Chronic Wasting Disease in Mississippi – Where to Find Current Information

On February 9, 2018, the Mississippi Department of Wildlife Fisheries and Parks issued a press release stating that chronic wasting disease had been found in Mississippi.  The positive test came from a 4 1/2 year old buck that was collected on January 25, 2018, in Issaquena County.  Since that time much information and unfortunately, misinformation has come out.  If you are interested in reading the facts rather than the rumors, take a look at the following:

1. You can find regular updates on the MDWFP website:
https://www.mdwfp.com/wildlife-hunti…sting-disease/

2. Officials from the MDWFP regularly appear on the MS Outdoors Radio which airs on the JT Show.  You can find the archives of these shows at http://www.supertalk.fm/audio-archives/j-t-archives/ The MDWFP also posts the videos from the MS Outdoors Radio programs on the news section of the MDWFP website which you can view at: https://www.mdwfp.com/media/news/

3. You can find regular updates on the MDWFP facebook page: https://www.facebook.com/mdwfp%20/

4. You can find updates on the MDWFP twitter account which is @MDWFPonline.

5. The MDWFP held a meeting at the Natural Sciences Museum on February 26 and invited members of the public to participate. Over 100 sportmen attended the even and another couple hundred watched it live on facebook.   The MDWFP broadcasted the event live and then posted the video to their webpage, facebook and twitter. You can view that at https://www.mdwfp.com/media/news/wil…ublic-meeting/

6. MDWFP provided a video update yesterday on their facebook page regarding the progress with sampling and said they intend to schedule another public meeting (possibly in Vicksburg) in the near future.

7.  The MDWFP’s Response Plan for Chronic Wasting Disease.

8.  You can find national news updates regarding chronic wasting disease at the Chronic Wasting Disease Alliance’s website.

The sky isn’t falling, but this is a serious disease that will impact deer hunting in Mississippi for years to come.  Read the facts from the experts and keep a skeptical eye out for the misinformation that appears to be coming from the commercial high fence deer industry.

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The Inevitable Happened – CWD in Mississippi

On February 2, I wrote about  proposed legislation affecting hunters in Mississippi.  Senate Bill 2921 would have required the owner of any wildlife enclosure to apply for and obtain a permit from the Mississippi Department of Wildlife Fisheries and Parks (MDWFP) and provided other related regulations.  The bill was virtually identical to HB1389.  Senate Bill 2921 died in Committee.  HB1389 passed the House and is currently pending in the Wildlife, Fisheries and Parks Committee of the Senate.

My February 2 blog post ended with “It is good to see the MDWFP and the Legislature doing what it can to protect that economy from the unfortunate and probably inevitable day CWD reaches Mississippi.”  A week later, the inevitable occurred and reports surfaced that CWD was confirmed in a free range whitetail deer in Issaquena County, Mississippi.  According the the Mississippi Department of Wildlife Fisheries and Parks the deer was collected on collected on January 25, 2018 and was a 4.5-year-old male that died of natural causes.

Since the MDWFP confirmed CWD, a considerable amount of information and unfortunately, misinformation has occurred on social media and internet message forums.  I won’t bother to repeat any of what has come from the chicken littles.  If you would like to read the actual plan the MDWFP has prepared, you can read it here.  The immediate change for sportsmen is a ban on supplemental feeding in the counties  within the 25 mile buffer zone surrounding the first confirmed CWD deer (Claiborne, Hinds, Issaquena, Sharkey, Warren, and Yazoo).  Suffice it to say, there will be modifications to the plan as they move forward with testing and additional information becomes available.  The MDWFP chronic wasting disease website will be updated as any developments occur.  If you want to read more about CWD, the Chronic Wasting Disease Alliance has a very informative website that is updated frequently.

 

 

Mandatory Harvest Reporting Bills – Legislative Update

House bill 1390 has passed the House.  The Senate’s companion bill (SB 2922) was amended, and then tabled subject to call.

http://billstatus.ls.state.ms.us/…/history/HB/HB1390.xml is the House Bill and http://billstatus.ls.state.ms.us/…/history/SB/SB2922.xml is the Senate bill. You can view the bills, amendments and history on those links.

