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Delaware State Sportsmen's Association v. Garvin

Superior Court of Delaware, Kent

October 11, 2018


          Submitted: July 26, 2018

         Upon the Parties' Cross Motions for Summary Judgment GRANTED in part and DENIED in part.

          Francis G. X. Pileggi, Esquire, Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware, Jamie L. Inferrera, Esquire, (pro hac vice) Eckert Seamans Cherin & Mellott, LLC, Pittsburgh, Pennsylvania, Attorneys for Plaintiffs.

          Ralph K. Durstein, III, Esquire and Devera B. Scott, Esquire, Deputy Attorneys General, Delaware Department of Justice, Dover, Delaware, Attorneys for Defendants.


          Jeffrey J Clark, Judge

         Plaintiffs Delaware State Sportsman's Association, Bridgeville Rifle & Pistol Club, Ltd. and John R. Sylvester (hereinafter "Plaintiffs") seek a declaratory judgment regarding their rights under regulations issued by the Delaware Department of Natural Resources and Environmental Control and the Delaware Department of Agriculture (hereinafter collectively the "Agencies"). Plaintiffs challenge newly promulgated regulations that they allege infringe upon their rights to keep and bear arms and to be free from unreasonable searches and seizures.

         For the reasons discussed below, a straightforward application of the Delaware Supreme Court's decision in Bridgeville R. & P. Club v. Small[1](hereinafter "Bridgeville F) requires the Court to hold that some of the Agencies' newly promulgated regulations violate Article I, Section 20 of the Delaware State Constitution. Furthermore, other portions of the regulations require a State Park or Forest guest to produce identification to law enforcement officers absent reasonable articulable suspicion of illegal activity. Accordingly, they violate the Fourth and Fourteenth Amendments to the United States Constitution as well as Article I, Section 6 of the Delaware Constitution. Finally, with one exception, Bridgeville I's reasoning demonstrates that the General Assembly did not statutorily preempt the field of firearm regulation. For these reasons, and those that follow, the Parties' cross motions for summary judgment are GRANTED in part and DENIED in part.

         Background and Stipulated Facts

         On December 7, 2017, in Bridgeville I, the Delaware Supreme Court invalidated regulations prohibiting firearm possession in State Parks and Forests.[2]The Department of Natural Resources and Environmental Control (hereinafter "DNREC") and the Delaware Department of Agriculture (hereinafter "DDA") had promulgated these regulations many years before the Delaware Supreme Court held them to be unconstitutional in Bridgeville I[3] After the Bridgeville I decision, the Agencies drafted emergency regulations that took effect on December 26, 2017, to temporarily fill the void left by that decision.[4]

         The Agencies invited and received public comment regarding the interim regulations to make them final. They also published them in the February 1, 2018, issue of the Delaware Register of Regulations.[5] Thereafter, the Agencies scheduled public workshops regarding the new regulations. In support, they created a series of detailed satellite maps delineating the sensitive areas where visitors, other than concealed carry permit-holders and active and qualified retired law enforcement officers, were barred from possessing firearms. The Agencies then held a joint public hearing on March 12, 2018, and then accepted further public comment.

         The Agencies' record includes, inter alia, the findings of fact within the orders promulgating the final regulations, the hearing officer's report dated April 9, 2018, and the two legal responses by Mr. Durstein addressed to the Agencies' hearing officer, dated April 10, 2018. It also includes correspondence and studies submitted by both sides of the gun rights issue.

         On April 16, 2018, the Secretaries of DNREC and DDA extended the effective dates of the interim regulations for an additional 60 days and signed orders promulgating final revised regulations. The final regulations were published in the Register of Regulations on May 1, 2018, [6] and took effect on May 11, 2018.

         Eleven days after the new regulations' effective date and within thirty days of publishing, the Plaintiffs filed a complaint seeking a declaratory judgment. The Plaintiffs allege that many of the DNREC regulations amending 7 Del. Admin. C. 9201-21.1 (hereinafter "DNREC Regulations") and the DDA regulations amending 3 Del. Admin. C. 402-8.8 (hereinafter "DDA Regulations") were unconstitutional and violated several statutory restrictions. In response, the Agencies rely upon information from their public hearings and comment period to demonstrate a sufficient basis under the Administrative Procedures Act to justify the new regulations. The Agencies also emphasize their substantial efforts to comply with the holding of Bridgeville I. They maintain that their new regulations comply with the Delaware Supreme Court's decision.

