The United States has long valued hunting and fishing as outdoor sports
central to our identify and culture. The practices are steeped in tradition
and have been a method for families and sporting enthusiasts to enjoy
our country’s natural wonders, put food on the table, and manage
wildlife. About half of American gun owners identity hunting as the primary
reason for owning a firearm. As governments implement restrictions to
combat the COVID-19 pandemic, whether states can legally shut down hunting
and fishing has become a relevant question.
Here in Colorado, Governor Polis’ Stay-at-Home order still allowed
for hunting and fishing as well as other outdoor activities but asked
that people limit travel as much as possible. In response to the spread
of misinformation about hunting in the state, Colorado Parks and Wildlife
Director Dan Prenzlow assured residents that “in a time where so
many things are uncertain and changeable, Colorado Parks and Wildlife
staff is working hard to ensure Coloradans maintain the ability to find
comfort in the outdoors and continue their outdoor activities to the fullest
extent possible.” Meanwhile, Washington Governor Jay Inslee’s
Stay Home, Stay Healthy order led to the closure of recreational fishing
statewide and postponement of hunting seasons during the worst weeks of
the outbreak, although some hunting and fishing reopened in early May.
States generally have the power to control the taking of wild animals found
within their jurisdiction. This authority comes from the broad police
powers granted to the states by the 10th Amendment. However, their authority is not without limitation.
States do not control every part of the land within their borders. Land
owned by the federal government is not bound by the laws of the state.
While states often have authority to manage federal lands, their power
only extends as far as Congress has allowed it to. Federal land including
national forests are open to the public for hunting and fishing. A state
government may have the statutory ability to set the hunting and fishing
rules for these areas, but the federal government is the final authority
over land that it owns. Similarly, land that belongs to Native Americans
through treaties with the federal government is under their control. States
have limited, if any, influence over the wildlife on Native American Treaty
lands. In these regards, states would be overstepping their boundaries
by shutting down hunting and fishing entirely and would not have the authority
to do so if federal or tribal governments were to oppose the decision.
Although regulation of hunting and fishing falls under the police powers
of the states, the scope of their power is still subject to limitations.
When testing whether a law is appropriate under state police powers, courts
will consider whether the restrictions of the law are rationally related
to the lawful interest. In a scenario where a state completely prohibits
hunting and fishing in response to COVID-19, there is a legitimate challenge
to this component of the test. By their nature, hunting and fishing are
often done in small groups in remote areas. The goals and methods of social
distancing are consistent with typical hunting and fishing practices.
Spending time in the great outdoors is one of the few activities people
can still enjoy while staying safe. To restrict these practices entirely
is beyond the police powers of the state.
It is also important to keep in mind that the driving purpose behind state
regulations on hunting and fishing is conservation. In fact, these outdoor
sports often help control wildlife populations and licensing fees help
with state conservation programs. It would be reasonable for states to
implement rules to ensure the safety of hunters and anglers, but to eliminate
access to fish and game entirely is a step too far. There is a reason
that twenty-two states have amended their constitutions to include the
right to fish and hunt. The need for oversight is well recognized, but
so is the American institutions of the taking and conservation of wildlife.
An attempt to ban hunting and fishing entirely would be a drastic step
that raises serious legal and ethical questions. The responsibility of
maintaining wildlife areas for the enjoyment of hunters and fishermen
falls on the states, but they should make an effort to restrain their
authority. The objective of state governments should be to create an environment
where people can safely take full advantage of the outdoors without doing
away with these traditions as a whole.
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