SB 2922 as originally introduced and the Committee substitute required harvests to be reported within 72 hours.  It was subsequently amended to provide a five day reporting period.  The bill was tabled after the amendment.

HB 1390 that has passed the House does not have a time limit for harvest reporting and provides:

8 SECTION 1. Section 49-7-26, Mississippi Code of 1972, is
9 amended as follows:
10 49-7-26. (1) (a) The Mississippi Department of Wildlife,
11 Fisheries and Parks * * * shall develop, implement and regulate
12 a * * * mandatory harvest reporting program for white-tailed deer
13 or wild turkey or both. The purpose of this program is to collect
14 and compile harvest data * * * of such quality and quantity as to
15 be able to assist the Legislature and the commission in
16 formulating the wildlife resource conservation policy for the
17 State of Mississippi.
18 (b) * * * The harvest reporting program shall be simple
19 to use by sportsmen so as to promote compliance and accurate
20 reporting. The program may include, but is not limited to, such

21 means as a mobile smartphone application, online web-based
22 reporting, or such other electronic or digital method(s) as will
23 promote ease of use.
24 (c) The department shall provide an annual report for
25 the harvest reporting program to the Wildlife, Fisheries and Parks
26 Committees of the Senate and the House of Representatives.
27 * * *
28 ( * * *2) Each deer or turkey taken or possessed in
29 violation of the * * * harvest reporting program is a separate
30 offense.
31 SECTION 2. Funds appropriated to the Mississippi Department
32 of Wildlife, Fisheries and Parks shall not be expended on a
33 tagging program.
34 SECTION 3. This act shall take effect and be in force from
35 and after March 1, 2019.

People continue to refer to both of these as “tagging” bills.  Neither provides for tags and specifically prohibit the MDWFP from using appropriated funds on a tagging program.  If you feel strongly one way or the other, now is the time to let your Senators and Representatives know.

Legislation of Interest to Mississippi Hunters – Part 2 – Reporting of Deer and Turkey

Friday, I started a multi-part post about legislation of interest to Mississippi Hunters.  Part 1 discussed proposed legislation related to wildlife enclosures.  Next up is mandatory harvest reporting of deer and/or turkey.

The Committee substitute for Senate Bill 2922 provides in relevant part:

14 SECTION 1. Section 49-7-26, Mississippi Code of 1972, is
15 amended as follows:
16 49-7-26. (1) * * * The * * * commission * * * shall
17 develop, implement and regulate a * * * mandatory harvest
18 reporting program for white-tailed deer and/or turkey to collect
19 and compile harvest data * * * of such quality and quantity as to
20 be able to assist the Legislature and the commission in
21 formulating the wildlife resource conservation policy for the
22 State of Mississippi. The harvest reporting program authorized by
23 this section shall be a system that will be simple and usable by
24 all hunters so as to promote compliance and accurate reporting and
25 may include, but not be limited to, such means as a mobile smart
26 phone application, online web-based reporting, or such other
27 electronic or digital methods that promote ease of use by hunters.
28 (2) Hunters shall report deer and turkey that they harvest
29 within seventy-two (72) hours after the harvest. This subsection
30 shall not apply to deer harvested on private lands that are under
31 the Deer Management Assistance Program (DMAP).

32 ( * * *3) The department shall provide an annual report
33 regarding the harvest reporting program to the Wildlife, Fisheries
34 and Parks Committees of the Senate and the House of
35 Representatives.
36 * * *
37 ( * * *4) Each * * * violation of this section or of any
38 rule or regulation promulgated under this section is a separate
39 offense. A violation of this section is a Class III violation and
40 shall be punished as provided for in Section 49-7-101(1).
41 SECTION 2. No funds appropriated to the Mississippi
42 Department of Wildlife, Fisheries and Parks shall be expended on a
43 tagging program to report the harvesting of wildlife.

