Request By:
Carl E. Kays
Commissioner
Department of Fish & Wildlife Resources
Arnold L. Mitchell Building
#1 Game Farm Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: David W. Mossbrook, Assistant Attorney General
This is in reply to your request for an opinion whether the Kentucky Department of Fish and Wildlife Resources has authority to do each of the following:
(a) conserve resident fish or wildlife determined by KDFWR or by the Secretary (of the Interior) to be endangered or threatened;
(b) conduct investigations to determine the status and requirements (ecological) for survival of resident fish or wildlife;
(c) establish programs, including the acquisition of land or aquatic habitats or interests therein, for the conservation of resident endangered or threatened fish or wildlife; and
(d) provide for public participation in the designation of resident fish or wildlife as endangered or threatened.
The Department of Fish and Wildlife Resources has been granted the authority by KRS Chapter 150 to protect and conserve the wildlife of this Commonwealth. It is our opinion that the authority granted to the Department of Fish and Wildlife Resources by KRS Chapter 150 permits the Department to do each of the enumerated items listed above. Endangered or threatened fish or wildlife within Kentucky constitute a subclass which is included in the general classification of Kentucky wildlife to which the statutes refer. The authority to promulgate regulations designating endangered species granted by KRS 150.183 clearly indicates an intent to include endangered wildlife within the Department's jurisdiction.
The authority to conduct investigations is clearly stated in KRS 150.023(3). The authority to acquire land, by eminent domain if necessary, is granted in KRS 150.024. The authority to establish programs for the conservation of resident endangered wildlife is included without specification in the general authority granted by KRS 150.021(1) and KRS 150.023(2). Public participation in the adoption of regulations by Kentucky agencies is required by KRS 13.085 if requested by any citizen after publication in the administrative register. In addition, the Department may conduct hearings for the purpose of securing public input relative to endangered wildlife designations prior to the adoption of regulations.
You have also requested an opinion clarifying the exact authority of the Department over all groups of wild, non-domesticated animals residing in Kentucky for the purpose of determining whether the Department of Fish and Wildlife Resources may enter a Full Authorities Endangered Species Cooperative Agreement with the U.S. Fish and Wildlife Service or should enter instead a Limited Authorities Agreement. There would be no question as to the Department's complete authority over all groups of wild animals were it not for the fact that 1968 HB 334 changed within the definition of wildlife the term "wild animal" to "wild mammal" which is less inclusive. However, as the issue of whether the Department may enter into the Full Authorities Agreement is clearly established without determining the full significance of the change in definition, we will not endeavor to issue a broad statement clarifying the Department's authority but instead make such a determination when an appropriate factual situation is presented.
The Department has full authority to enter into the Full Authorities Agreement. KRS 150.250 authorizes the Department, subject to approval, to enter into any contract with the United States government, or agencies thereof, "in regard to the preservation, protection and propagation of fish, game and animals, which it may deem to the advantage of the state to enter into." Also, KRS 150.150 states: "The game and fish fund shall be used to carry out the purposes of this chapter and any law or regulation for the protection of wild animals, birds or fish, and for no other purposes." Neither of these statutes is affected by the changed definition of wildlife and both clearly indicate that the authority stated therein applies to all animals and fish.