This week, a not-for-profit hunters advocacy group, Hunters For Deer, Inc. (HFD), won a decisive victory in the Second Department based on New York’s preemption doctrine. In Hunters for Deer, Inc. v Town of Smithtown, ____AD3d (August 18, 2020) the Appellate Division settled a conflict preemption argument between State and local government regulations upholding the State’s authority to regulate the discharge of bows and arrows under the Environmental Conservation Law (ECL) despite a more restrictive local municipal regulation by the Town of Smithtown.
The New York Constitution “confers broad police power upon local government relating to the welfare of its citizens” (New York State Club Assn. v City of New York, 69 NY2d 211, 217, affd 487 US 1; see NY Const, art IX, § 2[c]). New York’s Municipal Home Rule allows local governments to adopt local laws that tend to create a patchwork of rules and regulations across the State that can balkanize effective state wide regulation. However, “local governments may not exercise their police power by adopting a law inconsistent with . . . any general law of the State” (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96).
As succinctly stated by the Court of Appeals:
“[t]he preemption doctrine represents a fundamental limitation on home rule powers. While localities have been invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies ‘the untrammeled primacy of the Legislature to act * * * with respect to matters of State concern.’ Preemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field” (citations omitted).
See, Matter of Cohen v. Board of Appeals of the Village of Saddle Rock, NY2d 395 .
In Hunters for Deer, Inc. v. Town of Smithtown, the Court was faced with the novel question of whether a Town of Smithtown ordinance prohibiting the discharge of “firearms” on private property, within 500 feet of a dwelling (See, Town Code § 160-4 and §160-5) could supersede a less restrictive State law. The Town’s law is stricter than New York’s ECL §11-0931(4)(a) (2), which the State amended in 2014 to reduce bow and arrow setbacks from 500 to 150 feet for bows. The ECL amendment was part of a state wide effort to reduce ballooning deer populations through increased bowhunting opportunities made possible by less restrictive setbacks.
At the center of the litigation was the State’s definition of “firearm.” The Town ordinance defines “firearm” to include a “weapon which acts by the force of gunpowder or from which a shot is discharged by the force of an explosion, as well as an air rifle, an air gun, a BB gun, a slingshot and a bow and arrow.” (See, Town Code §160-2) (emphasis added). The State’s ECL excludes bows and defines “firearm” as “any rifle, pistol, shotgun or muzzle loading firearm which by force of gunpowder, or an airgun . . . , that expels a missile or projectile capable of killing, wounding or otherwise inflicting physical damage upon fish, wildlife or other animals” (6 NYCRR 180.3[a]).
The Court found that the State’s definition of “firearm” does not encompass a bow and arrow, and held that to the extent the Town ordinance seeks to regulate the discharge setback of a bow and arrow within the Town, it is invalid as preempted by the State’s definition. Thus, the Town’s ordinance, which seeks to prohibit the discharge of a bow and arrow is preempted in circumstances where permitted under State law.
While it may not be the “shot heard around the world,” the Court’s rejection of the Town’s home rule authority is another arrow in the quiver of the State’s wildlife management, especially given the statewide importance of coordinated wildlife management.