Request By:
Mr. Butch Craig
4 Truesdale Avenue
South Newport, Kentucky 41071
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winton, Assistant Attorney General
You requested by letter to the Attorney General, received 12 October 1990, a formal opinion about several questions concerning a portion of KRS 150.092(1), which deal with a requirement of obtaining the written consent of a land owner or tenant before entering upon his land to hunt deer or turkey. You stated in your letter that you are concerned about:
1) The new law (KRS 150.092(1)) passed by the Kentucky Department of Fish and Wildlife Resources (DFWR);
2) Whether DFWR has the authority to demand this;
3) The new law is forcing the hunter and land owner or tenant to enter into a contract;
4) Whether the written consent increases land owner or tenant liability, and DFWR publishing a brochure stating that land owners do not increase their liability by giving their consent; and
5) The law is discriminatory in that it applies to only deer or turkey hunters.
OPINION OF THE ATTORNEY GENERAL
KRS 150.092(1) states:
Entry on land without consent prohibited -- Authority of conservation officer to arrest. -- (1) No person shall enter upon the lands of another to shoot, hunt or fish without the oral or written consent of the owner or tenant. No person shall enter upon the lands of another to trap furbearers or to hunt deer or turkey without the written consent of the owner or tenant.
We must remark at the outset that your observation that the law was "passed" by the DFWR is incorrect. No statute, including this one, is ever passed by any state agency; all are passed, or legislated, by the General Assembly. Ky. Const. § 29.
Next, as to your observation that the DFWR does not have the authority to demand this written consent, we must disagree with you up to a point. KRS 150.090(1) empowers duly appointed DFWR Conservation Officers to enforce, inter alia , all the provisions of KRS Chapter 150, Fish and Wildlife Resources. Since the General Assembly obviously placed KRS 150.092(1) within Chapter 150, it is part of the Fish and Wildlife Resources Law which every Conservation Officer is authorized and duty bound to enforce. The point to which we disagree with you reaches only to a level where a question is raised about the constitutionality of the statute. If the statute is unconstitutional, as you seem to imply is the character of KRS 150.092(1) by your denunciation of it as "discriminatory, " then we would agree with you in that a state agency lacks authority to enforce an unconstitutional law. Ky. Const. § 26. We hasten to add, however, that a declaration of a law's unconstitutionality is for the judiciary to make; our opinion that any law is unconstitutional does not make it so. We will return to this question as it applies to KRS 150.092(1) later in this opinion.
We now consider your assertion that KRS 150.092(1) compels the two parties involved to enter into a "private contract" by following its mandate. This is not true. A "contract" is a promise or set of promises for breach of which the law gives a legal remedy. Williston on Contracts , Revised Ed., Vol. 1, Section 1. No promises at all are exchanged between those persons who give and those who receive mere written consent under the statute we are considering.
You spoke on behalf of the land owners when you wrote that they "think they are leaving themselves open for law suites [sic] by signing." You questioned the authority of the DFWR to publish a statement to the effect that land owners "are not responsible for actions of people hunting on their land." The statement you attribute to the DFWR is essentially true and any fear of increased legal liability you attribute to land owners as a result of their giving their written consent is unfounded by force of KRS 150.645. This statute makes it clear beyond any serious contention that land owners, tenants or occupants of land who freely give their permission to persons to enter onto their land to hunt do not thereby increase their legal duty or, therefore, their liability towards those persons.
KRS 150.645 states as follows:
An owner, lessee or occupant of premises who gives permission to another person to hunt, fish, trap, camp or hike upon such premises shall owe no duty to keep the premises safe for entry or use by such person or to give warning of any hazardous conditions on such premises, and such owner, lessee or occupant, by giving such permission, does not thereby extend any assurance that the premises are safe for such purpose, or constitute the person to whom permission is granted an invitee to whom a duty of care is owed. The owner, lessee or occupant giving permission for any of the purposes stated above shall not be liable for any injury to any person or property caused by the negligent acts of any person to whom permission is granted. This section shall not limit the liability which would otherwise exist for wilful and malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; or for injury suffered in any case where permission to hunt, fish, trap, camp or hike was granted for a consideration other than the consideration, if any, paid to said owner, lessee or occupant by the state. The word "premises" as used in this section includes lands, private ways and any buildings and structures thereon. Nothing in this section limits in any way any liability which otherwise exists. 1
Therefore, the only liability to which a land owner is exposed when he or she freely gives permission to another to come onto his or her land to hunt or trap is that which already "otherwise exists." That includes liability as a result of "wilful and malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity." KRS 150.645. This is akin to the merest of duty that is owed an ordinary trespasser. See , e.g. ,
Dykes v. Alexander, Ky., 411 S.W.2d 47 (1967); see , generally, 17 Ky. Digest 2d, Negligence , § 33 (1). Thus, the act of giving the consent is statutorily prohibited from being construed in any way that would increase a land owner's liability.