Similar legislation is pending in the House as HB1390 and states:

8 SECTION 1. Section 49-7-26, Mississippi Code of 1972, is
9 amended as follows:
10 49-7-26. (1) (a) The Mississippi Department of Wildlife,
11 Fisheries and Parks * * * shall develop, implement and regulate
12 a * * * mandatory harvest reporting program for white-tailed deer
13 or wild turkey or both. The purpose of this program is to collect
14 and compile harvest data * * * of such quality and quantity as to
15 be able to assist the Legislature and the commission in
16 formulating the wildlife resource conservation policy for the
17 State of Mississippi.
18 (b) * * * The harvest reporting program shall be simple
19 to use by sportsmen so as to promote compliance and accurate
20 reporting. The program may include, but is not limited to, such
21 means as a mobile smartphone application, online web-based
22 reporting, or such other electronic or digital method(s) as will
23 promote ease of use.
24 (c) The department shall provide an annual report for
25 the harvest reporting program to the Wildlife, Fisheries and Parks
26 Committees of the Senate and the House of Representatives.
27 * * *
28 ( * * *2) Each deer or turkey taken or possessed in
29 violation of the * * * harvest reporting program is a separate
30 offense.
31 SECTION 2. Funds appropriated to the Mississippi Department
32 of Wildlife, Fisheries and Parks shall not be expended on a
33 tagging program.

Both bills require the MDWFP to start a mandatory harvest reporting system for deer and/or turkey.  Neither bill requires tagging.  Both bills require the system to be simple to use and outline permissible methods, but leave the method of data collection to the MDWFP.  Both bills prohibit funds appropriated to the MDWFP from being used on a tagging program.

According to a 2016-2017 survey from the MDWFP  released in April of 2017, over 57% of those responding favored a mandatory harvest reporting system.

harvest reporting

The multi question survey was sent to over 300,000 individuals and over 13,000 responses were received. I am told that Mississippi had a tagging requirement many moons ago.  The reasons for its demise are as varied as the reasons I currently hear from people that do not support harvest reporting.

For the last several years I kept hearing rumors that “this will be the year” for harvest reporting or tagging to get passed.  Once again, it will be interesting to see how this legislation turns out.  If the survey is accurate and roughly 57% of Mississippi hunters wish to have a mandatory reporting program, they had best speak up and let their senators and representatives know.  While the hunters that oppose reporting appear to be in the minority, they are a very vocal minority.

Legislation of Interest to Mississippi Hunters – Part 1 – Wildlife Enclosures

Every year dozens of bills are introduced in the Mississippi Legislature that could impact hunters.  Most of those bills die in committee without a vote.  A few have survived the committee process this year that you may find of interest.  First up, wildlife enclosures.

The Committee Substitute for Senate Bill 2921 would require the owner of any wildlife enclosure to apply for and obtain a permit from the Mississippi Department of Wildlife Fisheries and Parks (MDWFP).  The permit holder would also have to comply with any testing required by the MDWFP.  Likewise, if chronic wasting disease (CWD) is diagnosed within five miles of the enclosure, the permit holder would be required to allow members of the MDWFP to enter the enclosure to harvest deer to obtain tissue samples.  Further, if those samples contained CWD, the MDWFP would be allowed to enter the enclosure to depopulate the whitetail deer within the enclosure.

This legislation simply expands on the authority of the MDWFP contained in Miss. Code 49-7-58 (c) which provides “The Commission on Wildlife, Fisheries and Parks and the Department of Wildlife, Fisheries and Parks shall have plenary authority in matters related to the importation of white-tailed deer, white-tailed deer in enclosures, and prevention of the introduction of chronic wasting disease into the native wildlife population.”

According to the Chronic Wasting Disease Alliance, CWD is a “contagious neurological disease affecting deer, elk and moose. It causes a characteristic spongy degeneration of the brains of infected animals resulting in emaciation, abnormal behavior, loss of bodily functions and death.”

The Chronic Wasting Disease Alliance has documented CWD in Arkansas, Colorado, Illinois, Iowa, Kansas, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming and the Canadian provinces of Alberta and Saskatchewan. 

This legislation follows previous legislation and administrative rules of the MDWFP which:

  1.   Prevent the importation of live cervids (including whitetail deer and elk) from other states (Miss Code 49-7-58); and
  2.   Impose regulations regarding importing cervid carcasses from areas where CWD has been found (40 Miss. Admin Code, Part 2, Rule 2.7).

