Title of Regulation: 4VAC5-30. Virginia State Parks Regulations (repealing 4VAC5-30-200).

Statutory Authority: § 10.1-104 of the Code of Virginia.

Effective Date: May 7, 2012.

Agency Contact: David C. Dowling, Policy and Planning Director, Department of Conservation and Recreation, 203 Governor Street, Suite 302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email david.dowling@dcr.virginia.gov.

Background: 4VAC5-30-200 stipulates that "No person except employees, police officers, or officers of the department shall carry or possess firearms of any description, or airguns, within the park. This regulation shall not apply in areas designated for hunting by the Department of Conservation and Recreation. This regulation also shall not apply to the carrying of concealed handguns within state parks by holders of a valid concealed handgun permit issued pursuant to § 18.2-308 of the Code of Virginia."

The stated authority for the regulation is found in § 10.1-104 A 4 of the Code of Virginia where the department has broad authority to prescribe rules and regulations necessary or incidental to the performance of duties or execution of powers conferred by law. However, it is the lack of specific statutory authority to regulate firearms upon which amendments to this regulation have been directed and are now repealed.

4VAC5-30-200 is part of the Virginia Administrative Code (VAC) and has been part of the VAC or department regulations since at least 1965 and likely since the State Park System was created in 1936. This regulation originally prohibited all carrying of firearms by anyone other than police officers, other employees of the department, or those engaged in approved hunting activities, but was amended in 2002 to permit the carrying of concealed handguns by those in possession of a valid concealed handgun permit. In response to a September 9, 2002, opinion from Attorney General Kilgore (Opinion 02-074) to Delegate Richard H. Black that found that the Department of Conservation and Recreation exceeded its statutory authority in prohibiting the carrying of concealed handguns by holders of valid permits, Governor Warner by letter on September 23, 2002, instructed the department to amend the regulation in accordance with the opinion. The Attorney General's Office further found that the department could amend the regulation as an exempt action pursuant to § 2.2-4006 A 4 a of the Code of Virginia. The amendments were effective February 12, 2003 (Virginia Register Volume 19, Issue 9, June 2, 2003).

On September 26, 2008, then Attorney General McDonnell (Opinion 08-043) issued an opinion to then Senator Kenneth T. Cuccinelli, II that found that the Department of Conservation and Recreation has only such authority to restrict the open carrying of firearms that is expressly provided by law. The opinion stated that "I find no specific statutory authority granting the Department the authority to prohibit the open carrying of firearms in state parks. A person's right to carry a firearm openly is considered universal within the Commonwealth, subject to definite and limited restrictions upon certain locations and classifications of individuals. Section 18.2-287.4 is the only statute that specifically addresses carrying of firearms in public parks. In the context of parks and public spaces, the General Assembly merely limits certain classifications of firearms and not firearms generally. Under accepted rules of statutory construction, the mention of one thing in a statute implies the exclusion of another. Further, the Department's enabling legislation does not specifically authorize a prohibition against the open carry of firearms."

The opinion further stated that "[i]n light of the General Assembly's explicit statements regarding limitations on carrying and possessing firearms, the Department may not infer such authority from its enabling legislation and prohibit the carrying of firearms not otherwise prohibited within state parks. It is within the sole discretion of the General Assembly to limit the carrying of firearms in parks beyond that restricted by § 18.2-287.4. Additionally, the General Assembly could grant explicit statutory authority to the Department to accomplish such purpose. I find no authority, express or implied, for the Department to prohibit the carrying and possession of firearms within state parks beyond that currently prohibited by law."

On January 14, 2011, Governor McDonnell issued a letter to the Director of the Department of Conservation and Recreation. In the letter, the Governor noted that "I have reviewed the opinion I provided in September of 2008 as Attorney General to then Senator Ken T. Cuccinelli, II regarding the authority of the Department of Conservation and Recreation to issue a regulation prohibiting the open carrying of firearms in State Parks. In summary, the opinion states that because the General Assembly enacted § 18.2-287.4 of the Code of Virginia, it had no intention of further restricting the carrying of firearms in public parks. I am not aware of any legislative action since the issuance of that opinion which would change the conclusion reached therein. Lacking specific legislative authorization to further regulate firearms, the Department of Conservation and Recreation cannot promulgate a regulation that does so. Therefore, I am directing the Department of Conservation and Recreation to cease enforcement of 4VAC5-30-200. The Department should notify all state park officials immediately of this change. Further, I am directing that 4VAC5-30-200 be repealed through an exempt Administrative Process Act regulatory action to bring it into conformity with this opinion and law."

Summary:

This regulatory action repeals 4VAC5-30-200, Firearms, of the Virginia State Parks Regulations.

4VAC5-30-200. Firearms. (Repealed.)

No person except employees, police officers, or officers of the department shall carry or possess firearms of any description, or airguns, within the park. This regulation shall not apply in areas designated for hunting by the Department of Conservation and Recreation. This regulation also shall not apply to the carrying of concealed handguns within state parks by holders of a valid concealed handgun permit issued pursuant to § 18.2-308 of the Code of Virginia.