State Parks

[tionico]

CEF... 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.

not quite. What the AG's office transmitted to Mayor Nickels wat that, for him to proceed with his intended ban, he would be in breach of the law, and his ban would be void. I believe there was also language to the effect that, should they attempt to prosecute, they (the City of Seattle) would face legal repercussions for the attempt. It was far more rigourous than "we will not press" any charges, it was "you can't do that, it is illegal, and we won't let you so don't try".

Correct, you are talking about Oregon, but in general, the function of the state's AG is pretty much the same in all the states. Further, you are correct in stating that if Parks pressed the AG's office for an"opinion" the response would be fairly binding.... Parks would indeed be "stupid" to proceed in contrast to a stated opinion by the AG. Whether a private citizen could put the question is another matter, and that for both states. I would think that the "redress of grievance" right should put a citizen in that position, but whether the AG's office being approached for a ruling or opinion, or an actual matter at bar (Appeals Court, I am told above) would be necessary I am not sure.

 

[tionico]

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.

ob1, what is missing here is the simple fact that this statue (ORS) is passed and made into law by going through the state's legislative process, and signed by the governor. The "checks and balances" bit comes into play, and our elected officials are, in theory at least, listening to we the people and acting in our best interests.

When we consider a lesser state authority, such as State Police, Forestry, Parks, they are all appointed or purchased positions, and lack the authority to promulgate laws on their own, except as consistent with state laws, as passed above.

In other words, the state statutes, passed as above, lay claim to the supreme right to decide what laws bind the people. No lesser agency can rise above that right. In short, Parks, in determining no firearms in the lands under their control, overstep their bounds by going counter to what the legislature have determined to be the binding and overarching law. Parks have not gone through the process of being elected to represent the will and good of the people, thus are not competent to overthrow laws that are. Yes, Parks is part of the state government, but subject to the laws enacted by the lawmaking body with the higher authority.

Else we'd have every state agency out there vying to make rules binding us in every aspect of our lives.. the State Police would make one set of firearms laws, Parks another, Forestry yet another, Fire Marshall's office another.... the elected lawmakers say "no, WE and we only have that right". I cannot imagine how barmy it would be if every county had a different set of rules about who can carry what, when, how, and where. "Let's see, now I'm in Washington County, I can carry concealed with my permit, but not open. Now I'm in Yamhill, I can carry open but not concealed. Multnomah I can't have it in the car loaded, no matter WHAT piece of paper I've got in my pocket. We'd have a scenario where criminals are coming out the woodwork, and EVERYONE would have their tour of duty in the Crowbar Hotel..... nuts. The legislature fixed that by saying "hey, guys, WE are the only ones can decide that sort of thing, so its the same everywhere in the state.

What I wonder, though, is HOW some of the cities get their "right" to say "no guns here". And why has that not been challenged? THAT is far more insidious than the signs at the state parks.

 

[CEF1959]

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.

That's one reason why it's an open question. ORS 166.170(1) seems to reserve all regulation of firearms to the LEGISLATURE, suggesting that state AGENCIES may not regulate them. Then you have ORS 166.170(2) suggesting that the legislature intended only to ban local governments, not state agencies. The legislative history of ORS 166.170 supports this latter reading. But the plain language of the statute supports the former. Then you've got the issue of whether an employer (even a state agency) may set rules controlling firearms on its premises as an employer and controller of premises. In any event, banning guns from state parks by administrative rule seems inconsistent with ORS 166.170(1), but it's not settled law.

What I wonder, though, is HOW some of the cities get their "right" to say "no guns here". And why has that not been challenged? THAT is far more insidious than the signs at the state parks.

It's statutory in Oregon: ORS 166.173 expressly authorizes local governments to regulate the possession of loaded firearms in public places. The good news is that under ORS 166.173(2)(c), those local ordinances don't apply to CHL licensees.

See what I mean in saying it's not so simple?