         In summary, the challenged final regulations now permit any person with a valid concealed carry permit and present or past law enforcement officers to possess firearms throughout State Parks and Forests. The regulations also delineate designated areas where "open carry" is banned. Other than in those designated areas, the regulations no longer prohibit open carry in State Parks and Forests. The final regulations also permit law enforcement officers to perform background checks of all persons carrying firearms, and to demand persons legally carrying concealed weapons to produce their permits upon request. Finally, the regulations also authorize the Agencies to grant exceptions to both concealed carry requirements and open carry restrictions.

         After the parties stipulated to the facts comprising the administrative record, and to a number of other facts, the Plaintiffs moved for summary judgment. The Agencies filed a cross motion for judgment on the pleadings. Thereafter, the parties stipulated to an expedited briefing schedule and the Court held oral argument on July 20, 2018.

         Standard of Review and Burden of Proof

         Plaintiffs seek a declaratory judgment pursuant to 10 Del. C. §§ 6501 and 6502 that give the Court the power to "declare rights."[7] When an interested person's[8] rights are affected by a statute, ordinance, contract or franchise, that person "may have determined any question of construction or validity arising under [it], and obtain a declaration of rights, status or other legal relations thereunder."[9] Although the declaratory judgment statute does not expressly address regulations, the Administrative Procedures Act authorizes an aggrieved person to file a declaratory judgment to challenge agency regulations.[10]

         The Court may refuse to enter a declaratory judgment when granting such a judgment "will not terminate the uncertainty or controversy giving rise to the proceeding."[11] A central concern accompanying declaratory judgments is to avoid hypothetical questions because judicial resources are limited. The judicial branch's contributions to the legal system is "[interstitial] and ... it is required to do so by reason of specific facts that necessitate a judicial judgment."[12] Nevertheless, the purpose of a declaratory judgment "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and this purpose is to be liberally construed and administered."[13]

         The burden of proof in this case, as highlighted by the parties, is a complex amalgamation. Here, Plaintiffs challenge (1) all the regulations as illegal because they allege that they are statutorily preempted, and (2) a portion of the regulations as illegal because they are unconstitutional. Generally, the burden of proof in challenging the legality of regulations rests on the plaintiff.[14] On the other hand, in the context of a challenge to regulations based upon their alleged unconstitutionality, the burden is on the agency to establish their constitutionality.[15]

         Regarding statutory challenges to regulations, pursuant to 29 Del. C. § 10141(e), an agency action under review "shall be presumed to be valid and the complaining party shall have the burden of proving either that the action was taken in a substantially unlawful manner and that the complainant suffered prejudice ... or that the regulation ... was adopted without a reasonable basis on the record or is otherwise unlawful."[16] With regard to a constitutional challenge, the regulations are subject to intermediate scrutiny.[17] In this case, to survive intermediate scrutiny, the Defendants as agencies of the State have the burden to:

first, articulate their important governmental objectives in enacting the Regulations; second, demonstrate that the Regulations are substantially related to achieving those objectives; and, third, show that the Agencies have not burdened the fundamental right to bear arms in self-defense more than is reasonably necessary to ensure that the asserted governmental objectives are met. The Agencies are required to show more than a "general safety concern."[18]

         With these burdens in mind, the posture of the case is one of cross-motions for summary judgment. Initially, the Agencies moved for judgment on the pleadings while the Plaintiffs moved for summary judgment. At oral argument, the Agencies conceded that their motion should be considered as one for summary judgment because both parties rely extensively upon factual matters outside the pleadings.[19]

         In reviewing a motion for summary judgment, when viewing the facts in the light most favorable to the nonmoving party, the moving party must demonstrate "that there are no material issues of fact still in dispute and that the moving party is entitled to judgment as a matter of law."[20] The mere fact that both parties filed motions for summary judgment "does not act per se as a concession that there is an absence of factual issues."[21] However, "where the parties have not presented to the court that there is an issue of material fact, the court shall deem the motion to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motion[s]."[22] Here, based on the stipulated facts and cross motions for summary judgment, it is appropriate for the Court to decide this case as a matter of law.