Hunting has a multi-billion dollar impact on Mississippi’s economy.  It is good to see the MDWFP and the Legislature doing what it can to protect that economy from the unfortunate and probably inevitable day CWD reaches Mississippi.

 

Landowners file suit against MDWF&P over dogs on private land

On February 2, 2015 three plaintiffs filed suit in Hinds County Chancery Court against the Mississippi Department of Wildlife, Fisheries and Parks, the Mississippi Commission on Wildlife, Fisheries and Parks, and Sam Polles, in his official capacity as Executive Director of the Mississippi Department of Wildlife Fisheries and Parks.  You can read the plaintiffs’ complaint here.

The plaintiffs claim that dog hunters have caused free ranging hunting dogs to cross their land and the MDWFP has failed to take any action to prevent these dogs from intruding on the property of the plaintiffs.  Plaintiffs also allege that the MDWFP has failed to implement a system of permitting and fines to reduce or eliminate the problems of which plaintiffs complain.  The plaintiffs’ legal theories are based on public nuisance, an unconstitutional taking of their property, civil trespass, and private nuisance.

Plaintiffs prayer for relief states

dogjpg

My Take:    This case is a dog that won’t hunt.  The plaintiffs will soon learn about something called the Mississippi Tort Claims Act that applies when you sue the State of Mississippi for money.  Assuming they complied with the notice provisions, there are several other provisions which they will soon find problematic.  For example:

§ 11-46-9. Exemption of governmental entity from liability on claims based on specified circumstances

   (1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

   (a) Arising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

   (b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;

   (c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;

   (d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

   (e) Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation;

….

   (g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

   (h) Arising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature.

 

Can a convicted felon legally hunt with a muzzle loader in Mississippi?

Not a hunting season goes by that someone doesn’t ask me this question so I figured it would be helpful to put the answer in writing for any convicted felons that might be considering hunting with a muzzle loader.

With respect to federal law, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has a handy Top 10 Frequently Asked Questions section on their website.  The number 1 question is “Can a person prohibited by law from possessing a firearm acquire and use a black powder muzzle loading firearm?”  The ATF’s response is:

The Gun Control Act of 1968 (GCA) prohibits felons and certain other persons from possessing or receiving firearms and ammunition (“prohibited persons”). These categories can be found at 18 U.S.C. § 922(g) and (n) in http://atf.gov/publications/download/p/atf-p-5300-4.pdf. However, Federal law does not prohibit these persons from possessing or receiving an antique firearm. The term “antique firearm” means any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898. The definition includes any replica of an antique firearm if it is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or uses rimfire or conventional centerfire ammunition which is no longer manufactured in the United States, and which is not readily available in ordinary channels of commercial trade. Further, any muzzle loading rifle, shotgun, or pistol which is designed to use black powder or black powder substitute, and which cannot use fixed ammunition, is an “antique firearm” unless it (1) incorporates a firearm frame or receiver; (2) is a firearm which is converted into a muzzle loading weapon; or (3) is a muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. See 18 U.S.C. § 921(a)(3), (a)(16). Thus, a muzzle loading weapon that meets the definition of an “antique firearm” is not a firearm and may lawfully be received and possessed by a prohibited person under the GCA. In addition, the GCA defines the term “ammunition” to mean “ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.” Because an “antique firearm” is not a “firearm,” it would is lawful for a prohibited person to receive or possess black powder designed for use in an “antique firearm.” Also, the Federal explosives laws do not make it unlawful for a prohibited person to acquire and possess black powder in quantities not exceeding fifty pounds if it is intended to be used solely for sporting, recreational, or cultural purposes in “antique firearms.” See 18 U.S.C. § 845(a)(5) By contrast, a prohibited person may not receive or possess black powder firearms that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. ATF has classified certain muzzle loading models as firearms. All of these models incorporate the frame or receiver of a firearm that is capable of accepting barrels designed to fire conventional rimfire or centerfire fixed ammunition. These muzzle loading models do not meet the definition of “antique firearm” as that term is defined in 18 U.S.C. § 921(a)(16), and are “firearms” as defined in 18 U.S.C. § 921(a)(3). Furthermore, as firearms, these and similar models, regardless of the barrel installed on the firearm or provided with the firearm, are subject to all provisions of the GCA. Persons who purchase these firearms from licensed dealers are required to fill out a Firearms Transaction Record, ATF Form 4473, and are subject to a National Instant Criminal Background Check System (NICS) check. Felons and other prohibited persons may not lawfully receive or possess these firearms or ammunition.

