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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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

KRC Testimony on House Bill 1  Posted: March 4, 2011

Before the Senate State and Local Government Committee
Testimony Concerning House Bill 1

Mr. Chairman, Members of the Committee:

I am here today to express my concerns regarding the current language of House Bill 1, and to ask that, if the proposed constitutional amendment is to be placed on the ballot, it be redrafted to avoid a number of unintended consequences that I believe the current language presents.

I understand that this is a national priority for the NRA, which according to their website views this as a Second Amendment related issue. But in a state where most of the lands available for hunting are privately owned, the creation of a constitutional right to hunt is unnecessary and ineffective since the landowner permission must till be obtained. For public lands, the General Assembly already controls when and where hunting, fishing, and other “harvesting” of wildlife can occur and an amendment is unnecessary unless we are to accept as a premise that the General Assembly must be restrained by constitutional amendment lest it arbitrarily deny the ability to hunt and fish on public lands. In the 33 years that I have appeared before you, that certainly has not been the case.

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.”

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 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 bought, paid for, and 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 at your direction 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 currently written.

I don’t believe that is the author’s and the sponsors’ intent, but by creating a “right,” you empower an individual to seek through the courts to exercise that “right” and invite litigation against the Commonwealth and local governments, who would lose the power to legislative in areas that might have an effect of limiting hunting or fishing.

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

That case involved a challenge to a local ordinance that allowed bow and arrows to be discharged within 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 involving the discharge of firearms 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.

By limiting the power of the General Assembly to regulate hunting to state 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 on discharge of firearms 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. I don’t think we want to create a constitutional right to use nontraditional methods, such as dynamite for fishing.

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 you do want to pass this amendment, I would suggest a few minor language and punctuation changes that would avoid these consequences and would not constrain your statutory power so severely, nor eliminate home rule.

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