         This matter is justiciable because both the individual Plaintiff and the organizational Plaintiffs have standing and the action constitutes an actual controversy for purposes of the Declaratory Judgment Act.

         There are a number of requirements for the Court to find a matter to be justiciable. The two requirements for justiciability challenged by the Agencies include the Agencies' claim that the Plaintiffs do not have standing and that the case is not an actual controversy.[23]


         The Agencies challenge the standing of both the individual Plaintiff, Mr. Sylvester, and the organizational Plaintiffs. At the outset, the Court recognizes that it has jurisdiction to consider the lawfulness of a regulation promulgated by an agency when an aggrieved party brings an action for declaratory relief.[24] This Court has expressed its preference in these cases for a review on the merits because pre-enforcement review often benefits both those subject to the regulations and those who issue them.[25] Those subject to a contested regulation benefit from pre-enforcement review because their alternative is to make the Hobson's choice between complying with the regulation they believe to be invalid or risking possible sanctions.[26] Those issuing the regulation may also benefit from pre-enforcement review because, if a regulation is found invalid during pre-enforcement review, it may still be revised instead of simply being declared void.[27] In addition, it helps minimize costly and burdensome litigation by not forcing agencies to defend the legality of their regulations piecemeal across many separate enforcement actions.

         The Court is not clear as to what extent the Agencies challenged the Plaintiffs' standing in Bridgeville I. This case follows on the heels of Bridgeville I and all parties involved in this case were involved in that case. The Court also recognizes that the Delaware Supreme Court did not expressly address the 30-day filing deadline required by 29 Del. C. § 10141, [28] The plaintiffs in that case filed their case well outside the 30-day statutory limit and argued against the constitutionality of decades old regulations. Accordingly, since the Supreme Court decided Bridgeville Ion the merits, its decision can fairly be read to provide that for a constitutional challenge, the 30-day statutory limit does not apply. In such cases, the regulation can later be challenged through a declaratory judgment action. Although the Delaware Supreme Court also decided Bridgeville I on administrative grounds, it did so with a constitutional underlay. On balance, since that case was decided within the last year and involved primarily the same parties, this Court will not contradict the Delaware Supreme Court's implied finding that the parties have standing to challenge these regulations.

         Notwithstanding the Bridgeville I decision, the Agencies argue that Mr. Sylvester has not sustained an injury in fact because he is not an "aggrieved person." Independent of the Delaware Supreme Court's implied finding on the issue, the Court separately finds that Plaintiffs have standing to bring a claim for declaratory relief. Plaintiffs filed this case on May 22, 2018, twenty-two days after the regulations were published on May 1, 2018, and thus within the 30-days required by statute. An individual or organization is "aggrieved" for purposes of the statute when the individual or organization is subject to the regulations.[29] The party need not have suffered any injury in fact before having the ability to challenge the regulations.[30] In fact in Doe v. Wilmington Housing Authority[31] the Delaware Supreme Court held that a plaintiff does not even need to own a firearm to have standing to seek redress from a violation of his or her constitutional right.[32]

         In the analogous federal context, the Federal Court of Appeals for the Seventh Circuit recognized it as "well-established" that pre-enforcement challenges of regulations are within the purview of Article III of the United States Constitution for individual standing purposes.[33] As the Seventh Circuit noted, an individual plaintiff need not violate a regulation and risk prosecution in order to challenge it.[34] The very "existence of a statute [or regulation] implies a threat to prosecute, so pre-enforcement challenges are proper, because a probability of future injury counts as 'injury' for the purpose of standing."[35]

         In the case at hand, Mr. Sylvester has individual standing because he is sufficiently aggrieved under the law. Mr. Sylvester, as a resident of Pennsylvania who frequents Delaware State Parks and Forests, desires to bring his firearms into the Parks and Forests, and is therefore subject to the disputed regulations. He participates in rifle competitions in the State of Delaware and but for the regulations at issue that prohibit firearms in the State's camping areas and lodges, he would avail himself of the overnight accommodations available in State Parks and Forests. The Agencies' regulations prevent him from keeping his rifle in a lodge, tent or campground while he is en route to a rifle competition and thus the regulations substantially affect his Delaware Constitutional rights. If Mr. Sylvester were to keep his firearms in a restricted area, such as a tent or lodge, he would be subject to criminal sanctions.[36]

