LEGAL BRIEFS 

By Ivan Schell, Esquire

2022: 4th Quarter 

NATIONAL NEWS 

Refuge Hunting: In the Spring issue of the Newsletter, I discussed the case brought by the Center for Biodiversity against USFWS to reverse the Trump administration’s opening of 2.3million acres of land across 147 federally managed wildlife refuges opened to hunting and fishing. You may recall that the CBD attack was based on the use of lead in ammunition and fishing tackle. Now the USFWS has achieved a proposed settlement with CBD to ban the use of lead and to pay the CBD’s legal costs. However, the lands appear to still be open to hunting under new regulations banning lead. SCI has opposed this settlement because it asserts that banning the use of lead on public lands will close down access to new hunters and youth hunters, who depend on widely available lead-based ammunition in many cases. According to SCI, a decline in hunter participation would result in a decline in conservation funding generated by the sale of hunting, fishing and shooting gear, damaging state conservation and wildlife management programs. Paying for the CBD legal fees is an additional abuse of the system. 

California AB 2571. California has enacted a law which prohibits marketing or advertising firearms to minors. Because of the broad language the law threatens youth firearms training, education and shooting participation. The SCI Orange County Chapter formerly held a youth quail hunt. Because of the new law this event and many others like it have been cancelled because vendors and sponsors are concerned that they will be hit with $25,000 fines per impression, occurrence or prohibited publication. SCI has joined the Sportsmen’s Alliance, SoCal Top Guns and the Congressional Sportsmen’s Foundation in suing California to oppose this legislation. If this kind of legislative over-reaction to mass shootings is allowed to stand then the movement could eventually reach many other blue states and significantly impair the efforts of SCI to promote youth hunting and shooting activities. 

Bruen: The Second Amendment legislative and litigation battles referenced in the last Legal Briefs Newsletter article are now in full swing. On 10/21 Judge Sinatra of the Western District of New York case in Hardaway et al vs Nigrelli et al, determined that the recent New York Legislation banning the carrying of guns in churches was unconstitutional and voided that part of the law. On 10/22, Prime Minister Trudeau of Canada banned the sale or transfer of all handguns. On 10/21 Judge George Wu denied an injunction against the California law SB 1621 which prohibits the manufacture and sale of ghost guns. The Judge argued that Bruen and the Second Amendment do not address the personal manufacture of weapons, notwithstanding the fact that all guns in the late 1700s and early 1800s were historically manufactured by individuals in small shops without serial numbers. On 10/26 New Jersey banned all guns and other instruments capable of causing harm (knives etc.) from being carried in public H4769/S3214. And finally on 10/26 the Democrats on the House Judiciary Committee reinstituted efforts to ban assault weapons. The Senate will not likely take up any such legislation prior to the midterms but if the Democrats prevail in the midterms, the effort will likely be renewed. 

KENTUCKY NEWS 

Bear Hunting. Bear hunting regulations will likely change based on the stabilization of the bear population in Kentucky with population growth measured at 10% annually. If the proposed regulations are enacted the quota system would be eliminated in favor of set season dates and bag limits. Accordingly, it is important to check the department website for changes before going into the field this fall to hunt bear. See: www.fw.ky.gov 

 

2022: 3rd Quarter

 

NATIONAL NEWS 

June 23, 2022, the Supreme Court of the United States (SCOTUS) delivered a 6-3 bombshell decision invalidating New York’s concealed carry license statute. (New York State Rifle & Pistol Association Inc., v. Bruen, Superintendent of New York State Police, .et al) In this case, the plaintiffs challenged the New York statutory requirement that a citizen must have a proper cause to receive a concealed carry license for a handgun. The challenge was based on both the Second and Fourteenth Amendments to the US Constitution. The application of the New York standard being challenged resulted in very few issuances of licenses to civilians because citizens were required to demonstrate a “unique need for self-defense.” The Court found that the proper cause requirement violates the Fourteenth Amendment, which requires that all citizens receive equal protection under the law. In coming to this conclusion, the Court struck down the two-step approach being applied by Courts in evaluating gun control statutes. Step one required an historical analysis of the statute, and the second step required a means-end scrutiny. The Court concluded that the second step was one step too many, because the Heller case specifically rejected any interest-balancing inquiry. The Second Amendment concluded SCOTUS is the very product of an interest balancing by the people and it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense. (See Heller). 

The Court did give deference to the designation of “sensitive places” such as schools and government buildings as locations to restrict concealed carry. However, the Court noted that New York’s attempt to declare the island of Manhattan a sensitive place simply because it is crowded and generally protected by the New York City Police Department lacks merit. Nothing in the Second Amendment draws a home/public distinction with respect to the right to possess and carry weapons in case of confrontation because confrontation can surely take place outside the home. The handgun is the quintessential self-defense weapon. 

