Wednesday, February 12, 2014

Do County-Based Hunting Regulations Make Good Sense?

Hunters are a traditional lot.  It's impossible for a legislator to propose a change to hunting regulations in any state without having one group of hunters applaud it while another group opposes it.  Where things get interesting is when one group has more power at the state level, and the other (opposing) group has more power in local government.   The eerie spectre that rises up most times is that of "County resolutions," "County Opt In" or "County Opt Out" regulations, sponsored or forced by those with local political power - or worse - special interest lobbyists at the local level who have no vested interest in County-specific politics beyond their own funder.    Since nearly every wildlife law in existence is overseen by federal or state wildlife agencies with massive budgets and highly trained scientists, lawyers, and wildlife officers (game wardens), it does beg the question - should Counties get in the game?  Let's take a look at the key issues:

1.  Enforcement.  If the state issues a wildlife law and a county chooses to contradict that law (assuming that contradiction is constitutional and legally sufficient - and it very well might not be),  local power brokers need to understand that state game wardens, police, marine police, and park rangers will not and legally cannot enforce those county stipulations.   If your county has decided to ban hunting squirrels with .22LR rifles but the state allows it, the game warden won't and can't ticket hunters for the violation.

If your state allows Sunday hunting but a group of wealthy lobbyists in your County sees to it that a county law is passed banning hunting on Sunday, the only law enforcement officers headed out to your tree stand will be local police officers and sheriffs deputies, inbetween rounding up felons and cleaning up deadly car crash scenes.  Taxpayers can and will ask if local cops trespassing on their farms on Sunday looking for a solitary bowhunter is the "highest and best" use of those officers' time on the clock.  I cannot imagine that it is.  Also consider that if Sunday hunting is legal throughout the state, a judge is likely to throw out any cases for violation of that law in a single county, for fear of being overturned on appeal (virtually certain).

Also thrown out of court will be nearly every case originating on a large property that crosses County boundaries.  An issue worth considering in areas with 5,000 acre hunt clubs.

It's highly likely that diverting limited local police resources away from crime solving and toward bowhunters in a tree on their own farm will likely have election consequences. At a cost of roughly $100,000/year (salary+benefits+expenses), the County can hire one single game warden of its own, who will only be able to legally cite those in violation of County (not state or federal) laws.  The Board of Supervisors will merely need to raise county taxes to pay for it.  That might also have election consequences.

2.  Technical Expertise.  I'll speak freely here, as someone with a BS in Wildlife Management, an MA in Environmental Planning, and almost 20 years of experience working in the field with wildlife habitat, hunters, and landowners.   Even in counties that have an environmental planner on staff (a rarity in rural areas), there is almost no chance that those staff people have any significant background in the assessment, regulation, and/or management of wildlife herds.   There is no chance at all that those staff have experience in the establishment or regulation of wildlife laws, or the prosecution of wildlife law violations.  In urban and suburban counties, there may be up to one staff person per county who has assisted state employees in administering organized, managed hunts.   So, while it's cute to think that a County Board of Supervisors can pass broad laws about hunting in their county, they must recognize that upon investigation, those regulations will be found to be "arbitrary and capricious," for the simple reason that no qualified individual in the County will be able to defend why the lobbyist-created county law was written exactly the way it was.  No County employee will be able to tell voters, the media, or the judge, why a state law that 30-50 state biologists deem to be effective in all surrounding counties is a "violation of wildlife's day of rest" in their own county.

3.  The Rule Making Process.   We keep hearing that Boards of Supervisors in 15, or 22, or 25 counties in Virginia have signed "resolutions" drafted by the Virginia Hunting Dog Alliance (VaHDA) that ostensibly "ban Sunday hunting" in each of those counties.  But let's look at it further.  Actually, those resolutions specifically seek to "keep the current Sunday hunting limitations in place," which is critical because the wealthiest landowners in those counties already enjoy the legal right to hunt on Sunday - and certainly the VaHDA does not want to constrain those individuals from enjoying their Sunday hunting rights - which apparently are not in violation of "our current rural way of life" as the template resolution claims that bowhunting on one's own property will be.   So, already, these "resolutions" are full of legal holes that any law clerk could drive forty blue tick hounds through.  Add to this the fact that, perhaps under advisement from VaHDA, several (not all) Boards of Supervisors have met to approve these resolutions in private, without allowing public input or comment from their constituents on these "resolutions."   I'd bet that will hurt those "constitutional rights" and "private property rights" candidates, come next election.  Bad move, gentlemen. 

But let's look closer at what a "resolution" does.  Which is to say....nothing.  A resolution does not carry any legal weight, it is an opinion paper by the County's ruling body.   To pass a law counteracting an overriding state law would require the rulemaking process.  First, the County Board of Supervisors would have to "show cause" for a law.  That would require public input, which most certainly would be divided on current and future hunting regulations (I'd bet that in Virginia, citizens would immediately seek to open up new county regulations on deer hounds, rather than tackle about a VaHDA backfire!).

The County Attorney would then have to draft the law, and then sign his or her name to the bill, asserting its legal sufficiency.  Now, most accomplished attorneys would be unwilling to do this for a law to counteract a state law that, like Sunday hunting, passed four votes in both state houses at a 2:1 bipartisan vote.   That would be career suicide.

