Conservation and Natural Resources

Chapter 220-1-3

ALABAMA DEPARTMENT OF CONSERVATION

AND
NATURAL RESOURCES
ADMINISTRATIVE CODE
GENERAL PROVISIONS
CHAPTER 220-1-3
PETITION FOR ADOPTION OF RULES

TABLE OF CONTENTS

220-1-3-.01

Petition For Adoption Of Rules

220-1-3-.01

Petition For Adoption Of Rules.

(1) Any person who wishes to propose that the

Department of Conservation and Natural Resources adopt, amend, or
repeal any rule shall submit said proposal in the following form:
PETITION FOR ADOPTION OF RULE
1.

Petitioner
Name: ___Eddie Maxwell___________________________________
Address: ___[edited out____________
Phone: ___[edited out]_____________

2.

Character of Change
I propose that the Department of Conservation and Natural Resources

A. ( ) adopt the following new rule.

B. ( ) amend Rule___________________as follows.
C. (X ) repeal Rule__220-2-.12 _Game Bag, Hunting Coat, Etc., Shall be Open to Inspection__in total.

3.
Text of Proposed Rule
If you checked box "A" above, type the rule you propose.
If you checked box "B" above, type the currently effective
rule, adding any proposed language. Proposed new language should

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Chapter 220-1-3 Conservation and Natural Resources

be underlined and proposed deletions should be stricken through.
If you checked box "C" above, skip this and go to Part 4.
4.

Purpose of Change

Briefly describe what the effect of this change will be, and
why you believe the change should be made.
The rule violates our constitutions.
5.

Signature

Eddie Maxwell
Petitioner

12/31/2015____________________
Date [corrected to 12/31/2015 em]

(2)
The Department shall consider the petition, and
shall within sixty (60) days after submission of the petition,
either deny the petition in writing on the merits, stating its
reasons for the denial, or initiate rulemaking proceedings in
accordance with Code of Alabama 1975, 41-22-5.
Author:
Statutory Authority: Code of Ala. 1975,9-2-12, 41-22-8.
History: Filed September 30, 1982.

Supp. 6/30/93

1-3-2

Petition for a declaratory ruling by the Alabama Department of

Conservation and Natural Resources on the validity of Department rule

220-2-.12 Game Bag, Hunting Coat, Etc., Shall be Open to Inspection.

220-2-.12 Game Bag, Hunting Coat, Etc., Shall be Open to Inspection
(1) Pursuant to the Code of Alabama, 1975, Sections 9-11-259 and 9-11-85, which provided in
effect that all game birds, animals or fish taken or killed in this State must at all times be carried
or transported openly and that all game birds, animals or fish carried or transported in an illegal
manner shall be confiscated and disposed of under regulations by the Commissioner; any live
box, holding box, game bag, hunting coat, camping equipment, or like receptacles, or any
automobile or boat used for the carrying or holding of any fish, game birds, or game animals or
any gun or fishing tackle used in hunting or fishing shall be subject to inspection by officers of
the Department of Conservation and Natural Resources at all times upon proper identification of
said officer. Any person who refuses to allow inspection of the above named articles shall be in
violation of this regulation and shall be punished as provided by law.
Petition is submitted in the absence of the required rules prescribing
the form of such petitions and the procedure for their submission,
consideration and disposition, or prescribing the circumstances in
which rulings shall or shall not be issued (C.O.A. Section 41-22-11(a)).

220-1-2-.01 Declaratory Rulings.

(1) The Department may issue declaratory rulings to any person substantially affected by a
Rule with respect to the validity of the Rule, or with respect to the applicability to any
person, property, or state of facts of any rule or statute enforceable by the Department, or
with respect to the meaning and scope of any order of the Department. Such rulings shall
be issued provided:
(a) The petitioner makes his request in writing.

Petitioner Eddie Maxwell (petitioner) does hereby request in writing the Alabama Department of
Conservation and Natural Resources (Department) to issue a declaratory ruling on the validity of
rule 220-2-.12 Game Bag, Hunting Coat, Etc., Shall be Open to Inspection.
(b) The petitioner shows that he is substantially affected by the Rule in question.

