Request By:
Mr. James W. Poe
436 College Street
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Robert F. Stephens, Attorney General; David C. Short, Assistant Attorney General; David K. Martin, Assistant Attorney General; Peggy D. Guier, Legal Aide, Office of the Attorney General, The Capitol, 34, Frankfort, Kentucky 40601
Your letter stated that in your opinion KRS 150.180 prohibits the sale, trade, barter or exchange of largemouth bass, smallmouth bass, Kentucky bass, plus numerous other game fish. It is your further opinion that organizations sponsoring bass fishing tournaments and contestants accepting cash prizes from these organizations are in violation of KRS 150.180.
KRS 150.180, Section 1, provides:
"Except as otherwise provided in this section or elsewhere in this chapter, and subject to regulations adopted under this chapter, no person, for himself or as the agent or employe of another shall buy, or sell, or attempt to buy, or sell, barter, exchange, or trade or have in possession for the purpose of selling, bartering, or trading any protected wildlife or part thereof or raw fur, no matter where or when caught or killed, whether caught or killed in this state or in any other state or other country."
This provision is for the expressed purpose of preservation and regulation of protected wildlife. The taking of fish even though for private use is a privilege and not a right which may be granted by the State under such conditions as the State may see fit to impose.
Commonwealth v. Masden, 295 Ky. 861, 175 S.W.2d 1004 (1944). Section 1 of 301 Kentucky Administrative Regulations 1:060 provides that the following are sports fish and may be taken by angling (i.e., hook and line in hand, gigs, rod in hand, set line, or sport fishing trot line): 1. Largemouth Bass9. Sauger2. Smallmouth Bass10. Rockfish (Striped Bass)3. Kentucky Bass11. White Bass4. Coosa Bass12. Yellow Bass5. Rock Bass13. Muskey6. White Crappie14. Northern Pike7. Black Crappie15. Chain Pickerel8. Walleye16. Trout
No prohibition presently exists on the sport fishing of these varieties of fish other than possessing a valid sport fishing license ( KRS 150.170) and following the regulations set forth by the Department of Fish and Wildlife Resources.
With regards to sport fishing of these species of fish, KRS 150.180 presently is not applicable for basically two reasons. First, the purpose of fishing laws is to preserve from extinction useful fish on Kentucky waters for the welfare of the general public. Reasonable regulations with respect to fish are constitutional.
Draffen v. Black, 302 Ky. 775, 196 S.W.2d 362 (1946). Since all wildlife is protected unless declared unprotected, 301 KAR 3:030 was formulated to inform the public of species that can be hunted year-round. 301 KAR 3:030, Section 2, states that the fish enumerated above are protected except during open season and as specified by other regulations. Additionally, 301 KAR 1:055, Section 1, stipulates that the season for these species of fish is year-round. Since these fish are subject to year-round open season and are unprotected during that season, they remain, in essence, unprotected through out the year. Therefore, KRS 150.180, which pertains only to protected wildlife, is not applicable to fishing of these species.
Second, tournament fishing does not constitute "buying and selling, or attempting to buy or sell, barter, exchange, or trade or have in possession for the purpose of selling, bartering, or trading. " KRS 150.010, Section 2 defines to buy as "offering to buy, acquiring or possessing through purchase, barter, exchange, or trade." Section 25 defines to sell as "offering to sell, having or possessing for sale, barter, exchange or trade." Rewards and prize winnings are essentially contractual. Accordingly, when an offer of reward is accepted by performance, it becomes a binding contract. The prize winnings in this instance are given as consideration for compliance with the tournament rules and in having entered the contest to promote the club's private interests. The act of catching the fish is both the acceptance and the only subject of agreed exchange to be received by the organization. The rewards are not given for the purposes of sale, barter, exchange, or trade of the fish which is the subject of the award. Rather, the prizes are given for the purpose of having promoted a private organization by complying with tournament rules and regulations. The acts of entering the tournament and catching a fish, not the fish itself, are the objects of the agreement.
In conclusion, the Department of Fish and Wildlife Resources places no restrictions upon private fishing clubs and the amount of rewards which they extend through sponsored tournaments. The Department only requests that the clubs notify them when sponsoring any tournament on any state-owned body of water.