But let's say this County Attorney is ambitious and sends it on to the Board of Supervisors for their approval.  They might approve it, or might not, and again, the process would be open to abridging, say, to eliminate hound retrieval on Sunday and/or all liberal retrieve of hounds (something the majority of Virginia citizens support).  If the Board of Supervisors passes the bill, then the County Attorney (or Law Office) would interpret the bill (now a law) into legal code, like a County ordinance.   At this point, the "idea" of "bucking the state" gets much harder, because the ordinance is subject to legal examination every time someone violates it.   Any defendant could call a representative from the state wildlife agency, who would testify that in fact, the county law serves no purpose and is thus arbitrary and capricious.   As soon as the first case is dismissed on this basis, no prosecutor would continue to file charges under this particular law, rendering it (like the majority of legal code in our law books) as an "unenforceable mandate."

So in short, legally, this cannot work except for a very short time.

4. Politics.   In almost all cases, these efforts to further restrict hunters' rights and landowners' rights at the County level are led by staid conservatives who campaign on their record of advocating for private property rights, constitutional rights, and rural heritage.  Does anyone not see a conflict there?  Sure, a few less-than-bright bulbs in County leadership might think that violating the 1st Amendment of the United States Constitution specifically to stop me from harvesting food, within hunting season, on Sunday, on my own property on which I pay taxes, makes sense.  Such dim bulbs would find themselves answering tough questions about "private property takeovers" and "anti-hunter county regulations" during their re-election campaign for "personal rights" and "liberty".

5. Economics.  Again, the strongest opposition to new hunting opportunities passed by state government (new species like Elk, or adding Sundays to the season) has come from supposedly pro-business, pro-capitalism County Supervisors with possible ties to agricultural or hound hunting lobbyists.  Numerous studies have been conducted on expanding hunting opportunities - new opportunities create new hunters and numerous jobs and significant revenue to support new and existing hunters.  No one with an IQ above 70 would honestly contest the fact that adding opportunity, adds hunters, adds revenue, and so they contest it dishonestly by making vague quotes like, "Well, we're not sure about those studies in other states!"

Across the country (44 states and counting), County governments, Farm Bureau offices and Chambers of Commerce embrace hunters and hunting for the significant amount of business and tax revenue hunters bring with them.   Even liberal states like New York and Maryland have launched campaigns to attract out-of-state hunters and their disposable income.   However, these few County Supervisors see the increase of revenue to local businesses as "disruption to our rural lifestyle."   Come on, how can that be an honest statement, especially in states where liquor sales, strip clubs, 70mph bass boats, and all kinds of other activities are common in rural areas on Sundays.   Deep South states have liberalized hunting regulations across the board, and it's fair to say that churches in states like Georgia, Mississippi, Alabama and Florida are not suffering from lack of church attendance - or lack of hunting license sales (unlike Virginia, one of a very few states that continues to hemorrhage hunters annually - 50% in the last 30 years to be exact).

I can see the County welcome sign now:  "Welcome:  Philanderers with an eye for young strippers and $200 to burn, who will then drive drunk all over our roads on Sunday.  Not welcome:  Christian bow hunters with $1000 to burn and kids who want to learn to hunt. Our rural heritage does not include your family."  What a disaster.

In Summary.    Local wildlife regulations that intentionally defy state wildlife regulations are not likely to have a solid technical, conservation, legal, enforcement, or fiscal basis.  They are not likely to satisfy their original objectives (to keep hunters and tourists away...however nonsensical that idea is), and they are likely to suffer from unintentional consequences, such as those unanticipated by the lobbyists who put forth such "County resolutions" in front of County leaders in the dark of night, hoping for a signature before the citizens hear the story of what their local leaders have foisted upon them.   If that ain't American....what is?

Unlike firearms laws, which can and should change with population density, there is no basis for County-specific wildlife or hunting laws, nor a way to create them effectively, nor a way to enforce them efficiently and constitutionally.  Fish, wildlife, hunters, and anglers don't stay within county borders.  Neither do good policies which seek to effectively regulate those things.


Anonymous said...

I don't believe, once the bill becomes law, that localities would have the power to restrict hunting on Sunday, specifically, through ordinance? Code 15.2-1427 describes the power of resolution and ordinance, and since hunting is protected in Virginia's Constitution, and 29.1-521 specifically mentions Sunday, no ordinance against hunting just on Sunday should be adoptable?

Localities do have the authority to regulate weapons through general law, but fortunately, SB154/HB1237's language also uses language that directly authorizes the use of guns, firearms and other weapons, or Sundays.

I'm sure the vahda will do everything they can to try to twist this into a knot. But what the vahda needs to be very mindful of is the authority that localities, do have, to regulate when dogs have to be leashed or kenneled.

Once these resolutions gain enough attention, and residents of localities learn that their local government has direct authority to regulate "dogs at large", and "self-hunting dogs" I see hound hunters being burdened with restriction they never would have seen if the vahda had just not gotten involved.

imagine, Virginia's most powerful hound hunting lobby, all in one year, loses it's battle against Sunday hunting, and in another Sunday hunting battle, causes hound hunters to have to keep their hounds kenneled anytime that the hunter is not in the field with them?

Phillip said...

In CA, municipalities and counties can override the state game agency. This has resulted in many issues, ranging from rejection of state recommended doe hunting (ratios are out of whack and habitat is suffering) to bans on otherwise legal trapping, resulting in increased depredation of endangered shorebirds by coons, skunks, and foxes.

Unless each county has the experts and wildlife management decisions are based on science vs. emotional uproar from homeowners or special interest groups, it's a really bad idea to let them make those decisions.

Kirk Mantay said...

Anon - yes, in Virginia, any attempt to ride this into ordinance would alert the attention of the anti-hound crowd. The one thing that non-hunters in Virginia agree upon is they hate deer hounds. How many times these knuckleheads want to tempt that reality...hopefully not many more.

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