Petition for repeal of the rule was submitted in compliance with Department rule 220-1-.03 by
the petitioner on December 31, 2015. Petitioner held that the rule violates our constitutions. The
petition for repeal of the rule was denied in writing by Commissioner Gunter Guy in a letter to
the petitioner dated January 22, 2016.
Petitioner's fundament rights to be free from unreasonable and unwarranted search and seizure as
enumerated in the Constitution of the United States of America, Amendment Four and the
Constitution of Alabama 1901, Article I, Section 5 are substantially affected by the rule.

" It must be recognized that whenever a police officer accosts an individual and
restrains his freedom to walk away, he has "seized" that person. And it is nothing
less than sheer torture of the English language to suggest that a careful exploration
of the outer surfaces of a person's clothing all over his or her body in an attempt to
find weapons is not a "search." Moreover, it is simply fantastic to urge that such a
procedure performed in public by a policeman while the citizen stands helpless,
perhaps facing a wall with his hands raised, is a 'petty indignity'. It is a serious
intrusion upon the sanctity of the person, which may inflict great indignity and arouse
strong resentment, and it is not to be undertaken lightly."
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)

"Such a holding is entirely consistent with our decision in Florida v. Royer, 460 U.S.
491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), where we held that when an officer, without
reasonable suspicion or probable cause, approaches an individual, the individual has a
right to ignore the police and go about his business. Id., at 498, 103 S.Ct. 1319. And any
`refusal to cooperate, without more, does not furnish the minimal level of objective
justification needed for a detention or seizure.' Florida v. Bostick, 501 U.S. 429, 437, 111
S.Ct. 2382, 115 L.Ed.2d 389 (1991).
Ex parte James, 797 So. 2d 413 - Ala: Supreme Court 2000

Code of Alabama 1975

Section 13A-6-25

Criminal coercion.
(a) A person commits the crime of criminal coercion if, without legal authority, he
threatens to confine, restrain or to cause physical injury to the threatened person or
another, or to damage the property or reputation of the threatened person or another with
intent thereby to induce the threatened person or another against his will to do an
unlawful act or refrain from doing a lawful act.
(b) Criminal coercion is a Class A misdemeanor.
(Acts 1977, No. 607, p. 812, 2125.)

(c) Sufficient facts are supplied in the request to permit the Department to make a
valid determination.

Petitioner's fundament rights to be free from unreasonable and unwarranted search and seizure as
enumerated in the Constitution of the United States of America, Amendment Four and the
Constitution of Alabama 1901, Article I, Section 5 render the rule facially invalid. The standard
for allowing an investigative stop (a "Terry stop") is whether there is a reasonable suspicion that
"the person being stopped has engaged in some type of criminal activity."
" it is necessary "first to focus upon the governmental interest which allegedly justifies
official intrusion upon the constitutionally protected interests of the private citizen," for

there is "no ready test for determining reasonableness other than by balancing the need to
search [or seize] against the invasion which the search [or seizure] entails." Camara v.
Municipal Court, 387 U. S. 523, 534-535, 536-537 (1967). And in justifying the
particular intrusion the police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant
that intrusion."
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)

"The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968), held that "a police officer may, in appropriate circumstances and in
an appropriate manner, approach a person for purposes of investigating possible criminal
behavior even though there is no probable cause to make an arrest." 392 U.S. at 22, 88
S.Ct. at 1880. The standard for allowing a Terry stop is whether there is a reasonable
suspicion that "the person being stopped has engaged in some type of criminal activity."
Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So.2d 1282
(Ala.1986)."
Ex parte Carpenter, 592 So.2d 627, 629 (Ala.1991).
Petitioner holds that it is well settled that searches and seizures unsupported by a warrant or
probable cause are unconstitutional outside of well-established exceptions recognized under the
law.
Notwithstanding the United States Supreme Court's assertion that its cases on the subject
of the extent of a search which may be made without a warrant following a lawful arrest
"cannot be satisfactory reconciled,"[1] it now seems to be fairly well established that there
are at least six exceptions under which warrantless searches have been held valid, viz:
(1) In "plain view," see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971);
(2) With "consent" voluntarily, intelligently and knowingly given, see Bumper v. North
Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304
U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
(3) As "incident to a lawful arrest," see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683,
4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d
327 (1959);
(4) In "hot pursuit" or "emergency" situations, see Warden v. Hayden, 387 U.S. 294, 87
S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367,
92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
(5) Where "exigent circumstances" exist coincidental with "probable cause" (as in the
case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d
419 (1970)[2]; and,

