconsistent with law, necessary or convenient for the management, protection, utilization and conservation of the lands.

    ORS 166.170 State preemption.
    (1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the
    sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element
    relating to firearms and components thereof, including ammunition, is vested solely in the Legislative
    Assembly.
    (2) Except as expressly authorized by state statute, no county, city or other municipal corporation or district
    may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or
    prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or
    any element relating to firearms and components thereof, including ammunition. Ordinances that are
    contrary to this subsection are void. [1995 s.s. c.1 §1]
     
  6. Trlsmn

    Trlsmn In Utero (Portland) Well-Known Member

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    530.050 paragraph 12 also warrants highlighting. It's possible that these rules are not laws, so breaking them would only get you kicked out not arrested, this is not legal advice though as this could be wrong.
     
  7. Sawdust

    Sawdust Bull Mountain(Tigard), OR Gold Supporter Gold Supporter

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    This is from Washington County Sheriff's website regarding CHL's. While not definitive they do omit State parks. Also about a year ago I had this same question and called the CHL office in Washington Co. and they said that they know of NO prohibition against carrying in a State park. So far I have not had any problems. Knock wood!

    :twocents:


    14. Even with a concealed handgun license, where can I not carry a firearm?

    Oregon law provides very few limits on where a person with a Concealed Handgun License (CHL) can carry a firearm, and federal laws contain a few more prohibitions. Even if you have a Concealed Handgun License, you cannot carry a firearm on any of the following properties:

    * Federal facilities - federal courthouses, social security offices, in secured areas of airports, and on airplanes
    * National forests marked or posted by signs prohibiting all firearms
    * Indian reservations or Indian property - you may not carry a firearm concealed without the written permission of the tribal judge; this may also apply to certain casinos on Indian lands
    * Courts - in a courtroom, jury room, judge's chambers or adjacent areas that the presiding judge determines should be free of firearms to ensure the safety of the litigants, court personnel, witnesses and others
    * Private property where the owner prohibits firearms possession
     
  8. edhill

    edhill salem, OR New Member

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    ORS 166.170 State preemption.
    (1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the
    sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element
    relating to firearms and components thereof, including ammunition, is vested solely in the Legislative
    Assembly.
    (2) Except as expressly authorized by state statute, no county, city or other municipal corporation or district
    may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or
    prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or
    any element relating to firearms and components thereof, including ammunition. Ordinances that are
    contrary to this subsection are void. [1995 s.s. c.1 §1]


    If it is not expressly authorized by state statute no one but the Legislative
    may regulate firearms
     
  9. CEF1959

    CEF1959 Willamette Valley, Oregon New Member

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    Edhill is probably correct, but it's a gray area in the law right now. The question is whether the Parks and Recreation administrative rule he cites is valid in light of the preemption statute (ORS 166.170) he cites.

    Parks and Recreation have plenary authority to control the state parks they manage, meaning they don't need specific statutory authorization to promulgate management rules. But the preemption statute arguably requires explicit statutory authority to regulate firearms possession in state parks, and there is no such statutory authority. The administrative rule is, therefore, probably invalid.

    But it's an open question under Oregon law whether that preemption statute bars a state agency from controlling the premises under its control. I would have a tough time defending the P & R regs here, even though it may be permissible (for example) for a school to ban parents and employees from bringing guns into the facilities or for a state agency to prohibit people from bringing guns into the workplace.

    If someone is interested in taking this on without flouting the administrative rule, there is a mechanism under the Oregon Administrative Procedures Act to challenge the validity of any administrative rule just by filing a challenge directly in the Oregon Court of Appeals. Under a series of Oregon cases, you'd probably be able to recover your attorney fees if you won too. And you may find the Oregon Attorney General conceding without a fight on this issue. Could be easy pickings for someone willing to make the challenge.
     
