Request By:
Don R. McCormick, Commissioner
Department of Fish and Wildlife Resources
#1 Game Farm Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
You requested a formal opinion of this office as to the extent of the license exemptions provided by KRS 150.170(5) - (8). Your question is whether these exemptions extend to exempt the therein described classes of persons from the normal requirement to purchase big game permits, trout stamps, and waterfowl stamps.
According to your letter of 9 October 1990, requesting this opinion, confusion has arisen from two earlier opinions of this office on the same issue, those being OAG 64-15 and OAG 72-774. Those two opinions answer the question oppositely. There are, in fact, two additional opinions of this office on the same question which will be reviewed in this opinion along with the two you included in your request.
OPINION OF THE ATTORNEY GENERAL
KRS 150.170(5) - (8) state:
(5) Any resident who is sixty-five (65) years of age or older may, without any sport hunting or sport fishing licenses, do any act authorized by the licenses , but while so doing he shall carry upon his person an affidavit stating the year of his birth and place of residence.
(6) Any resident serviceman on furlough of more than three (3) days in this state may, without any Kentucky sport hunting or sport fishing licenses, do any act authorized by the licenses , but while so doing he shall carry on his person proper identification and papers showing his furlough status.
(7) Any disabled American veteran who is at least fifty percent (50%) disabled as a result of a service-connected disability who is residing in Kentucky may, without any sport hunting or sport fishing licenses, do any act authorized by the licenses , but while doing so shall carry the card provided for by this subsection in order to be exempt from hunting or fishing license requirements. A disabled veteran shall obtain a copy of his disability rating from the Veterans Administration. He shall forward the copy to the Director of the Division of Law Enforcement of the Department of Fish and Wildlife Resources. The division shall mail a card certifying his disability and exemption from license requirements, and shall retain a copy of the certification.
(8) Any resident who is declared totally and permanently disabled by the federal Social Security Administration or by the state Workers' Compensation Board may, without any sport hunting or sport fishing licenses, do any act authorized by the licenses . [Emphasis added.]
The statutory language above-emphasized makes it consistently clear that in each case the extent of the exemption reaches only so far as to cover those acts authorized by the licenses (sport hunting or sport fishing) . The question that we must answer is: What is the extent of the activities permitted by the licenses? The answers to that question are found at KRS 150.175(1)(a) and (g). Those subsections state:
(a) Statewide resident sport fishing license . . . authorizes the holder to take fishes by angling, or take crayfish by a minnow seine, or by hand, to take min- nows by the use of a minnow seine, minnow trap or dip net, or to take fishes by grabbing, gigging, snaring, jugging, and bow and arrow, and to take frogs and turtles from any waters in any county of this state open for such purposes and subject to the limitations in this chapter and such additional limitations as the department may from time to time prescribe . . . .
. . . .
(g) A statewide resident hunting license . . . authorizes the holder to take or pursue wild animals, wild birds, frogs and turtles with gun, bow and arrow, dog or falcon, or to participate in a fox-hunting party engaged in the hunting or pursuing of foxes with dogs for sport, according to the provisions of the laws and regulations of the department.
These descriptions of the licensed activities do not include any specific mention of taking big game, waterfowl or trout. One might reasonably consider those activities to be implicated by the language "take fishes by angling, " KRS 150.175(1)(a), and "take or pursue wild animals, " KRS 150.175(1)(g), were it not for the specific mention of those activities at KRS 150.175(1)(q), (s) and (w), the subsections creating the stamps and permits which here concern us. Those subsections, respectively, state:
(q) A big game permit and a junior big game permit, which, in combination with a valid statewide hunting license or a valid junior statewide hunting license, authorize the holder to take or pursue deer, bear or wild turkey, in any designated open area of this state, during the open season and according to the provisions of the laws and regulations governing the hunting;
. . . .
(s) A trout stamp, which in combination with a valid statewide fishing license authorizes the holder to take trout by angling or as may be prescribed by regulation;
. . . .
(w) A Kentucky waterfowl stamp, which In combination with a valid statewide hunting license and a valid migratory bird hunting stamp, authorizes the holder to take or pursue migratory waterfowl. [Emphasis added.]
"Combination" means "the action of combining or joining two or more separate things into a whole." Oxford English Dictionary, Vol. II, p. 647, Clarendon Press, 1933 (emphasis added). These statutory subsections by their plain meaning alone would render untenable any position that would hold the taking of trout, waterfowl or big game as activities included within those allowed by the holders of only the sport fishing and sport hunting licenses.
It is, therefore, the opinion of the Attorney General that the exemptions to the normal license requirements found at KRS 150.170(5) - (8) make it permissible for the classes of persons therein named to perform all acts permitted by a sport fishing or sport hunting license without purchasing same, but that those permitted acts do not include taking or pursuing deer, bear or wild turkey (for which they must purchase a big game permit); taking trout (for which they must purchase a trout stamp) ; or, taking or pursuing migratory waterfowl (for which they must purchase a Kentucky waterfowl stamp) . We state the obvious by adding that in addition to the above all other legal requirements, including the purchase of any other normally required permits, stamps or tags, must be fulfilled to do any of these acts. The only exception we make to our opinion is that residents of the Commonwealth who are 65 years of age or older are not required to purchase a Kentucky waterfowl stamp. KRS 150.603 provides for this sole variance from the law as we have otherwise stated.
The confusion over this subject that may have arisen by the earlier opinions of this office does call for explanation, some of which is statutory change.
OAG 64-15 opined that residents 65 years of age or older must purchase a big game permit to hunt deer, notwithstanding that they were exempt from purchasing a sport hunting license. That opinion is consistent with ours of today, and we uphold it.
OAG 71-142 opined that residents 65 years of age or older are exempt from not only the license requirement, but the big game permit requirement as well. That opinion was sound at the time because KRS 150.170 was then written to expressly exempt that class of persons from the license and "a big game permit." That the language in the statute exempting those persons from obtaining a big game permit was subsequently deleted by the Legislature, and remains so today, not only vitiates the legitimacy of OAG 71-142 on this point, but buttresses today's opinion of this office.
OAG 72-774 opined that persons 65 years of age or older and resident servicemen on furlough are exempted from not only the license requirement but the permit and stamp requirements as well. We again point out that as to the class of persons 65 years of age or older, OAG 72-774 was partially correct when rendered because the then statute expressly provided for the additional exemption from the otherwise required big game permit. It does not now. As to the required stamps, in 1972 the statutes did not provide for these exemptions for persons 65 or older. KRS 150.603(1) now exempts them from the need to purchase a waterfowl stamp as we earlier observed. Also, the then statute did not provide for any additional exemptions for servicemen on furlough beyond the license exemption. OAG 72-774 was and is incorrect on these latter points.
Finally, OAG 80-600 opined, as we do today, that "There is a distinction between a hunting license and a permit. The license authorizes the hunter to take or pursue any permissible wild animals. In order to hunt deer, the hunter must also have a permit." We note that by 1980 the express provision for the additional exemption from the normally required big game permit had been legislatively deleted.
OAG 71-142 and OAG 72-774, insofar as they have become inconsistent with subsequent statutory amendment, are hereby withdrawn. OAG 72-774, insofar as it is inconsistent with this opinion, is hereby overruled.