(6) In "stop and frisk" situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.
889 (1968).
Daniels v. State, 276 So. 2d 441 - Ala: Supreme Court 1973
A warrantless search, as Martin conducted, is per se unreasonable under the Fourth
Amendment to the United States Constitution, subject only to a few specific exceptions
recognized under the law, and the burden is on the State in a case such as this to show
that one or more of those exceptions is applicable. Kinard v. State, 335 So.2d 924
(Ala.1976). Those well-established exceptions to a warrantless search are: (1) plain view;
(2) consent; (3) incident to lawful arrest; (4) hot pursuit or emergency situations; (5)
exigent circumstances coincidental with probable cause; and (6) stop-and-frisk situations.
Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). See also Wilkinson v. State, 374
So.2d 400 (Ala.1979); Spann v. State, 494 So.2d 716 (Ala.Crim.App.1985); Vogel v.
State, 426 So.2d 863 (Ala.Crim. App.1980). "Under the rule declared by the Supreme
Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081
[(1961)], all evidence obtained by searches and seizures in violation of the Constitution is
inadmissible in a state court." Loyd v. State, 279 Ala. 447, 452, 186 So.2d 731, 736
(1966).
Ex parte Kelley, 870 So. 2d 711 - Ala: Supreme Court 2003
In Adams v. State, 815 So.2d 578, 580-81 (Ala.2001), this Court recognized the standard
for determining the existence of probable cause, stating:
"In Woods v. State, 695 So.2d 636 (Ala.Crim.App.1996), the Court of Criminal Appeals
explained the standard for determining the existence of probable cause:
"`"Whether there is probable cause [to] merit a warrantless search and seizure is to be
determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983). `Probable cause exists where all the facts and
circumstances within the officer's knowledge are sufficient to warrant a person of
reasonable caution to conclude that an offense has been or is being committed and that
contraband would be found in the place to be searched.' Sheridan v. State, 591 So.2d 129,
130 (Ala.Crim.App. 1991).""`State v. Stallworth, 645 So.2d 323, 325
[(Ala.Crim.App.1994)]. . . . "When we speak of probable cause, we are dealing with
probabilities which are factual and practical considerations of everyday experience."
[Sterling v. State, 421 So.2d 1375, 1381 (Ala.Crim.App.1982)].'
"695 So.2d at 640 (citations omitted)."
State v. Clayton, 155 So. 3d 290 - Ala: Supreme Court 2014

(d) The request arises from an actual question or controversy.

Petitioner holds that the rule defines as a new criminal offense the exercise of the enumerated
right to hunt (Constitution of Alabama 1901, Amendment 597) without surrendering the
fundamental right to be free from unreasonable searches and seizures (Constitution of the United
States, Amendment Four and Constitution of Alabama 1901, Article I, Section 5).
We have said in a variety of contexts that "the government may not deny a benefit to
a person because he exercises a constitutional right." Regan v. Taxation With
Representation of Wash., 461 U.S. 540, 545, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). See
also, e.g., Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47,
59-60, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006); Rutan v. Republican Party of Ill., 497
U.S. 62, 78, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). In Perry v. Sindermann, 408 U.S.
593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), for example, we held that a public college
would violate a professor's freedom of speech if it declined to renew his contract because
he was an outspoken critic of the college's administration. And in Memorial Hospital v.
Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), we concluded
that a county impermissibly burdened the right to travel by extending healthcare benefits
only to those indigent sick who had been residents of the county for at least one year.
Those cases reflect an overarching principle, known as the unconstitutional conditions
doctrine, that vindicates the Constitution's enumerated rights by preventing the
government from coercing people into giving them up.
Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 - Supreme Court 2013
Petitioner holds that the Department violates the Constitution of Alabama 1901, Article III
Distribution of Powers of Government by assuming powers held exclusively by the legislative
branch of government to define new crimes. The rule of the Department declares, " Any
person who refuses to allow inspection of the above named articles shall be in violation of this
regulation and shall be punished as provided by law." Violations of rules of the Department are
defined by law as class C misdemeanor criminal offenses (C.O.A. Section 9-1-4).
"It is a fundamental rule of constitutional law that the lawmaking authority of the
legislature may not be delegated to any other department or agency, either public or
private. State v. Vaughan, 30 Ala.App. 201, 4 So.2d 5 (Ala.Ct.App.1941). Therefore,
when certain legislative powers are delegated to administrative or quasi-administrative
officials, it is a prerequisite that adequate standards be established by the legislature so
that officials to whom the powers are delegated will not legislate but, rather, will carry
out the legislative will. See, Commission on Medical Discipline v. Stillman, 291 Md. 390,
435 A.2d 747 (1981).
....
"As a general rule, the legislature may delegate to its own appointed administrative
agencies the authority to make such minor rules and regulations as are necessary or
appropriate for administration or enforcement of its general statutes. State v. State Board
of Medical Examiners, 209 Ala. 9, 95 So. 295 (1923)."
Evers v. Board of Medical Examiners, 516 So.2d 650, 654-55 (Ala.Civ.App.1987). The
legislature cannot delegate its authority to make law and an agency cannot legislate.