  10. tionico

    tionico Thurston County Well-Known Member

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    Interesting route, that challenge in the C of A. Perhaps someone on here who is an attorney could take that on as a "pet project", or maybe someone on here who has a good friend who happens to be an attorney could form a "task force". At a hundred bucks plus the hour for a cheap attorney, the citizen's right for redress could come rather dear rather quickly. A quick cost-benefit analysis for a private individual might come up wanting..... but yet, it does seem a worthy project to take on.
     
  11. CEF1959

    CEF1959 Willamette Valley, Oregon New Member

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    Under a line of cases that began with Deras v. Myers, the Oregon Supreme Court established the principle that a citizen who successfully vindicates a public interest by challenging State action may recover his attorney fees from the State. But you have to wait until the end of the case to get them, and even then it's speculative, because the State has an incentive to argue that Deras v. Myers doesn't apply. Given the fact that the Parks & Rec administrative rules appear to be low hanging fruit, you should be able to find a good lawyer to take a Deras v. Myers chance, banking on getting paid only if it comes from the other side.

    But you don't need a lawyer to do this. Any citizen can file the rule challenge in the Court of Appeals. There are some technical formalities you need to meet in filing the petition correctly, so some sort of guidance would be recommended. But you could probably find a lawyer who would be willing to either do the thing pro bono or at least help "coach" for free a private citizen do it himself. Just don't go to some whacked out numb-skull. There are a lot of bad lawyers out there who don't know what they're doing, and I hate to say it, but some of the worst are those who like to travel in right-wing conspiracy theory/anti-government circles.

    Not that there are any of those types around here, mind you....
     
  12. tionico

    tionico Thurston County Well-Known Member

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    Interesting.. I'd have thought a court as high as Appeals level would restrict actions to those who've been accepted at the bar.... private citizens functioning at that level are rare..... but, that's fine (and, I believe, as it should be).

    Perhaps another tack would be to address the matter to the state's Attorney General, pointing out the inconsistency, the Deras case's precedent and application, and call for a specific ruling. If he says (like Washington's has to Mayor Chump Change Nickels on his preemptive gun ban attempt) Parks are out of line, then forward a copy of his analysis to Parks and demand they change their code to reflect that... by removing the signs. No need to make a public fuss, demand notoriety, and all that.... just take the dumb signs down. All that would cost a half hour to draft the letter to the AG, another to draft the one to Parks director, and two postage stamps. Little enough in the pot.

    As to the proliferation of bad lawyers, boy are you on that one!! Seems they've had an edjamicayshun a whole lot like the crowd that are now running most of the state and local offices, particularly places like environmental, planning and development, and education. Seems they've an agenda up their sleeves, and as they go about their "business" (which, in reality is none of theirs, in most cases) they do so with slipshod attitudes, pressing their agenda even in the face of clear laws to the contrary.... leading to challenges which cost both the citizens and the state a lot of time and money. Oh, and make the lawyers fat. I do believe its all the result of today's uber-liberal colleges teaching what they do (and don't). Common sense and high standards of performance and integrity are amongst those things not taught. Largely....
     
  13. nwwoodsman

    nwwoodsman Vernonia Bronze Supporter Bronze Supporter 2015 Volunteer

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    So when you're attacked by cougar, rapist, drug addict, etc, you can use your firearm to pistol whip 'em but not shoot them? I don't think so. Sometimes it's better to ask for forgiveness than to ask for permission.
     
  14. edhill

    edhill salem, OR New Member

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    it is not an open question under Oregon law whether that preemption statute bars a state agency from controlling the premises under its control.
    OFF has already done the work on this
    The state Forestry Dep has told them that The rule is void and is no longer enforced. :thumbup:
     
  15. CEF1959

    CEF1959 Willamette Valley, Oregon New Member

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    The fact that OFF has "done the work on this" and that the Forestry Dept. had "told them" the Forestry Dept. rule is void and no longer being enforced is not the same as closing the question. Believe me. It's alive. There's a case before the Oregon Court of Appeals right now regarding the Medford School Distict's prohibition on weapons as it relates to a teacher's concealed carry at work.

    This is more complex than you think.
     
  16. CEF1959

    CEF1959 Willamette Valley, Oregon New Member

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    It doesn't really work that way.
     