         The Agencies also contest the organizational Plaintiffs' standing notwithstanding Bridgeville I. With regard to organizational standing, both parties rely upon Oceanport v. Wilmington Stevedores.[37] There, the Delaware Supreme Court held that an organization may sue on behalf of its members if (1) the interests to be protected by the suit are germane to the organization's purpose; (2) neither the claim asserted nor the relief requested requires the participation of individual members; and (3) the organization's members would otherwise have standing.[38]

         Determining whether an organization's interests are germane for purposes of this test is an undemanding standard that requires only "mere pertinence between the litigation subject and organizational purpose."[39] This standard only bars those whose litigation goals and organizational purposes are totally unrelated.[40] The Delaware State Sportsmen's Association is an organization that promotes and protects the interests of gun owners in and around Delaware. Its members include competitive shooters, casual recreational shooters, hunters, collectors and persons with interests in personal and home protection. Similarly, the Bridgeville Rifle and Pistol Club conducts rifle and pistol sporting competitions and its members often seek to use facilities in Delaware State Parks and Forests. Pursuant to the DNREC and DDA regulations at issue, the organization's members who do not have concealed carry permits or are not retired law enforcement officers are prohibited from using camping and lodging facilities while possessing their firearms. The organizational interests to be protected in this case, therefore, include the right to bear arms for recreational and self-defense purposes. Thus, given the Plaintiff organizations' purposes to protect and promote such rights, the Court finds the first prong of the test to be satisfied.

         The organizational Plaintiffs also meet the second prong because neither the claim asserted nor the relief requested requires their individual members' participation. While Mr. Sylvester is included among the Plaintiffs in this case, and he himself satisfies individual standing, he is not a required party for either the claim or for the relief requested. Furthermore, no individual members of the organizations seek monetary damages and they are not required to participate in the case on an individual basis for the Court to determine if the regulations violate the Delaware Constitution.

         The third prong for the test for organizational standing is easily satisfied. Mr. Sylvester, as a member of the organizations, has standing in this case. Thus, many of the other organizational members like him who participate in shooting competitions will also satisfy the requirements for individual standing. Since the three Oceanport requirements are satisfied, both Bridgeville and Sportsmen have organizational standing.

         The cases relied upon by the Agencies in disputing the Plaintiffs' standing are distinguishable. For instance, the Agencies rely on Stevenson v. Delaware Dept. of Nat. Resources.[41] That case is distinguishable because those plaintiffs could not establish a concrete injury that could be redressed by a favorable decision.[42] The injury to those plaintiffs was merely "conjectural or hypothetical."[43] As opposed to the matter at hand, the plaintiffs in Stevenson failed to establish standing with data, research and expert opinions in order to prove their injury under regulations regulating greenhouse gases. The challenge to the regulation in Stevenson was based not on a constitutional issue, but rather on alleged non-compliance with statutory requirements and the financial harm that the non-compliance allegedly caused the plaintiffs.[44] In this case, the facts are much simpler and expert opinion and data are not necessary to evaluate and to challenge regulations that allegedly violate a fundamental constitutional right. Finally, as discussed above, the injury to the Plaintiffs is not "conjectural or hypothetical" and it can be redressed by a favorable decision.

         Actual Controversy

         The second requirement for justiciability raised by the Agencies is whether this case involves an actual controversy. The Agencies argue that this action does not, while Plaintiffs argue that it does. At the outset, as with the standing issue, this suit is as much of an actual controversy as the claim in Bridgeville I. There, the Delaware Supreme Court impliedly found the case to be an actual controversy before issuing its decision. Since the Agencies evidently did not contest this issue in the first instance, but do now, the Court will address it.

