OAG 93-1

January 21, 1993

Don R. McCormick


Department of Fish & Wildlife Resources

Arnold L. Mitchell Bldg.

#1 Game Farm Road

Frankfort, Kentucky 40601

Dear Commissioner McCormick:

As Commissioner of the Department of Fish & Wildlife Resources (DFWR) you have requested a formal opinion from our office relative to the regulation of musseling in Kentucky. You state that the General Assembly has enacted legislation regulating musseling and assigning regulatory authority over musseling to the Department of Fish & Wildlife. You have enclosed copies of local ordinances of Hart County and the City of Munfordville which purport to regulate musseling within their respective jurisdictions. You specifically ask our office:

Whether local governments may legally regulate musseling at local levels when the Commonwealth has statewide laws on the same subject which are conflicting.

The Department of Fish and Wildlife Resources is an agency of state government with the authority for the enforcement of all laws and regulations pertaining to fish and wildlife. KRS 12.020 II, 11(c), KRS 150.015, KRS 150.021, and generally KRS Chapter 150.

Authority over all musseling activities in Kentucky is given by the legislature to the DFWR in KRS Chapter 150. KRS 150.520 broadly provides:

The department shall make such requirements by administrative regulations governing the taking of mussels as it may deem best for the proper enforcement of this chapter.

DFWR, by statute, may close mussel beds (KRS 150.520); license the buying of mussel shells or mussels in the shell (KRS 150.525); arrest persons violating statewide mussel protection laws and confiscate illegally taken mussels (KRS 150.110). All licensed musselers, by statute, must report in writing to the DFWR their annual take. KRS 150.510. The DFWR licenses commercial musseling in the Commonwealth. KRS 150.175(1)(f). The DFWR has extensively provided for the regulation of musseling activity in Kentucky. 301 KAR 1:085. These statutes and regulation amount to a comprehensive plan or scheme of the legislature to totally occupy the field of musseling regulation in furtherance of the public policies and purposes of the Commonwealth described in KRS 150.015.

Pursuant to the Home Rule statute KRS 82.082(1) a city may act in furtherance of a public purpose as long as the law does not conflict with a constitutional provision or state statute. City of Covington v. Court of Justice, Ky., 784 S.W.2d 180 (1990). KRS 82.082(1) permits a city to:

[E]xercise any power and perform any function within its boundaries ... that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or a statute.

KRS 82.082(2) also states that a city ordinance is:

[I]n conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes. . . .

Counties are also entitled to Home Rule pursuant to KRS 67.083(3)(h). This statute provides that a fiscal court may enact ordinances to:

[C]arry out governmental functions necessary for the operation of the county. Except as otherwise provided by statute . . . the fiscal court of any county may enact ordinances . . . in performance of the following public functions:

* * *

(h) Conservation, preservation and enhancement of natural resources including . . . wildlife. . . .

KRS 67.083(3)(h).

Ordinances adopted by both the City of Munfordville and the County of Hart outlaw the taking of mussels within their respective borders and provide fines for violations. The Hart County ordinance purports to license and bond mussel shell harvesters, and even prescribe permissible methods of taking. All of these ordinances are beyond the Home Rule authority of a city or county and thus the local musseling ordinances should not be enforced.

This office has rendered consistent opinions on the subject of a city ordinance outlawing activity already covered by criminal statute in OAG 90-95, and specifically as to a county ordinance that addressed a wildlife resource activity already covered by statute in OAG 83-46.

In conclusion, since state statutes and regulations have preempted the field of musseling in Kentucky we find that the Hart County and City of Munfordville ordinances are invalid.

Sincerely yours,

Chris Gorman

Attorney General

Lynne Schroering

Assistant Attorney General