The following is a list of weapons that load from the muzzle and are classified as firearms, not antiques, under the GCA, because they incorporate the frame or receiver of a firearm:

  • Savage Model 10ML (early, 1st version)
  • Mossberg 500 shotgun with muzzle loading barrel
  • Remington 870 shotgun with muzzle loading barrel
  • Mauser 98 rifle with muzzle loading barrel
  • SKS rifle with muzzle loading barrel
  • PB sM10 pistol with muzzle loading barrel
  • H&R/New England Firearm Huntsman
  • Thompson Center Encore/Contender
  • Rossi .50 muzzle loading rifle

This list is not complete and frequently changes. There may be other muzzle loaders also classified as firearms. As noted, any muzzle loading weapon that is built on a firearm frame or receiver falls within the definition of a firearm provided in 18 U.S.C. § 921(a)(3). Finally, even though a prohibited person may lawfully possess an antique firearm under Federal law, State or local law may classify such weapons as “firearms” subject to regulation. Any person considering acquiring a black powder weapon should contact his or her State Attorney General’s Office to inquire about the laws and possible State or local restrictions. A list of State Attorney General contact numbers may be found at www.naag.org.

As referenced in the third to the last sentence above, a state may also classify muzzle loaders as firearms subject to regulation.  That is exactly what an Attorney General’s opinion does in Mississippi. See 2004 WL 555121 (Miss.A.G.) Opinion No. 2004-0043, dated February 13, 2004.  The opinion states:

Office of the Attorney General

State of Mississippi

Opinion No. 20040043

February 13, 2004

Re: Possession of Weapons by Felon

Honorable Mark A. Maples

George County Prosecutor

362 Summer Street

Lucedale, Mississippi 39452

Dear Mr. Maples:

Attorney General Jim Hood has received your letter of request and has assigned it to me for research and reply. Your letter states:

Sheriff Garry Welford and I hve recently been asked a question about a convicted felon and a firearm, and we pose the following question:

Section 97-37-5 of the Mississippi Code, 1972, as amended provides:

“(1) It shall be unlawful for any person who has been convicted of a felony under the laws of this State, any other State, or the United States, to possess any firearm…”.

An individual in George County was previously convicted of burglary of a building and accessory after the fact to armed robbery. He received an eight-year and four-year sentence, respectively, and served a period of ten years before being discharged from the Department of Corrections custody. He is no on any type of parole or Department of Corrections supervision at this time. He wishes to hunt using a muzzle loading rifle or muzzle loading shotgun or bow and arrow.

Our question is this: Can a convicted felon possess (and consequently hunt) with a muzzle loading rifle, muzzle loading shotgun, a traditional bow and arrow, or a cross bow?

In response, Mississippi Code Annotated Section 97-37-5 provides:

(1) It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S. Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

(2) Any person violating this section shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), or committed to the custody of the State Department of Corrections for not more than three (3) years, or both.

(3) A person who has been convicted of a felony under the laws of this state may apply to the court in which he was convicted for a certificate of rehabilitation. The court may grant such certificate in its discretion upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.

The above quoted statute prohibits a convicted felon from possessing of any “firearm” among other weapons. Black’s Law Dictionary defines “firearm” as:

An instrument used in the propulsion of shot, shell or bullets by the action of gunpowder exploded within it. A weapon which acts by force of gunpowder. The word comprises all sorts of guns, fowling pieces, blunderbusses, pistols, etc.

It is the opinion of this office that a muzzle loading rifle or a muzzle loading shotgun is within the meaning of the term “firearm” as used in Mississippi Code Annotated Section 97-37-5. However, the statute does not include weapons such as a traditional bow and arrow or crossbow. Therefore, a convicted felon may possess (and consequently hunt with) a traditional bow and arrow or crossbow.