         The Delaware Supreme Court has articulated the prerequisites for an "actual controversy," for purposes of declaratory judgments, as follows:

(1) [i]t must be a controversy involving the rights or other legal relations of the party seeking de[c]laratory relief; (2) it must be a controversy in which the claim of right or other legal interest is asserted against one who has an interest in contesting the claim; (3) the controversy must be between parties whose interests are real and adverse; [and] (4) the issue involved in the controversy must be ripe for judicial determination.[45]

         Applying these factors, the case is an actual controversy and does not involve a hypothetical question. First, the regulations at issue substantially impact the rights of both the individual and organizational Plaintiffs as provided in the previous standing discussion. Second, the Plaintiffs assert their rights against the Agencies, who likewise oppose the claim because they enacted the regulations in dispute. Third, the Plaintiffs and the Agencies have interests that are real and adverse. Namely, if Mr. Sylvester were to violate the regulations, he could face a potential criminal sanction. On the other hand, DNREC and DDA have expended considerable resources in drafting these regulations. They would have to invest even more resources to potentially redraft them piecemeal after future narrow court decisions addressing singular issues.

         Fourth and finally, the issue is ripe for judicial determination. The ripeness doctrine is invoked to determine whether a dispute has matured to a point that it warrants a decision.[46] Ripeness of an issue is essential for the matter to be justiciable, because "[u]nless a controversy is 'ripe for judicial determination,' a court may simply be asked to render an advisory opinion."[47] A matter is ripe when "[t]he state of a dispute has reached, but has not passed the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made."[48]

         This issue must be evaluated by assessing whether "given the facts at hand, a sufficient threat of enforcement exists such that judicial review is warranted."[49] Here, the regulations became effective on May 11, 2018, and are already being enforced. The ripeness of a matter is determined by using practical judgment in balancing whether "postponing review until the question arises in some more concrete and final form, [is] outweighed by the interests of those who seek relief from the challenged action's immediate and practical impact upon them."[50] Declining Court review in this case would mean that individuals like Mr. Sylvester, and members of the organizational Plaintiffs would have to risk criminal sanctions or abide by regulations they believe to be unconstitutional. This is the Hobson's choice that, in fairness, is inappropriate. The Plaintiffs are entitled to seek review of the challenged regulations.

         Delaware statutes have not completely preempted the field of firearms regulation.

         In Bridgeville I, the Delaware Supreme Court's holding singularly answers the question at hand; the Agencies' recently promulgated regulations were not preempted per se by Delaware statutes or the Delaware Constitution. There, the Court held that DNREC and DDA's regulations violated the Delaware Constitution by broadly banning firearms in State Parks and Forests. The Court separately held that they violated administrative law requirements by promulgating unconstitutional regulations.[51] The Court, however, did not hold that the Agencies lacked authority to enact firearm related regulations in any instance.[52] In fact, the Delaware Supreme Court had previously recognized in Doe v. Wilmington Housing Authority that "[s]ome regulation of possessing firearms ... could pass intermediate scrutiny, and thus governmental agencies are not prohibited from enacting firearm regulations."[53]

          Notwithstanding this recognition in Doe and Bridgeville I, the Plaintiffs argue that the Agencies have no authority to enact or enforce the disputed regulations because the field has been preempted by the General Assembly. DNREC may promulgate and enforce regulations pursuant to 7 Del. C.§ 6010, while DDA has the power to promulgate rules and regulations pursuant to 3 Del. C. § 101. Furthermore, DNREC has the authority to both dedicate and administer State Parks, under 7 Del. C. § 4701. Likewise, DDA has similar authority over State Forests pursuant to 3 Del. C. § 1001. Nevertheless, Plaintiffs argue that despite these enabling statutes, neither agency has the authority to restrict the possession of firearms in State Parks and Forests through regulations because such regulations would be inconsistent with a number of Delaware statutes.

         For instance, Plaintiffs rely significantly on the Delaware Code provision prohibiting "municipal governments" from enacting firearm restriction ordinances that restrict firearm use.[54] At the outset, the State and its agencies are not addressed by that section. Furthermore, any agency or political subdivision may adopt ordinances or regulations that affect similar areas to those addressed by legislation as long as they do not conflict with a law passed by the General Assembly.[55] Where there is a conflict between the statute and a regulation, the statute will always prevail.[56] In this regard, the test in preemption analysis is whether the state statute was intended to be exclusive.[57] Legislative intent to make a statute exclusive may be either express or implied.[58]

         The Delaware Supreme Court in Cantinca v. Fontana[59] set forth the benchmark for evaluating these two preemption avenues as follows:

Express exclusivity intent exists where the statutory text or legislative history explicitly provides or demonstrates that the state statute is intended to replace or prevail over any pre-existing laws or ordinances that govern the same subject matter. Implied exclusivity intent may be found where the regulations are inconsistent; for example, where a state statute prohibits an act that is permitted by a local ordinance to be inconsistent by implication, however, the local ordinance must hinder the objectives of the state statute.[60] (emphasis added).