Marcet v. Board of Plumbers Examination & Registration of Alabama, 249 Ala. 48, 29
So.2d 333, 49-50 (1947); Alabama Public Service Commission v. Mobile Gas Co., 213
Ala. 50, 61, 104 So. 538 (1925). Certainly, an "agency cannot be vested with power to
create a criminal offense." Standard Oil Co. of Kentucky v. Limestone County, 220 Ala.
231, 236, 124 So. 523 (1929). "An administrative agency cannot usurp legislative powers
or contravene a statute. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33
So.2d 11 (1947). A regulation cannot subvert or enlarge upon statutory policy. Jefferson
County Board of Education v. Alabama Board of Cosmetology, 380 So.2d 913 (Ala.
Civ.App.1980)." Ex parte Jones Manufacturing Co., 589 So.2d 208, 210 (Ala.1991).
"`The true test and distinction whether a power is strictly legislative, or whether it is
administrative, and merely relates to the execution of the statute law, "is between the
delegation of power to make the law, which necessarily involves a discretion as to what it
shall be, and conferring authority or discretion as to its execution to be exercised under
and pursuance of the law." The first cannot be done. To the latter, no valid objection can
be made.'"Heck v. Hall, 238 Ala. 274, 282, 190 So. 280 (1939).
Timmons v. City of Montgomery, 641 So. 2d 1263 - Ala: Court of Criminal Appeals 1993
[Gunter Guy for the defendant]

Petitioner holds that the rule attempts to enlarge on the intent of the legislature as clearly stated
in the referenced statutes in the rule. The expressed intent of the Legislature is for game that is
taken to be carried openly. The intent of the rule is to allow Department enforcement officers to
conduct searches and seizures without reasonable suspicion that a violation of the statutes has
been or is about to be committed or probable cause to warrant a legitimate search and seizure.
"It is settled law that the provisions of a statute will prevail in any case in which there is a
conflict between the statute and a . . . regulation.
"`It is axiomatic that administrative rules and regulations must be consistent with the
constitutional or statutory authority by which their promulgation is authorized. "A
regulation . . . which operates to create a rule out of harmony with the statute, is a mere
nullity." This is because an administrative board or agency is purely a creature of the
legislature, and has only those powers conferred upon it by its creator.'
"An administrative agency cannot usurp legislative powers or contravene a statute."
Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So. 2d 45, 47 (Ala. 1995)
(citations omitted; quoting Ex parte City of Florence, 417 So. 2d 191, 193-94 (Ala.
1982), quoting in turn Manhattan Gen. Equip. Co. v. Commissioner, 297 U.S. 129, 134
(1936)).
IN RE EX PARTE CHAMBERS, Ala: Court of Civil Appeals 2013

Petitioner holds that the earlier decision of the Commissioner to deny the petition to repeal the
rule should be overturned, an order should be issued for the rule to be repealed and the rule
should be held to be invalid.

Petitioner asks that all costs incurred by the petitioner in this matter be reimbursed to the
petitioner.
(2) Such rulings will be made in accordance with the Alabama Administrative Procedures
Act 11, Code of Alabama 1975, 41-22-11. Author: Statutory Authority: Code of Ala.
1975, 9-2-12, 41-22-4. History: Filed September 30, 1982.
Signed:____Eddie Maxwell____
Date:______February 8, 2016