If we may be of further service to you, let us know.

Very truly yours,

Jim Hood,

Attorney General

By: David K. Scott

Special Assistant Attorney General

Long story short, while the ATF is ok with felons possessing some black powder muzzle loaders under federal law, felons are prohibited from possessing any type of muzzle loader under Mississippi state law.  If you have been convicted of a felony and intend to hunt in Mississippi, you are limited to the use of a bow or crossbow unless you have received a pardon for the felony, have received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S. Code, or have received a certificate of rehabilitation pursuant to subsection (3) of 97-37-5.

A bad day on the water

Spring is here bringing with it slowly rising air and water temperatures.  As a result, more and more people are headed to local lakes and reservoirs for boating activities.  If you are one of them, be careful.  Mississippi requires persons born after June 30, 1980 to complete a Boating Safety Course to operate a boat.  So anyone roughly under the age of 34 should have taken a basic safety course to drive a boat.  

On the other hand, most anyone you see driving a boat over the age of 34 probably hasn’t taken the class.  Regardless of the safety class, boaters must also be on the lookout for other boaters driving while impaired.  Pursuant to Miss. Code. 59-23-5 ” A person who operates a watercraft in waters over which this state has jurisdiction shall be deemed to have given consent to submit to a chemical test or test of his breath for the purpose of determining the alcohol content of his blood, as a condition of operating the watercraft in this state.”  This is basically the boating version of the implied consent law applicable to motor vehicles on public roads.  Miss. Code 59-23-7 states:

It is unlawful for any person to operate a watercraft on the public waters of this state who:

   (a) Is under the influence of intoxicating liquor;

   (b) Is under the influence of any other substance which has impaired such person’s ability to operate a watercraft; or

   (c) Has eight one-hundredths percent (.08%) or more by weight volume of alcohol in the person’s blood based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood as shown by a chemical analysis of such person’s breath, blood or urine administered as authorized by this chapter.

Some are under the mistaken belief that a boater can’t be charged with boating under the influence unless the blood alcohol content is .08 or greater, but the statute clearly has an “or” between sections (b) and (c).  This means it is unlawful to operate a boat under the influence of alcohol or any substance which impairs the ability to operate the watercraft or if the operator has .08 blood alcohol content or greater.

The Mississippi Supreme Court handed down the case of Hardy v. State of Mississippi, NO. 2012-KA-01970-SCT yesterday where an individual with a blood alcohol content below the legal limit was convicted.  The facts were tragic.  Brad Hardy was driving a small boat while standing up.  A witness testified:

Hardy came around Dead Man’s Curve and just turned . . . and hit the bank and went up onto
the bank . . . . He hit some boats, and then hit the bank, went up on the bank, and the boat
landed between two trees on the other side of the river.

The witness also testified “she overheard a little girl on the bank scream ‘you killed my daddy.'”   Hardy admitted drinking six beers, but was .01 below then then legal limit of 0.10 (now .08).  Nevertheless, Hardy was convicted of aggravated boating under the influence and manslaughter by culpable negligence.  The trial court sentenced Hardy to forty-four years with twenty-six to serve.  The Mississippi Supreme Court upheld the verdict and sentence.

This case brought back memories from seeing a friend die at almost the same location close to Ratliff Ferry over ten years ago.  My friend jumped off of the back of a pontoon boat.  As he swam in the Pearl River toward a sandbar, two ski boats rounded a curve at a high rate of speed following each other.  The first boat narrowly missed him.  Seconds later we heard the loud thud of the second boat striking my friend.  The propeller sliced up his body starting at his ankle and ending at his neck.

The boat operator in that situation was accompanied by his wife and small child.  I don’t know if he was ever charged or convicted, but he did have some amount below the legal limit of alcohol in his system when the Mississippi Department of Wildlife Fisheries and Parks officer administered the breathalizer.  I will never forget seeing the muddy brown water of the Pearl turn blood red.  A mother lost her son, a brother lost his brother and many of us lost a friend.  It was a bad day on the water.  I have never been back to that river and don’t intend to.