         In this case, there was no express preemption of the Agencies' power to adopt regulations regulating gun use. While Article I, Section 20 of the Delaware Constitution gives citizens the "right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use," it does not expressly preempt any other rules, regulations or ordinances.[61] Furthermore, there is no statute prohibiting state agencies from adopting regulations regarding firearm possession as there is with municipalities pursuant to 22 Del. C. § 111.

         There was also no implied preemption in this case. While the Court acknowledges the significant restrictions placed by the General Assembly on the possession and use of firearms, [62] these restrictions do not demonstrate that the General Assembly intended to impliedly occupy the entire field. Namely, the statutes that Plaintiffs rely upon are all narrowly tailored to address specific issues, such as prohibiting the sale of firearms to minors or further criminalizing the possession of a firearm during a felony. Nothing about regulating those separate, narrow subjects, demonstrates the General Assembly's intent to exclusively occupy the field of firearm regulation.

         While the Agencies may only act within the confines of the legislative acts creating them, [63] they also derive authority to promulgate regulations from those same acts. Both Agencies have broad statutory power delegated to them by the General Assembly to promulgate regulations.[64] Each Secretary also has broad general authority to administer their agencies.[65] Since DDA administers State Forests and DNREC administers State Parks, it follows that they have broad authority to regulate conduct within those areas. The Agencies are not prohibited from regulating firearm use within their respective areas simply because the General Assembly has extensively regulated firearms through statutes. Thus, while the Court finds for the reasons discussed below that some of the regulations at issue are unconstitutional, the Agencies are not prohibited from adopting firearm regulations because the field is preempted. Namely, Bridgeville Fs holding recognizes that the Agencies may promulgate firearm regulations so long as they are not inconsistent with the laws of Delaware, and also pass intermediate scrutiny.

         Some of the regulations defining sensitive areas are unconstitutional in light of Bridgeville I.

         The Agencies assert that all of their regulations are lawful. In the alternative, they argue that if the Court disagrees, it should examine the regulations individually and find any unconstitutional portions to be severable. In the Agencies' parlance, they request an ala carte review. Plaintiffs also argue, based on their constitutional challenges, that the Court should examine the regulations line by line. Since the Plaintiffs' argument regarding total preemption is without merit, the Court will examine the challenged regulations from both DNREC and DDA line by line as requested.

         Article I, Section 20 (hereinafter "Section 20") of the Delaware Constitution creates the rights to balance against the Agencies purposes in regulating firearm use in State Parks and Forests. As the Delaware Supreme Court recognized, Section 20 provides broader protection regarding gun rights than the Second Amendment to the United States Constitution.[66] Bridgeville I and Doe v. Wilmington Housing Authority turned on a Delaware Constitutional provision. Because that provision provides greater protection then the Second Amendment, the Court will not address Plaintiffs' Second Amendment arguments.

         In Doe, the Delaware Supreme Court confirmed that Section 20, though passed in 1987, confirmed the long-standing rights "of responsible citizens to lawfully carry and use firearms in our state."[67] In recognizing this right, our Supreme Court confirmed again that Delaware is an "open carry" state.[68] This right to bear arms includes the right to do so for purposes of hunting, recreation and protection of self and family both inside and outside the home.[69]

         Although Section 20 preserves greater rights greater than those preserved in the Second Amendment, the right to public carry for self-defense is not absolute.[70] In applying the standard set forth in Doe, the Delaware Supreme Court in Bridgeville I confirmed that intermediate scrutiny must be applied when firearm restrictions are not a complete ban.[71] Moreover, the Supreme Court recognized that the "rights of Delaware citizens to defend themselves with firearms is especially critical 'when the intervention of society on their behalf may be too late to prevent injury.'"[72]

         A primary area of contention includes the Agencies' findings regarding sensitive areas that they refer to as "designated areas." At the outset, the new regulations permit persons with concealed carry permits and law enforcement officers to possess firearms throughout the State Parks and Forests, including in designated areas. However, the new regulations prohibit open carry or possession of firearms in the designated areas if a person is not a member of law enforcement or is not a concealed carry permit holder. Accordingly, the challenged regulations restrict only open-carry within these designated areas.