 

[tionico]

It's statutory in Oregon: ORS 166.173 expressly authorizes local governments to regulate the possession of loaded firearms in public places. The good news is that under ORS 166.173(2)(c), those local ordinances don't apply to CHL licensees.

See what I mean in saying it's not so simple?


righteeoh, it sure ain't simple. Which goes to show once more the incredible wisdom and judgement employed by the framers of the Constitution: the right to KEEP and BEAR arms shall not be infringed. Simple, straightforward, applies everywhere equally. How simple is that?

But, leave it to fickle men with private agenda to complicate, control, dictate, reinterpret, befuddle, restrict..... meanwhile we are left with the situation that it is now very easy to happen to fall afoul of the law, and become criminals in one city for doing what is totally lawful in another, and ought to be universally acceptible and legal.

 

[ob1]

tionico
I understand that the impostion of a Forest Department regulation would be subordinate to a contrary legislative action and even a finding / opinion by a state AG. However, that would only apply where such an adversarial instrument existed. I do not see that here. There is no limiting mechanism placed on any state agency, that I can see anywhere in this statute.
Just because a state legislature approves limitations on lower non-state level entities, does not mean that it is automatically assumed to apply to a state agency. Any such limitation on the state itself or a state agency would be specifically identified in the language of the statute. I do not see it here.
When you think about it, you can see plenty of examples of "applies to anybody but us" legislation. Congress does it all the time !
I think what has happened here is that the legislature has deliberately left this window open to the state to avoid creating complications for itself.

cef1959
The distinction you note between subsections 1 & 2 are interesting. The way I see the intent of these sections is this:
Subsection 1.) We, the Oregon Legislature (representing the State of Oregon), are vested with the authority to enact controls on the possession / use of firearms in Oregon. There is no statement of exclusion or inclusion of any state entity. This statement simply serves to declare that the legislature (the state) is empowering itself.
Subsection 2.) Governmental entities other than and below the state level shall not have this authority, except as identified elsewhere by the legislature.
Usually, when one subsection follows another, the latter section serves to modify or further define the prior. As in this example; the statement identifying who has the authority (the state) is modified by the latter by naming the agencies that do not. (ie cities, counties,etc) State agencies are not in that defining list. The omission of state agencies in the list of section 2, serves to exclude them from that modification to section 1.
Here in lies the quandry. Is a state agency, acting on behalf of itself and the state, not considered to be acting as a physical extension of the legislature ? Is that agency therefore not enjoined to the authority created by this statute ?

Regardless of whether this Forest Service / Parks reg. remains intact or is criminally enforceable due to the statute, a more tangible problem remains... Since this reg. does exist, when average Joe is confronted by a crusading & myopic officer / ranger, he would be subject to firearm confiscation. I am sure there are several persons on this site, that can attest to the fact that being on the right side of a law can have little to do with getting a confiscated weapon returned.
Sure, he would have a right to his property. The unhappy truth in our country today is that taking advantage of your rights probably means hiring an attorney. The value of his favorite carry gun will quickly be paled in comparison to the cost of retaining I. A. Shiester and Associates.

 

[Wyrd0]

Greetings all,
Sorry my first post is to raise a zombie thread, but I found your forum trying to research the issue of this thread. Apparently, the OAP 629-025-0050 issue isn't settled. From the Linn County Sheriff's page I found this: FAQ

"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)"

So has this been settled or is it still waiting for a 'test case'?

Thanks in advance for any info you may have on this.

 

[Kevatc]

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

Anyone have any examples of National Forest property where a gun is prohibited even if the person has a valid CHL? I am guessing a local Forest Service buidling is considered federal property and therefore no guns period ....????

 

[drew]

Greetings all,
Sorry my first post is to raise a zombie thread, but I found your forum trying to research the issue of this thread. Apparently, the OAP 629-025-0050 issue isn't settled. From the Linn County Sheriff's page I found this: FAQ

"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)"

So has this been settled or is it still waiting for a 'test case'?

