Wednesday, January 23, 2013

The right to hunt, the right to fish: Just another wedge issue, a threat—or maybe a boon—to conservation?

There is a newly discovered, “ancient” right making its way into state constitutions across the country these days.  It is alternatively packaged as the “right to hunt,” the “right to fish,” the “right to trap” or all three.  I became aware of this issue when my state, Idaho, overwhelmingly passed such a constitutional amendment last November. Initially, I thought this was just another “only in Idaho” story:  people here are gun-happy, hunting and fishing-loving souls.  (For the record, I am an occasional fisher, and am not opposed to hunting or fishing).  But then I began to look into it, and it turns out that seventeen—yes, seventeen—states have amended their constitutions with one of these right to hunt-fish-trap provisions. 

Apparently these provisions are being pushed by the National Rifle Association (NRA) and related sports groups who believe that latte-sipping liberals in cities won’t stop at trying to get rid of assault rifles, but will also try to eliminate the right to hunt anything—even deer,pheasant, you name it.  Perhaps that is truly the origin of these provisions, but if so, I wonder how much this strategy was thought through.  As I’ve read the provisions, I can’t help but wonder if some court won’t end up using these newly proclaimed rights as tools for conservation.  Here is a quick look at how that might play out.

Vermont—that bastion of liberalism—was the first state to grant the right to hunt way back in 1777. According to the National Conference of State Legislatures, other states realized the necessity for the right to hunt-fish-trap much later:  Alabama (1996); Minnesota (1998); North Dakota (2000); Virginia (2000); Wisconsin (2003); Louisiana (2004); Montana (2004); Georgia (2006); Oklahoma (2008); Arkansas (2010); South Carolina (2010); Tennessee (2010); Idaho (2012); Kentucky (2012); Nebraska (2012); and Wyoming (2012). 

Several sites have already collected the text of the right to hunt-fish-trap constitutional provisions, such as this collection by the National Shooting Sports Foundation.  They are worth reviewing in their entirety as, to my eye, they reflect a surprising diversity of language given the fact that there appears to be a major group like the NRA behind this.  I do want to highlight just a couple of the provisions, however, to illustrate what I think may be unintended effects of these provisions.  First, let’s look at Alabama’s provision passed in 1996:

All persons shall have the right to hunt and fish in this state in accordance with law and regulations.

Short and sweet. Compare that to the provision recently passed in Idaho:

The rights to hunt, fish and trap, including by the use of traditional methods, are a valued part of the heritage of the State of Idaho and shall forever be preserved for the people and managed through the laws, rules and proclamations that preserve the future of hunting, fishing and trapping. Public hunting, fishing and trapping of wildlife shall be a preferred means of managing wildlife. The rights set forth herein do not create a right to trespass on private property, shall not affect rights to divert, appropriate and use water, or establish any minimum amount of water in any water body, shall not lead to a diminution of other private rights, and shall not prevent the suspension or revocation, pursuant to statute enacted by the Legislature, of an individual's hunting, fishing or trapping license.

What’s interesting about the Idaho provision is that what the first sentence giveth, the subsequent sentences taketh away.  Yes, the Idaho provision explicitly states that “hunting, fishing, and trapping shall be a preferred means of wildlife management.”  But, the Idaho provision also states that this does not otherwise provide a right of trespass on private property; that the provision cannot be used to, essentially, lessen any water right or guarantee an in-stream flow; and that it does not “lead . . . to the diminution of other private rights.” 

Now, go back to the Alabama provision, which has none of the explicit “take backs” of the Idaho provision. Does that mean that the Alabama provision could potentially affect trespass on private property; affect water rights; guarantee in-stream flows; or lead to the “diminution of other private rights”? Take a look at Minnesota’s provision and ask the same questions:

Hunting and fishing and the taking of game and fish are a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good.

And now ask those questions of North Dakota:

Hunting, trapping, and fishing and the taking of game and fish are a valued part of our heritage and will be forever preserved for the people and managed by law and regulation for the public good.

Do these provisions that don’t “taketh away” like the Idaho provisions potentially affect private rights or water rights?  I don’t have the answers, only questions, because in my (admittedly, very brief) research I found no cases that actually applied any of these newly minted right to hunt-fish-trap provisions.  Nonetheless, I think many might have viewed these provisions as anti-conservation, or anti-environmentalist in nature.  It might play out that way, but I’m not sure it is necessarily destined to. 

Several arguments.  First, ostensibly the right to hunt-fish-trap imbues not just to this generation, but also to subsequent generations, as do all other constitutional rights.  As such, we would seemingly have an obligation to take care of those wildlife resources in a manner that would maintain the right to hunt-fish-trap in perpetuity not just for state residents today, but for those of tomorrow.  This is squarely in line with traditional notions of sustainability:  using resources today in a manner that does not diminish their use for future generations.  Second, many of the animals that would be covered by a right to hunt-fish-trap would seemingly include those that are exposed to climate change.  Maintaining this right to hunt-fish-trap in perpetuity would seemingly also require adaptive management strategies to ensure that changes to habitat ranges would be studied and that the state would act to ensure that such animals are protected in these new habitats so that hunters of future generations could exercise their hunting-fishing-trapping rights. 

Finally, it could be that even a state’s failure to address climate change in other capacities could be susceptible to a right to hunt-fish-trap challenge.  After all, failure to address climate change will affect those animals that hunters-fishers-trappers need for their sport through changes to habitat, etc. If the state does not act in ways that would mitigate climate change’s effects, they would necessarily be impacting future generation’s ability to hunt, fish, and trap.  

Of course, all of these arguments are highly speculative, and I’m guessing, far from the minds of those who put these rights to hunt-fish-trip in place.  But I don’t know.  Maybe not.  And maybe these thoughts were in the minds of the voters that overwhelmingly passed these provisions.  As we all know, the broad language of many constitutional provisions can open up interpretations not anticipated by those who pushed for the initial provision.  That may just be the case with right to hunt-fish-trap provisions.

Stephen R. Miller

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Great post Stephen. I could easily see arguing that these provisions fit right in with expansion (er I mean recognition) of the Public Trust Doctrine to wildlife. Another question is of course, what about the states that don't have provisions like this. Do we assume no right to hunt? Perhaps states that don't constitutionalize this language have broader ideas of rights to hunt, fish, etc.

Posted by: Jessie Owley | Jan 23, 2013 1:20:07 PM