April 6, 2010

If passed by Arizona Senate, HCR 2008 would let voters decide on state constitutional amendment to make hunting and fishing a right

The Arizona Game and Fish Commission supports House Concurrent Resolution 2008, a measure that would create a state constitutional right to hunt and fish.

HCR 2008 yesterday passed the Arizona Senate Committee on Natural Resources, Infrastructure and Public Debt by a 5-1 vote. It will next go to the Senate for consideration and, if passed, will go on the ballot in the fall election.

Robert Woodhouse, a member of the Arizona Game and Fish Commission, testified in favor of the bill at yesterday’s Senate committee hearing.

“The Arizona Game and Fish Commission stands in support of HCR 2008,” said Woodhouse. “We believe it is a needed amendment to our constitution.”

In response to questions from the committee, Commissioner Woodhouse added that the amendment would protect the right of citizens to lawfully hunt and fish and that it would retain the commission’s authority over wildlife management as granted by the legislature.

During his testimony, Woodhouse also thanked the resolution's sponsor, Rep. Jerry Weiers (R-Glendale), for his leadership on this issue, and thanked the National Rifle Association, one of the leading proponents, for its willingness to work collaboratively on the language.

The commission voted on Feb. 23 to support HCR 2008. HCR 2008 passed the Arizona House on March 24 by a 37-18 vote.

“Hunting and angling are long-standing and honorable traditions,” said Commissioner Jack Husted. “HCR 2008 recognizes the right to hunt and fish and will protect that right for all citizens for all time.”

To read a copy of the bill and a list of frequently asked questions, click here and scroll down the page.

The Game and Fish Commission is comprised of five members (serving staggered five-year terms) appointed by the Governor and confirmed by the Senate. No more than one commissioner may be from any one county. No more than three may be from the same political party.

The commission is the policy-setting board overseeing the Arizona Game and Fish Department. Since its inception in 1929, this organizational structure has served as a buffer for the best interests of science-driven wildlife conservation during eight decades of back-and-forth political change.

While I applaud the thought, this one is frought with legal and practical issues. It is way too broad to be serviceable. It is a lawyer's paradise. Examples:

"The citizens of this State have a right to hunt, fish and harvest wildlife lawfully." None of the other rights within the state come with seasons for the rights, nor do they come with fees in order to exercise the rights.

quote:

Section 5 Right of petition and of assembly
Section 6 Freedom of speech and press
Section 7 Oaths and affirmations
Section 8 Right to privacy
Section 9 Irrevocable grants of privileges, franchises or immunities
Section 10 Self-incrimination; double jeopardy
Section 11 Administration of justice

None of these come with licenses or fees. I need a license for PRIVILEDGES, like driving, not rights. I think they just screwed themselves out of a lot of revenue because some hit shot outfitter or landowner will file suit, especially in this day and age.

quote:

No law shall be enacted and no rule shall be adopted that unreasonably restricts hunting, fishing and harvesting wildlife or the use of traditional means and methods.

Again, I think the lawyers will love this. There is no definition of "reasonable" except when a jury gets involved, unfortunately. A license fee for a right is unreasonable.

I hope it fails until they get it nailed down better than two paragraphs.

The effort's very well intended, and I think it's worth a try. But it's no doubt prompted by fear of the rapidly changing demographics. And when it gets to the point where the only thing left allowing hunting and fishing is the written word, then the end's in sight.

Experience in this country has proven that constitutional guarantees in fact guarantee nothing.

The actual bill:

1 Be it resolved by the House of Representatives of the State of Arizona, the
2 Senate concurring:
3 1. Article II, Constitution of Arizona, is proposed to be amended by
4 adding section 36 as follows if approved by the voters and on proclamation of
5 the Governor:
6 36. Hunting, fishing and harvesting wildlife
7 SECTION 36. A. THE CITIZENS OF THIS STATE HAVE A RIGHT
8 TO HUNT, FISH AND HARVEST WILDLIFE LAWFULLY. WILDLIFE BELONGS
9 TO THIS STATE AND IS HELD IN TRUST FOR THE BENEFIT OF THE
10 CITIZENS OF THIS STATE.
11 B. EXCLUSIVE AUTHORITY TO ENACT LAWS TO REGULATE THE
12 MANNER, METHODS OR SEASONS FOR HUNTING, FISHING AND HARVESTING
13 WILDLIFE IS VESTED IN THE LEGISLATURE, WHICH MAY DELEGATE RULE
14 MAKING AUTHORITY TO A GAME AND FISH COMMISSION. NO LAW SHALL BE
15 ENACTED AND NO RULE SHALL BE ADOPTED THAT UNREASONABLY RESTRICTS
16 HUNTING, FISHING AND HARVESTING WILDLIFE OR THE USE OF
17 TRADITIONAL MEANS AND METHODS. LAWS AND RULES AUTHORIZED UNDER
18 THIS SECTION SHALL HAVE THE PURPOSE OF WILDLIFE CONSERVATION AND
19 MANAGEMENT AND PRESERVING THE FUTURE OF HUNTING AND FISHING.
20 C. LAWFUL PUBLIC HUNTING AND FISHING SHALL BE A PREFERRED
21 MEANS OF MANAGING AND CONTROLLING WILDLIFE.
22 D. THIS SECTION SHALL NOT BE CONSTRUED TO MODIFY ANY
23 PROVISION OF COMMON LAW OR STATUTES RELATING TO TRESPASS OR
24 PROPERTY RIGHTS.
25 2. The Secretary of State shall submit this proposition to the voters
26 at the next general election as provided by article XXI, Constitution of
27 Arizona.