  17. tionico

    tionico Thurston County Well-Known Member

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    The AG's office CAN, and does make a ruling, or analysis, of application of a particular law as relates to a given situation. This would be a perfect example of a situation where they could issue a ruling of how THEY will interpret the law under a this situation. Bottom line: it would be the AG's office that would ultimatly decide whether to prosecute, or escalate from a lower court, any charges laid under these circumstances. Thus they can make a decision in advance by reviewing the specific laws involved, and determine ahead of time how, or whether, they would persue a case. Washington's AG have already informed Seattle's Mayor Nickels that, should he persist in his threatened city-wide gun ban on public property, it would no against the law, and the executive order would be set aside and nullified. This is the result of examining the state's preemption law as it relates to a city establishing such a prohibition. Precisely the same situation as Oregon's preemption law and whether it prevents Parks from placing a gun ban on lands under their control. IF the AG says Seattle's mayor lacks the authority to do that, and any charges are laid against anyone for "violating" the null law, no local prosecutor in the state will press any such charges in the event some activist cop arrests someone for "violating' the law that is determined illegal. Washington's AG has already determined this ahead of any arrests, so the matter is settled. Nickels might think otherwise.... but it is the courts, at the end of the day, that determine whether a person is to be punished in a given situation, and this will not happen because the AG has already decided it won't. Oregon's AG can do the same thing..... or decide they WILL press charges in these cases. Someone should ask that office for a ruling or interpretation. It would set a precedent in the event of any arrests or charges for "violating" this illegal law.

    Of course, the best way would be for the AG to inform Parks that this prohibition is contrary to law, and they need to change their signage to put the public at rest and settle the matter.
     
  18. ob1

    ob1 49th parallel Well-Known Member

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    ) Except as expressly authorized by state statute, no county, city or other municipal corporation or district
    may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or
    prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or
    any element relating to firearms and components thereof, including ammunition. Ordinances that are
    contrary to this subsection are void. [1995 s.s. c.1 §1]

    Can someone explain something here.....The above 166.170 preemption subsection above, places limits on the authority of County, City and Municipal entities. Where in this Statute does it specifically place limits on or even mention the power of State entities ?

    It occurs to me that if there was an original intent in the drafting of this statute to limit the States own enforcement powers in this area, it would have been specifically mentioned in the body of the text (just as it was outlined for the lower City, County and Municipal entities)

    State statute trumps a local ordinance, just as the Federal code would trump the States authority. I think that relying on "Except as expressly authorized by state statute" is weak at best. I would think that the first argument could be, that since the "State" is so obviously omitted from the language of this subsection, it does not apply to State agencies.

    What am I missing here ?
     
  19. CEF1959

    CEF1959 Willamette Valley, Oregon New Member

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    The statute you quoted was ORS 166.170(2). It's ORS 166.170(1) that arguably applies to state agency administrative rules, such as those promulgated by Parks & Rec:

    ORS 166.170 State preemption.
    (1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the
    sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element
    relating to firearms and components thereof, including ammunition, is vested solely in the Legislative
    Assembly.
     
  20. CEF1959

    CEF1959 Willamette Valley, Oregon New Member

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    This is an incorrect statement of Oregon law. The example you cite is from Washington state, understandable, since that's where you live. But you can't assume it's the same in both states. But the example you cite doesn't support the statement anyway. In that case, the AG advised a political subdivision in Washington that his office would not defend the rules that were in place regulating firearms. The AG does not "issue rulings" in Oregon (or Washington, for that matter, but here we're talking about Oregon). He advises state agencies, either informally or through formal AG Opinions. He might, if asked by Parks and Rec., advise Parks and Rec. that his office will not defend the agency's administrative rules. In that case, Parks would be pretty stupid to try to enforce its rules. Or, if his office has previously advised that the rules were valid, he might issue an opinion retracting that earlier advice. But he's not going to "make a ruling" in response to a request or complaint by a citizen.

    This is what I meant in saying it's more complicated than you think.