         Both Agencies promulgated similar, parallel regulations, so they will be jointly addressed by the Court. First, DNREC promulgated the following definition of "designated areas":

21.1.1 Designated areas shall include park offices, visitor centers, nature centers, bathhouses, restaurants and snack bars, stadiums and facilities while used for sporting events, concerts, and festivals, museums, zoos, stables, educational facilities, dormitories, playgrounds, camping areas, swimming pools, guarded beaches, and water parks, and shall be identified by appropriate signage.[73]

         Likewise, DDA promulgated the following definition of "designated areas":

8.8.1 Designated areas shall include State Forest Offices, education centers, and lodges, and shall be identified by appropriate signage.[74]

         While the Plaintiffs originally argued in their briefing that all designated areas set forth in the regulations above were unconstitutional, they narrowed their constitutional challenge during oral argument to (1) camping areas in DNREC Regulation 21.1.1 and (2) lodges in DDA Regulation 8.8.1. Separately, while cabins were not included as designated areas in either set of regulations, the Plaintiffs repeatedly addressed cabins in their briefing and at oral argument. Plaintiffs no longer contest that areas such as bathhouses, stadiums, museums and offices qualify as sensitive. Based on the Plaintiffs' representations at oral argument, the Court deems all constitutional challenges regarding those areas to be withdrawn.

         The administrative record does not support a finding that the Agencies' designation of camping areas as sensitive survives intermediate scrutiny.

         In Bridgeville I the Delaware Supreme Court invalidated the Agencies' blanket restrictions on firearms and held that:

[t]he limited ability to have a hunting rifle or shotgun while engaged in a controlled hunt on State park or forest land does not fulfill and cannot substitute for the people's right to have a firearm while camping overnight in a State park . . ..The Regulations not only unduly burden that Constitutional right, they eviscerate it all together.[75]

         The Agencies' argument that this portion of the decision was qualified to apply to only complete restrictions of firearms is not availing. In this vein, the Agencies argue strenuously and persuasively regarding the differences between our State Parks and Forests and the expansive forests and parks in the west where camping is not segregated to controlled areas. Nevertheless, the above quoted language in the Bridgeville I decision signals strongly that prohibiting the right to possess a firearm while camping overnight would face a high hurdle in passing intermediate scrutiny. In fact, the language quoted above goes so far as to actually define the ability to possess firearms at a camp site as being within the definition of the fundamental right at issue.

         While the Delaware Supreme Court in Bridgeville I held that there "certainly could be some 'sensitive' area in State Parks and State Forests where the carrying of firearms may be restricted," the Agencies must justify their decision to delineate sensitive areas so as not to infringe on Section 20 rights.[76] In Bridgeville I, the Court gave the following guidance to evaluate whether an area in a State Park or Forest could constitute a sensitive area warranting such restrictions:

[i]n contrast to a permissible sensitive place such as a courthouse, where visitors are screened by security, most State Parks and State Forests do not have controlled entry points. One can easily enter a State Park or State Forest with a weapon-either intentionally or by inadvertently wandering across a State Park boundary while exercising the right to open carry .... Whereas courthouses are supervised by law enforcement personnel or easily accessible to law enforcement and other emergency responders, making the need to defend oneself with a personal firearm seemingly less acute, State Parks and State Forests are relatively remote and, for example, have less than thirty rangers to police Delaware's entire State Parks.[77]

         The Delaware Supreme Court's guidance quoted above can be distilled to the following three factors that the Court must evaluate in determining if an area's designation as sensitive satisfies intermediate scrutiny. Namely, these factors include whether the area is: (1) one with a controlled entry point; (2) where visitors are screened by security; and (3) where an area is supervised by law enforcement personnel or easily accessible to law enforcement and other emergency responders.[78]

         The Court considered the arguments of the Agencies and has thoroughly reviewed the Agencies' rulemaking record. The Agencies articulated the basis for their factual findings as required by 29 Del. C. §10118. Included in the Administrative Procedures Act are agency obligations to provide a "[b]rief summary of [their] findings of fact with respect to the evidence and information [of record]"[79] The Agencies' decisions to adopt rules or regulations must "be supported by [their] findings as to the evidence and information received."[80]

