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Shutting Down Hunting and Fishing is an Overreach of State Authority

By Wildlife Lawyer on June 5, 2020

The United States has long valued hunting and fishing as outdoor sports central to our identity 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 the 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.

Posted in: Fishing, Hunting