Hunting and fishing: rights or privileges?

Fossil Creek, north of Payson (Photo by Ryan Van Velzer/Arizona Capitol Times)

Fossil Creek has been a fishing draw for generations.

Of course, if you want to fish in the popular spot north of Payson, you’ll need to use barbless hooks and an artificial fly or lure. Using crayfish as bait is against the law, and if you catch a roundtail chub there, you have to release it unharmed, due to an effort to invigorate the population of that and five other native fish.

The rules and regulations about fishing in Fossil Creek, like regulations about hunting and fishing across the state, were put into place by the Arizona Game and Fish Department.

But opponents to Proposition 109 say the protections for native fish in Fossil Creek, along with all regulations on hunting and fishing in Arizona, will be jeopardized if the proposition passes in November.

Prop. 109 would amend Arizona’s Constitution, making hunting and fishing a constitutionally protected right and would give the state Legislature the exclusive authority to set laws about the taking of wildlife. Furthermore, it would prevent any law or rule from being enacted that “unreasonably restricts hunting, fishing and harvesting wildlife or the use of traditional means and methods.”

In short, sportsmen who believe wildlife regulations unreasonably hinder their ability to hunt or fish could mount a vigorous legal challenge because they would have the state Constitution on their side.

Sandy Bahr, director of the Sierra Club’s Grand Canyon Chapter, explained that her organization opposes the proposition primarily because it would shift power to the Legislature, and weakens the ability to regulate hunting or fishing because any regulations would have to pass a constitutionality test.

“This is a power grab by the Legislature,” Bahr said. “It makes (hunting and fishing) a right rather than a privilege. So it makes it so there’s a higher burden for anyone to implement a rule or regulation with regard to the taking of wildlife.”

Supporters of the proposition say Bahr and other opponents have it all wrong.

Rep. Jerry Weiers, a Glendale Republican who authored the proposition, said the claim that the Legislature is trying to take power over hunting and fishing regulations doesn’t hold water.

“That’s totally, blatantly, 100-percent false,” Weiers said. “The Legislature voted to move this thing along to give more power to the people of the state.”

The Legislature already delegates rule-making authority to the Game and Fish Department, and can override the department’s regulations according to state statute, he said. Enumerating that relationship in Arizona’s Constitution will only strengthen that relationship, making practically no changes to the way regulations are set, he said.

Weiers said Arizonans would have more power because Prop. 109 seeks to prevent the Legislature from restricting hunting or fishing. Only through another voter-approved constitutional amendment would restrictions be possible.

Arizona isn’t the only state considering such constitutional amendments, either. The National Rifle Association helped Weiers and supporters in three other states put a constitutional protection of hunting and fishing before voters this fall. Ten states already have such protections.

What Weiers and representatives from the NRA said motivated them was the possibility that large, well-funded activist groups that seek to restrict the ability to hunt or fish can, as law allows now, organize citizen initiatives to curtail hunting or fishing based not on conservation or management science.

Although Weiers couldn’t point to a specific threat, he said the threat is real and looming.

“It’s obvious to a lot of folks that there’s a push by some folks who think we shouldn’t hunt and just let nature do its thing,” Weiers said. “I don’t want that done through an emotional appeal. If someone watched ‘Bambi,’ I don’t think they should be able to (pass a ballot measure) that would change the way people have been doing things in Arizona.”

Bahr said she believes the claim that Prop. 109 protects Arizona from national activist groups coming to Arizona to push their agenda neglects the fact that the NRA, which donated $19,262 to the campaign for Prop. 109, is a national activist group.

“Hello pot, I’m kettle,” Bahr said. “They came in and pushed this agenda, and it’s not needed. It’s not like they had local people worried about this. They brought (their representative) in from D.C. to work on this.”

Adding to the state Constitution the right to hunt and fish opens up wildlife regulations to constitutional challenges by any resident who disagrees with them.

The proposed amendment also would require any law about or regulation of hunting or fishing to “have the purpose of wildlife conservation and management and preserving the future of hunting and fishing.”

Paul Bender, who teaches constitutional law at Arizona State University, said the passage of Prop. 109 would allow for constitutional challenges, though the broad language of the proposed amendment would leave a lot to the interpretation of the Arizona Supreme Court.

“What’s unreasonable?” Bender said. “I suppose a person could argue that a regulation is unreasonable. I suppose they would have a stronger argument if it’s one of those traditional methods. They would have a much stronger argument if there’s a regulation that’s clearly not a conservation-based regulation.”

Bender said the lack of definition to the language in the proposed amendment makes it nearly impossible to predict what challenges could come or what decisions could be made in such challenges.

Bahr said the ban on steel leg-hold traps is a perfect example of where a potential constitutional challenge could arise, as it’s a regulation having nothing to do with conservation, and could be defended as a traditional method of taking wildlife.

Suzanne Gilstrap, the lobbyist for Arizona Sportsmen for Wildlife, which backs Prop. 109, said she doesn’t support the ban on steel leg-traps, and considers them a traditional means of taking wildlife.

Former Arizona Game and Fish Commissioner Bob Hernbrode said that although he is an avid hunter, the possibility of a constitutional challenge is one of the reasons he opposes Prop. 109.

“Constitutional matters receive stricter scrutiny from the courts,” Hernbrode said. “What if a lawsuit gets tied up in court, and there’s an injunction that precludes hunting for two or three years? I believe those are real dangers.”

Hernbrode said he would prefer to leave the law about how the Game and Fish Department operates as it is: If someone disagrees with department’s regulations, they have the ability to bring an administrative challenge to them.

While Weiers said he believes the Prop. 109 will safeguard Arizona from national activists looking to eliminate hunting in Arizona, Hernbrode said he simply doesn’t share that fear.

“It’s an unwarranted paranoia,” Hernbrode said. “You can find a radical group that wants to do something about everything. I’m not as afraid of that.”

Alexa Fritts, a spokeswoman for the NRA, said she did not find any instances of constitutional challenges in any of the states that have already adopted similar protections.

“The 10 states that have hunting and fishing recognized as a constitutional right haven’t had any problems with litigation, and we don’t expect Arizona to have any either,” Fritts said.

Main Provisions of Prop. 109

• Citizens of Arizona have the right to hunt, fish and harvest wildlife lawfully.
• The wildlife of Arizona is held in trust for the benefit of Arizona residents.
• Exclusive authority to make rules and regulations on hunting, fishing or harvesting wildlife belongs to the Legislature, which can delegate rule-making to the Game and Fish Commission.
• No law shall unreasonably restrict hunting, fishing or harvesting of wildlife or the use of traditional means to do so.
• Any law or rule about hunting or fishing must be for the purpose of wildlife conservation and management and preserving the future of hunting and fishing.
• Hunting and fishing shall be the preferred method of managing and controlling wildlife.
• The constitutional protection of hunting and fishing shall not be construed to modify any existing laws relating to trespass or property rights.

States that already have a constitutional protection for hunting and fishing:

State/Year of Adoption
Alabama 1996
Georgia 2006
Louisiana       2004
Minnesota       1998
Montana 2004
North Dakota    2000
Oklahoma        2008
Vermont 1777
Virginia        2000
Wisconsin       2003

States where voters will choose whether to add hunting and fishing to their constitutions:

Arizona
Arkansas
South Carolina
Tennessee

Prop. 109 political campaigns:

NRA Ballot Issue Committee in Support of Prop. 109:
Money raised: $19,262
Money spent: $0
Major contributor: NRA

Arizonans Against the Power Grab — No on 109:
Money raised: $100
Money spent: $0
Major contributor: Stephanie Nichols-Young, attorney