Monday, February 11, 2019
Is There A Common-Law Right To Hunt (and Fish) Your Own Land?
The Founders understood that governments can often be the biggest obstacle to individual, inalienable rights – those rights that cannot be revoked by some outside (governmental) force. While a representative form of government can be the best protector of individual rights, it can become the “tyranny of the majority” as noted by John Adams and Alexis De Tocqueville.
The matter of inalienable rights is important to farmers and ranchers. Land ownership and the rights associated with land ownership is of primary importance to agricultural businesses and families. One of those rights involves the right to hunt (and fish) the property that an individual owns.
That’s the topic of today’s post – an individual’s rights to hunt (and fish) their own property.
State Regulation of Hunting Rights
All states have an elaborate set of statutes and regulations governing the hunting of wildlife in that particular state. The rules govern hunting on state-owned public land as well as privately owned land. In addition, the hunting rules vary depending on the type of game – big game; small game; fur-bearing or fowl. The state rules also depend on whether the hunter is a resident of the particular state or a nonresident. The rules tend to be less restrictive for residents, particularly those in certain age ranges, than they are for nonresidents. The fees for licenses and/or permits are also much lower for residents than nonresidents, with typical exceptions for full-time students and service members.
As for non-resident landowners, the state rules vary from state-to-state. Kansas, for example, requires a nonresident “hunt-on-your-own-land” deer permit. That permit is available to either a resident or nonresident who actively farms a tract of 80-acres or more in the state. The property must be owned in fee simple. The name on the deed must be denoted in a particular manner.
The Iowa approach is different. Hunting rights in Iowa don’t follow ownership. A nonresident landowner has no inalienable right to hunt their own property – property for which they pay taxes to the state of Iowa. The portion of the Iowa hunting laws defining “resident” and “owner” were the subject of a recent case.
Iowa hunting law allows a resident landowner to obtain annually up to two deer hunting licenses - one antlered or any sex deer hunting license and one antlerless deer free of charge. Iowa Code §483A. A resident landowner may also buy two antlerless deer hunting licenses. “Owner” is defined as the owner of a farm unit who is a resident of Iowa. Iowa Code §483A.24(2)(a)(3). A “resident” is defined as including a person with a principle or primary residence or domicile in Iowa, a full-time student, a non-resident under age 18 who has a parent that is an Iowa resident or a member of the military that claims Iowa residency either by filing Iowa taxes or being stationed in Iowa. Iowa Code §483A.1A(10). Nonresident landowners must apply for antlered licensing. The state allots 6,000 antlered or any sex deer hunting licenses to nonresidents via a lottery system for a fee. If a nonresident landowner does not receive an antlered license through the lottery system, "the landowner shall be given preference for one of the antlerless deer only nonresident deer hunting licenses."
The plaintiff owned 650 acres in southcentral Iowa, but was not domiciled in Iowa. Over the prior six-year period, the plaintiff received nonresident antlered deer hunting licenses through the lottery four times. The other two years the plaintiff obtained a nonresident antlerless deer hunting license. The plaintiff has been able to hunt every year on his property, but as a nonresident landowner and by paying the higher fees associated with being a “nonresident.”
In 2016, the plaintiff, in Carter v. Iowa Department of Natural Resources, No. 18-0087, 2019 Iowa App. LEXIS 119 (Iowa Ct. App. Feb. 6, 2019), filed a declaratory action against the state requesting a ruling establishing him as an "owner" under for purposes of Iowa deer hunting laws. He claimed that not treating him as an “owner” violated his inalienable rights and his equal protection rights under the Iowa Constitution. The state did not respond within 60 days and the action was treated as having been denied. The plaintiff sought judicial review.
The trial court rules for the state. On further review, the appellate court affirmed. While the plaintiff claimed that he had an inalienable right to hunt the property that he owned and paid taxes on to the state of Iowa, the appellate court held that the state’s differential treatment between residents and non-residents for obtaining hunting licenses for antlered deer was reasonable, not arbitrary, and constituted an appropriate use of the state’s police power. The appellate court also determined that the different treatment of residents and non-residents served a legitimate governmental interest in conserving and protecting wildlife that was rationally related to that legitimate governmental interest. The court, citing Democko v. Iowa Department of Natural Resources, 840 N.W.2d 281 (Iowa 2013), noted that 2013 decision held that landownership in Iowa does not give the landowner the right to hunt the land because the landowner has no interest in or title to wildlife on the owner’s property. That wildlife, the Supreme Court had determined in 2013, is owned by the state of Iowa. Thus, there is no common law right to hunt based on ownership. The legislature, as the Iowa Supreme Court noted in 2013, established extensive hunting laws (and the subsequent underlying regulations) that had eliminated that right in a manner consistent with the legitimate state interest of wildlife preservation.
What About Private Farm Ponds?
As noted, the Iowa Supreme Court, in 2013, removed from the “bundle of sticks” of private property ownership, the common law right to hunt wildlife on one’s own property. But what about fish in a pond on privately owned property? Does the landowner have a right to fish their own pond without going through the state? The answer may not be as obvious as it seems it should be. It’s also an issue that is currently being debated in Iowa. Current Iowa law says that the Iowa Natural Resource Commission (Commission) can’t stock private water unless the owner agrees that the private water is opened to the public for fishing. Iowa Code §481A.78. In other words, if the state stocks a private pond, the landowner must make the pond available for public fishing. However, the law allows the Commission to investigate a private pond to determine if the “living conditions” of the fish in the private pond are suitable and then provide breeding stock on the owner’s request. In that instance, the private pond need not be opened for public fishing. Id.
However, this fishing provision of Iowa law has become contentious. Legislation is presently being worked up in the Iowa legislature that would strike that law entirely and replace it with a new provision specifying that the Commission “shall not stock a private pond or lake.” SF 203. The new legislation would allow the Commission to stock a creek or stream flowing through private property. Id. The legislation also specifies that a fishing license is not required to fish on an entirely land-locked private pond so long as it is not located on a natural stream channel or connected via surface water to waters of Iowa. Id.
Apparently, there is no “resident” requirement in the law governing the fishing of private ponds in Iowa. So, a nonresident can fish their own pond even though living out of state, but a nonresident has no common law right to hunt their own property in Iowa. “Wildlife,” however, belong to the state of Iowa while they are present there. That is, of course, unless a resident (or nonresident) collides with wildlife on an Iowa public roadway and incurs damage and/or injury in the collision. Hmmm…. That might be the topic of a future post.
Do you know the rules in your state?