         A review of this record demonstrates that the Agencies worked diligently during their rulemaking proceedings. In advocating that their decision to include camping areas as a sensitive area survives intermediate scrutiny, the Agencies emphasize that the designated areas make up less than one percent of the total area of the State Parks and Forests and that firearms are still permitted in the other ninety-nine percent. While the Court appreciates that argument, it does not find it wholly persuasive, since the one percent of the State Parks and Forests that the firearms are banned are the parts where many visitors spend much of their time. Moreover, that argument does not address the factors the Agencies should have addressed when evaluating camping areas. Despite the regulations' prohibition against firearms in only small geographical sections under Bridgeville I's reasoning, the burden it places on visitors in camping areas is still substantial.

          The Agencies, while arguing the appropriateness of their designation and emphasizing the expansive public record, do not point to evidence or facts found during their rulemaking process that justify designating camping areas as sensitive areas. The record includes generalized studies regarding gun safety. However, nothing within those studies addresses why a camp site is a sensitive area. Counsel for the Agencies filed "Legal Response Memoranda" that included the only area in the record articulating why camping areas should be considered sensitive. It provides legal arguments, not evidence, that (1) they are "contained spaces", (2) not remote but rather in areas regulated by permit; and (3) that permitting firearms in camp sites would present unacceptable risks to children. This legal argument from the Agencies offered in support of designating camp sites as sensitive, however, is unsupported by evidence of record.

         The Court has reviewed the summary of studies provided by the Giffords Center to Prevent Gun Violence and Giffords Law Center's comments submitted to the hearing officer. Neither the summarized studies nor the comments on the proposed regulations address camping areas. They do address gun imposed dangers to children in crowded areas and reference increased stress placed upon children in areas where children frequent. In this sense, the studies do support, in part, the Agencies' governmental objectives when designating areas such as public beaches, resource centers, and bathhouses as sensitive. In contrast, the studies, as with the remainder of the record, do not address how camp sites have the above described attributes.

         In determining whether the record substantiates that camping areas are sensitive areas, the Court recognizes that camping areas have no controlled entry points other than a reservation check-in site. While there may be a gatekeeper's shed at the entrance to the State Parks, campers and visitors are not screened by security in any manner. As the Supreme Court noted in Bridgeville I, anyone could stumble into a camping area with a firearm without park personnel's knowledge.[81] The Agencies' arguments are conclusory with regard to the controlled entry point factor.

         Camp sites are also not monitored by law enforcement. As the Delaware Supreme Court recognized in Bridgeville I, there are approximately thirty DNREC law enforcement officers statewide.[82] As was also emphasized in Bridgeville I, DDA Hunting and Rules and Regulations specifically stress that in State Forests, there is no protection available to campers, stating that "[c]amping is at your own risk" and that "there is no after-hours, nighttime or weekend security."[83] In many instances, the camping areas are located miles from the nearest town and it would take law enforcement and emergency personnel a substantial time to reach the camping area in an emergency. Accordingly, with regard to this factor, the Agencies' designation of camping areas as sensitive does not pass intermediate scrutiny.

         To satisfy intermediate scrutiny, the government must articulate important governmental objectives, and then demonstrate that the regulations are substantially related to achieving those objectives without burdening the fundamental right to self-defense more than is reasonably necessary.[84] While the Agencies claim that these regulations will make the State Parks and Forests safer, they still rely upon only a general safety concern to demonstrate an "important governmental objective."[85] Even assuming that the governmental objective was sufficient to meet the intermediate scrutiny test, there is no evidence in the record in the Agencies' rulemaking proceedings that demonstrates that the regulations are substantially related to achieving this objective. Moreover, there is simply no evidence in the rulemaking record regarding any meaningful security or controlled entry points in camping areas.

         Finally, by banning firearms in camping areas, the regulations burden the fundamental right to bear arms in self-defense more than is reasonably necessary. Bridgeville /recognized the need for protection of self and family while campingin a state park overnight as a fundamental right recognized by Section 20. The effect of including camp sites within sensitive areas forces State Park and Forest visitors to give up their right to self-defense in order to camp overnight in those areas. The right for self-protection, as recognized by the Delaware Supreme Court, is unduly burdened when an overnight guest is banned from possessing his or ...

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