Frequently Asked Questions and Answers About HCR 2008 - Constitutional Right to Hunt and Fish


What does HCR 2008 accomplish?

It recognizes hunting, fishing and harvesting of wildlife as constitutional rights. Specifically, it prohibits regulations that would ban the use of “traditional methods” such as bow hunting or the sustainable taking of “wildlife” such as deer, bear and doves. HCR 2008 protects the citizen’s hunting heritage from attacks initiated by well-funded anti-hunting activists who have assailed sportsmen throughout the country in recent years. In addition, it specifies that hunting, fishing and harvesting of wildlife shall be used as a preferred means of managing and controlling wildlife. This ensures that sportsmen will continue to be used as the state’s responsible game managers instead of the taxpayer funded sharpshooters and unproven, expensive wildlife contraception schemes employed in other jurisdictions.

What does HCR 2008 not do?

It does not affect or remove the legislature’s current ability to delegate the task of wildlife management and preservation to a fish and game commission of its choosing. It does not override the ability to regulate hunting for the purpose of conservation and preservation of wildlife. It explicitly does not modify any common law or statutes relating to trespass or property rights.

Shouldn’t hunting continue to be recognized as a privilege, instead of a right?

People have hunted since the dawn of civilization, long before the formation of government. Because of this, many Americans already view hunting as a right. Privileges, unlike rights, can be stripped from citizens with little or no cause. Sportsmen provide an essential public service by managing game populations but they are a minority of the state’s population. Without constitutional protections, minorities, and their way of life, are often overwhelmed by the will of the majority.

Why is a constitutional right to hunt, fish and trap needed in Arizona?

Some anti-hunting organizations have declared objectives to end all consumptive sporting practices. Through the initiative process, they have succeeded in enacting hunting bans in states considered to be sportsmen strongholds. For instance, five years ago in Michigan, a state with a million hunters, passed an initiative to ban the hunting of doves, the most commonly hunted game bird in America. It’s only a matter of time before these anti-hunting activists, using the state’s initiative process, set their sights on the sportsmen of Arizona. It is not prudent to wait until a crisis to pursue a constitutional amendment. By then, it will be too late.

How many other states recognize hunting and fishing as a right?

Ten states recognize hunting and fishing as a right. Vermont, with a provision dating back to 1777, has the longest recognized constitutional right. The other states are Alabama, Georgia, Louisiana, Minnesota, Montana, North Dakota, Oklahoma, Virginia and Wisconsin. None of the problems currently being predicted by opponents of HCR 2008 have come to fruition in any of these states. Arkansas, South Carolina, and Tennesse will have amendments on their 2010 General Election ballots. If these are successfully adopted by the voters, one quarter of the states will have these constitutional protections.

Will HCR 2008 place game management decisions in the hands of the courts, instead of the Commission, through the regular filing of lawsuits by disgruntled sportsmen?

The ten states that recognize hunting, fishing and trapping as constitutional rights have not experienced a problem with litigation. Arizona will not prove to be the exception to this long-standing rule. HCR 2008 specifies that the right is subject to regulations that further the interests of wildlife conservation and management.

Who will determine the meaning of the provisions of HCR 2008?

The Arizona Game and Fish Commission and its agents will be the first to interpret the meaning of the provisions as they enact and enforce regulations (if authority continues to be delegated by the Legislature). If a citizen chooses to challenge a decision made by the Commission, he could turn to the state courts for relief. The courts then interpret the meaning of the provisions but give great deference to the state’s wisdom and discretion. This is not unlike all other laws and constitutional provisions adopted in every state in the country. This is what the executive and judicial branches of government are intended to do. It is how our Republic works.

While it has not happened in any of the other states with Right to Hunt provisions, occasional litigation is possible (as it is already possible today in Arizona). The First and Fourth amendments to the U.S. Constitution have inspired tens of thousands of lawsuits but no one would consider them mistakes. As is the case with other individual rights, the benefit of securing the Right to Hunt for future generations is worth the potential costs.

Is it likely that anti-hunting activists file lawsuits using the provisions of HCR 2008 to stop hunting seasons set by the Commission?

No. As stated above, the courts will continue to give the Commission great deference as the state’s expert and designated wildlife managers. In order for the courts to issue an injunction stopping a hunting season, it must determine that not doing so will result in irreparable harm and that the plaintiffs are likely to prevail. By any measure, this would be an extreme stretch of reason and legal precedent.

Will HCR 2008 provide an “absolute” right and therefore lead to unregulated hunting?

As most citizens understand, no right is “absolute.” For example, Arizona’s right to arms provision specifies, “The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired...” There are innumerable restrictions placed on this unambiguous right by state and federal law. This is true even without the “regulations” caveat incorporated into HCR 2008. It is clear that HCR 2008 does not establish the first “absolute” right in state history and that hunting, under the plain language of the resolution, will be subject to regulations that “have the purpose of wildlife conservation and management.”

Does HCR 2008 inject politics into the game management practices of the state?

By the nature of the fact that Game and Fish Commission members are political appointees, politics are already part of the process. HCR 2008 actually limits the extent of political influence in the future by eliminating certain regulatory options, like a politically motivated ban on dove or bear hunting, that the Commission might have otherwise been required to consider because of future political pressures exerted by anti-hunting interests. HCR 2008 helps to ensure science, not prevailing political winds, will dictate wildlife management policy in the future.

Will a constitutional right to hunt affect a person’s private property rights or prohibit them from enforcing trespass laws?

No. The plain language of HCR 2008 specifies, “[t]his [amendment] shall not be constructed to modify any provision of common law or statutes relating to trespass or property rights.” No concerns related to private property rights have arisen in any of the other ten states.