We now turn to your final and most serious criticism of KRS 150.092(1), that is, that it impermissibly discriminates against deer and turkey hunters. Calling the law discriminatory is in this instance another way of saying it is special or class legislation. Kentucky's Constitution, at Section 59, Subsection 29, prohibits the Legislature from enacting special legislation where a general law can be made applicable. There are two requirements a statute must meet in order to be general and constitutional, as opposed to special and unconstitutional. Those requirements are:
(1) It must apply equally to all in its class, and (2) there must be distinctive and natural reasons inducing and supporting the classification.
Schoo v. Rose, Ky., 270 S.W.2d 940, 941 (1954).
We are of the opinion that the portion of KRS 150.092(1) being considered passes the first requirement, but fails the second. The class created by the statute is all who would "hunt deer or turkey, " and the statute equally treats all persons in that class, requiring each, without exception, to obtain the particular written consent. The statute, in our opinion, runs afoul of the Constitution and fails the second part of the Schoo test because we can neither find nor conceive of any "distinctive and natural" basis for a classification of deer or turkey hunters in connection with the written consent requirement of the statute.
The reasons for the classification must be "substantial and justifiable, " and "apparent from legislative history, from the statute's title, preamble or subject matter, or from some other authoritative source."
Tabler v. Wallace, Ky., 704 S.W.2d 179, 186 (1986). Let us then look to these areas as our guides.
First, we see nothing in the title of the statute which reveals any basis why the classification was made, and it has no preamble.
The mandatory written consent provision of KRS 150.092(1), prior to its most recent amendment by the 1990 General Assembly, applied only to those who would enter upon the lands of another to trap. 1990 saw the Legislature expand the mandatory written consent provision to embrace deer or turkey hunters. 1990 Ky. Acts, Ch. 474. Sec. 2. We have not been asked and so are not concerned about the permissibility of creating a classification of trappers. Yet, we do consider whether there could be a rational basis for classifying deer or turkey hunters with trappers. We do not think so. The nature of the pursuits are too dissimilar. Trappers go onto the land, set traps, and then leave the traps and the land. It is unnecessary for them to be armed. The hunters take weapons onto the land, pursue game which, presumably if they are successful, they remove from the land, along with their weapons. Moreover, what, if anything, could there be about deer or turkey hunters that would justify the inclusion of them as a class with trappers that would not also serve to justify inclusion of hunters of different game along with them? We can conceive of nothing that would.
We consider whether the classification is justifiably based due to the fact that deer and turkey are big game under KRS 150.175(1)(q), and conclude that that statute provides no such justification because it includes bear as big game, but bear hunters are not part of the classification of KRS 150.092(1).
We know that until 1988 KRS 150.993(3) required persons to obtain the written consent of land owners or tenants before entering onto another's land to shoot or hunt with a "rifle calibered for center fire cartridges of a caliber of .240 and greater." KRS 150.993(3), repealed, 1988 Ky. Acts. Ch. 365, § 20. The rationale of this former statute requiring written consent cannot serve to justify the classification now being considered because neither deer nor turkey legally need be taken with a rifle of any caliber, but both may legally be taken with a shotgun or bow and arrow. See : 301 KAR 2:140 Sec. 3(5), (6); 301 KAR 2:170 Sec 8(1), Sec. 9.
Lastly, the method and weaponry allowed deer and turkey hunters are not substantially peculiar to their choice of game. As we have seen, deer and turkey may be pursued and taken with shotgun or bow and arrow (in addition to rifle) much the same as other game may be taken. See , generally, 301 KAR Chapters 2 and 3.
Our conclusion is that for the purpose of KRS 150.092(1)'s written consent requirement, there is no justifiable basis on which the Legislature could have created the classification of deer and turkey hunters in contradistinction to hunters of the various other game species.
It is the opinion of the Attorney General for all of the foregoing considerations that KRS 150.092(1), to the extent that it creates the classification of "deer or turkey" hunters who are compelled to obtain written consent of an owner or tenant of land before entering the land to hunt those animals, is violative of Kentucky's Constitution, Section 59. As such, that portion of the law is arbitrary and violative of Kentucky's Constitution, Section 2, which prohibits the exercise of arbitrary power over the life and liberty of free persons.
Footnotes
Footnotes
1 We note that KRS 411.190, Kentucky's recreational use statute, makes virtually the same provisions as KRS 150.645. We include herein only the latter for the sake of brevity. For treatment of KRS 411.190, see : Midwestern, Inc. v. N. Ky. Community Center, Ky.App., 736 S.W.2d 348 (1987), and Page v. City of Louisville, Ky.App., 722 S.W.2d 60 (1986).