S.C. Court of Appeals issues opinion on enabling statutes for regulations

In South Carolina Department of Natural Resources v. McDonald, three hunters were convicted of taking game while using bait in violation of regulation 2.9. However, when the Department promulgated Regulation 2.9, it incorrectly cited only South Carolina Code section 50-9-150 as the enabling statutory authority. Section 50-9-150 granted the Department authority to prescribe methods for taking game in wildlife management areas. Although another South Carolina Code section--50-11-31--authorized the Department to regulate deer hunting on land other than wildlife management areas, the Department did not cite this section when it promulgated Regulation 2.9.

In 1996, the General Assembly repealed section 50-9-150 and the hunters argued that the repeal of a statute given as the authority for the promulgation of regulation 2.9 bars a prosecution for a violation of that regulation. The Court of Appeals agreed, notwithstanding the presence of other statutory authority that arguably could have supported the regulation but was not cited when the agency promulgated the regulation.