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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Expresses Concerns Regarding House Bill 1 Creating a "Right" To Hunt, Fish and Harvest Wildlife  Posted: February 8, 2011

February 7, 2011

Hon. Leslie Combs
Kentucky General Assembly
Frankfort, Kentucky 40601
By email

Hon. Greg Stumbo
Kentucky House of Representatives
Frankfort, Kentucky 40601
By email

Dear Representative Combs and Speaker Stumbo:

I’m writing to suggest a different approach to a constitutional amendment on wildlife hunting and fishing that I believe will avoid several problematic and unintended consequences of the current language.

HB 1 proposes a constitutional amendment establishing a “right to hunt, fish, and harvest wildlife, including the use of traditional methods” subject “only to statutes enacted by the Legislature and administrative regulations adopted by the designated state agency to promote wildlife conservation and management and to preserve the future of hunting and fishing.” The amendment would further establish that “public hunting and fishing shall be a preferred means of managing and controlling wildlife.” Finally, the amendment contains a savings clause that “This section shall not be construed to modify any provision of law relating to trespass or property rights.”

My first concern is that by recognizing a “right to hunt, fish, and harvest wildlife” subject only to statutes that “promote wildlife conservation and management,” the amendment would empower a person to use the courts in order to attempt to gain access to public lands for hunting or fishing that are currently restricted by the General Assembly, since the laws establishing parks, wilderness areas, and nature preserves do not necessarily have as their sole or primary goal, the promotion of “wildlife conservation and management,” and because the regulations adopted by the agencies responsible for those public areas would not have been adopted by “the designated state agency to promote wildlife conservation and management and to preserve the future of hunting and fishing.”

As you know from my work during the last session to negotiate a resolution among the state Department of Fish and Wildlife, Kentucky Nature Preserves Commission, and the horse enthusiasts that would maintain wildlife management and nature preserve areas for their primary purposes while allowing increased equine access, I support assuring that those areas dedicated to sport and recreational hunting are not encroached upon. By the same token, areas that the General Assembly has set aside for ecological, historical and cultural purposes such as wild and scenic rivers, wilderness areas, state resorts and historical parks and nature preserves, are managed to protect other values and may in so doing restrict or limit the taking of wildlife. This amendment could be used to override those protections, as written.

I don’t believe that is your intent, but by creating a “right,” you empower an individual to seek through the courts to exercise that “right” and invite litigation against the state.

The second concern is that the amendment upsets a balance that now exists between state and local governments regarding the ability to hunt within municipalities. The case of Sheffield v. City of Fort Thomas, 620 F.3d 596 (6th Cir. 2010), which I have attached, reflects a potential unintended consequence of the amendment.

The case involved a challenge to a local ordinance that allowed bow and arrow hunting in the City of Fort Thomas, the purpose of which was to allow hunting because of a problem with the deer population. The Court recognized that state regulation defined the deer season and divided the state into zones, but allowed municipalities to regulate whether hunting would be permitted within city limits as a matter of public safety. In rejecting the argument that Fort Thomas couldn’t allow bow and arrow deer hunting, the Court noted that local enactments that do not conflict with state law or regulation are not necessarily preempted. I’ve attached the case for your reference.

By limiting the power of the General Assembly to regulate hunting to statutes that “promote wildlife conservation and management,” and in so doing, eliminating concurrent local regulation under home rule through the constitutional amendment, it could be argued that restrictions intended to protect public safety within cities and outside them, are beyond the scope of the local government and even the legislature’s authority since those restrictions don’t promote wildlife conservation and management, but are instead directed at keeping people from inadvertently hurting other people. This concern is underscored by the savings clause, which preserves only laws relating to trespass and property rights, but not public health and safety.

A third concern is that by including the phrase “including the use of traditional methods,” a court construing the amendment would read the clause to mean that the right to hunt, fish and harvest wildlife includes, but is not limited to, traditional methods.

Finally, I’m not certain that I fully understand the perceived threat that has given rise to the measure. The General Assembly already has the authority to limit the extent of involvement of local governments in the field of regulation of hunting, fishing and wildlife management, and as the Sheffield case reflects, it works well.

If the concern is that future legislatures might seek to restrict hunting and fishing rights (a prospect that I have not seen in over three decades), then perhaps the better way to approach a constitutional amendment would be to codify in the constitution an adaptation of the current purposes of KRS Chapter 150, to wit, an amendment to read:

"The General Assembly has an obligation to the citizens of the Commonwealth to enact such measures as will protect and conserve the wildlife of this Commonwealth so as to: insure a permanent and continued supply of the wildlife resources of this state for the
purpose of furnishing sport and recreation (including hunting, fishing, and other harvesting of wildlife) for the present and for the future residents of this state; to promote the general welfare of the Commonwealth; to provide for the prudent taking and disposition of wildlife within reasonable limits, based upon the adequacy of the supply thereof; to protect the food supply of this state, and to insure the continuation of an important part of the commerce of this state which depends upon the existence of its wildlife resources."

This would avoid the unintended consequences, and would assure that future legislatures do not act unreasonably to restrict hunting, fishing and other forms of wildlife-based sport and recreation.

Please let me know if you have any questions.

Cordially,

Tom FitzGerald
Director

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