Be safe out there and watch out for the other guy.  He may be under the influence and he may have little or no training in the proper operation of a boat.

Weapon of Choice

Historically, Mississippi had a single primitive weapon season for deer.  It took place from December 2 until December 15.  Back then, we used black powder guns with exposed hammers and a little percussion cap for ignition.  Scopes with any level of magnification were prohibited.  Hunting in the rain was tough.  Sometimes the guns would fire and other times you didn’t get so lucky.  Cleanup consisted of soaking the barrel in a bathtub of hot water.  It made a mess that resulted in a few scoldings from my mom when I was young.

In the mid to late 80s, Knight Muzzleloaders came along and hunters started moving to inline muzzleloaders.  They were more reliable, but cleanup continued to be a pain in the backside.  A little later, magnified scopes were allowed for our primitive season.  With each step, the guns used became less and less primitive.

Around 2005, Mississippi passed legislation allowing some single shot rifles in .38 caliber or larger to be used.  The most common was the H&R Handi Rifle in 45/70.  Hunters rushed out to upgrade their weapons.  As the demand increased, the price spiked.  A few years later, the primitive weapon definition was modified from .38 caliber or larger to .35 caliber of larger.  Hunters again rushed out to upgrade their primitive weapons with the .35 Whelen being the most popular.  You would be hard pressed to find anyone that would call a Thompson Center Encore in .35 Whelen topped with a Swarovski a “primitive weapon.”

While the definition of primitive weapon was evolving, the number of primitive weapon seasons increased.  What was once limited to December 2 through 15 was expanded to include a new season at the end of January.  Then, an additional primitive “doe only” season was added in November for the week prior to open day of the traditional gun season.

Not content with a not so primitive weapon and a greatly lengthened primitive season, the Mississippi Legislature again decided to tinker with the allowable weapons for primitive season.  Beginning with the 2014-2015 deer season, House Bill 1139 modifies Miss. Code 49-7-31 as follows:

During any open season on deer with primitive
weapons after November 30, a person may use any legal weapon of
choice on private lands only, if the person is:
(i) The title owner of the land;
(ii) The lessee of the hunting rights on the land;

(iii) A member of a hunting club leasing the
hunting rights on the land; or
(iv) A guest of a person specified in subparagraph
(i), (ii) or (iii).

As a result, primitive weapons will be a thing of the past for most hunters on private land in Mississippi.  Hunters will be allowed use any weapon of choice on private land during the December and January deer seasons provided they own the land, lease the land, are a member of a deer club leasing the land or are a guest of someone that owns the land, leases the land or is in a deer club on the land.

The only deer season (outside of archery season) where a primitive weapon will be required will be the early “doe only” November season preceding the traditional gun season.  Is this the final step?  Doubtful.  Hunters want more opportunity (days) and want to hunt with their choice of weapon.  It probably will not occur in the next five years and maybe not in the next ten, but a complete weapon of choice season eliminating archery and primitive weapon seasons is on the horizon.  Hopefully there will be enough deer around at that time for us to continue hunting!

Looks like a few tickets were handed out

One of the interesting parts of having a blog is seeing the search terms people use to reach my site.  By the looks of the search terms, a number of people arrived at my site yesterday trying to find out the cost of a ticket in Mississippi for hunting doves over bait.  The answer to the question of “what does it cost?” is “it depends.”

It depends on which county you were in, it depends on whether the law enforcement officer that issued the citation is a state or federal employee and it could also depend on whether you were simply a hunter in a baited field or if you were the landowner than illegally baited a field to make a profit.  There are many considerations.

If you were issued a hunting related citation and think that it was unjustified, find an attorney that routinely handles criminal law in the area where you were issued the citation.  Our law firm does not handle criminal cases, but I can point you in the right directed of a good criminal lawyer if you do not know of one.

On the other hand, if you were wrong and know you were wrong, take your medicine.  Live and learn.  Next year, follow the brochures I discussed from the Mississippi Department of Wildlife Fisheries and Parks and the US Fish and Wildlife Service.  I don’t doubt that there are legal ways to push the envelope, but if you stay within those guidelines you will not have to search the internet for the cost of a ticket.

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