Thanks in advance for any info you may have on this.

I'd bet the OAR is not valid because of state preemption. ODFW removed regs prohibiting the arms you could carry during hunting season. I'm not aware of a test case though. Looks like the OAR hasn't been updated since the mid-90's either.

Anyone have any examples of National Forest property where a gun is prohibited even if the person has a valid CHL? I am guessing a local Forest Service buidling is considered federal property and therefore no guns period ....????

Federal law prohibits firearms in buildings where federal employees work. The I'm not aware of anyplace else in a NF where carrying is illegal.

 

[Kevatc]

Federal law prohibits firearms in buildings where federal employees work. I'm not aware of anyplace else in a NF where carrying is illegal.

Just as well I can't carry in the local NF Headquarters. The douchenstein I have to deal with to get firewood permits could try the patience of Mother Teresa.

 

[hermannr]

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.

If you want an AG opinion you need someone in government to request the opinion...like a sympathetic legislator or senator. You can write the request, but you have to have someone in government submit it to the AG.

 

[hermannr]

Anyone have any examples of National Forest property where a gun is prohibited even if the person has a valid CHL? I am guessing a local Forest Service buidling is considered federal property and therefore no guns period ....????

We are talking about STATE forestry lands...nothing to do with USFS

 

[hermannr]

I'd bet the OAR is not valid because of state preemption. ODFW removed regs prohibiting the arms you could carry during hunting season. I'm not aware of a test case though. Looks like the OAR hasn't been updated since the mid-90's either.


Federal law prohibits firearms in buildings where federal employees work. The I'm not aware of anyplace else in a NF where carrying is illegal.

Actually, that is an urban myth that Federal workers like to promote...if you read the law there is an exemption for legally carried weapons, even a very specific legal exemption when associated with hunting. The only places that are totally prohibited BY SPECIFIC law are Federal Court houses and PO's...and teh PO law is being challenged.

 

[drew]

Actually, that is an urban myth that Federal workers like to promote...if you read the law there is an exemption for legally carried weapons, even a very specific legal exemption when associated with hunting. The only places that are totally prohibited BY SPECIFIC law are Federal Court houses and PO's...and teh PO law is being challenged.

The law does say "other lawful purposes" but how we interpret that and how the federal agencies do is different. I'll wait until I see a favorable ruling on Bonidy v USPS or a similar case. I have no desire to get charged with a felony and have to answer in federal court.

The only place I didn't carry in the last couple of national parks I visited was the visitor center.

 

[Wyrd0]

I'd bet the OAR is not valid because of state preemption. ODFW removed regs prohibiting the arms you could carry during hunting season. I'm not aware of a test case though. Looks like the OAR hasn't been updated since the mid-90's either.

That sounds reasonable to me as well, as has been mentioned in thread. I was just hoping someone else had an official opinion or ruling on it. I don't want to be the test case, but not being armed where the wild animals live & cel phones don't work is a bad option too, IMO.

 

[Kevatc]

We are talking about STATE forestry lands...nothing to do with USFS

Yes, the OP did talk about state lands but someone came on later citing law on carry - no carry places one of which mentioned national forests. The only place I could figure that had anything to do with NF property would be NF offices which are federal offices. Look back through the thread and you will see what I am talking about.

 

[Mark W.]

Actually the OP was talking about a State Park. Not State Forest or National Forest

 

[beavertonbuck]

I e-mailed them and this is the response I got:

Richard –
I have talked with our recreation staff about this and we realize that our OARs do not address the issue of concealed carry permits and, thus, they say our agency's interpretation of the rules is that a person can carry a concealed weapon on state forestlands. The OAR is also imperfect in that it does say loaded firearms are not allowed in designated recreation areas, which conflicts with the permissions granted with a concealed weapons permit and the agency needs to address this when the rules are next revised.

I hope that helps.

 

[Wyrd0]

Well that helps set my mind at ease, thank you.