Response to the decision has been rapid and intense on both liberal and conservative sides. Liberal states including New York, Delaware, New Jersey, California and Oregon have initiated legislative responses. In New York, the statute recently signed by the Governor prohibits concealed carry on private property and businesses unless those owners specifically give permission to carry. The law adds background checks for ammunition and prohibits ownership of body armor by civilians. So called sensitive locations have been expanded to include bars, restaurants, subways and mass transit. People with a history of bad behavior are prevented from qualifying. 

California has enacted a law giving citizens the right to enforce its law against ghost guns in the mold of the Texas law regarding abortion enforcement. Oregon has put Initiative 17 on the ballot to limit the Second Amendment and require registration of gun owners, ban magazines holding over 10 rounds and impose an indefinite delay on approval of firearms purchases. In Congress, the House Judiciary Committee is marking up an assault weapons ban. 

Opposing these efforts are suits being initiated daily by conservative organizations. One suit already in progress was Miller v. Bonita (CA Attorney General). That case challenged the California assault weapons ban and the plaintiffs are now importing the Bruen decision to assist in the effort to overturn the law. In Congress, a bill has been introduced to repeal the National Firearms Act (which controls suppressers, machine guns etc.) The wave of Bruen based litigation has clearly begun and there is no ascertainable end in sight! (See also “State Gun Laws Contested in Courts,” WSJ 7/25/22.)

 

2022: 2nd Quarter

 

REFUGE OPENINGS REVISITED. During the Trump administration with approval from both sides of the aisle, 2.3 million acres of land across 147 federally managed wildlife refuges were opened to hunting and fishing. Many conservation groups including SCI celebrated together this enhanced access for sportsmen and women. The Biden administration through its Secretary of the Interior, Native American Deb Haaland, piggybacked onto this accomplishment claiming that it was the largest ever expansion of fishing and hunting rights on US Fish and Wildlife Managed Lands and Waters. 

In late 2021, the Center for Biodiversity (CBD) brought suit against the USFWS to reverse this action and vilified the Trump administration while ignoring the Biden administration's participation in this process. Camila Cossio, a staff attorney for the CBD claims that their suit will ensure our nation's wildlife refuges actually provide refuge to endangered wildlife. In response the US Fish and Wildlife Service stated on its website that: "The National wildlife refuges exist primarily to safeguard wildlife populations through habitat preservation. The word 'refuge' includes the idea of providing a haven of safety for wildlife and as such hunting might seem an inconsistent use of the National Wildlife Refuge System. However, habitat that normally supports healthy wildlife populations produces harvestable surpluses that are a renewable resource." Interestingly President Theodore Roosevelt, a dedicated hunter, established the Wildlife Refuge System in 1903. Hunters have been involved in every single refuge establishment since then because the funds generated by hunters in the form of excise taxes and duck stamp revenues have funded the acquisition of each of the refuges. 

The primary line of attack by the CBD is based on the risks associated with lead ammunition and tackle which sportsmen appropriately call a red herring. Lead has been banned for waterfowl hunting for many years and state laws regulate how much lead that hunters and fishermen can use. RMEF, the Sportsmen's Alliance and SCI have filed to intervene in the suit on the side of USFWS. In February 2022, the Biden administration and the CBD jointly filed to ask for a delay in the court proceedings, which could indicate that the support of the Biden administration for the opening of these refuges is being reconsidered. In any event, we will keep our eyes on the situation and report in these pages as the suit continues. 

WARRANTLESS SEARCHES BY FEDERAL AND STATE WILDLIFE AUTHORITIES. An interesting series of cases is beginning to play out across the US relating to the seemingly unfettered access that federal and state game wardens have to private property. At issue are state constitutions which prohibit unreasonable searches without a warrant, which warrants are not supposed to issue without citing probable cause. Notwithstanding these-state based constitutional rights, Supreme Courts in the states of Virginia, Pennsylvania, Ohio and Tennessee have taken the position that hunting property is not protected property within the meaning of the law. Instead, these states adhere to the "Open Fields" doctrine which allows wildlife officials to enter these lands for searches and other enforcement action without a warrant. This follows the SCOTUS view that the Fourth Amendment protection against unreasonable searches and seizures only applies to an individual's immediate dwelling and curtilage, not the surrounding land. Curtilage is an arcane term loosely translated as the area directly around a home (i.e. the yard). 

Other states like Vermont, Mississippi, Montana, Oregon, Washington and New York have rejected the Open Fields doctrine for state wildlife officials, finding an owner's private land is protected from warrantless searches. So far, I have not found cases in Indiana or Kentucky on point, but will let you know on which side of Open Field they fall when a case arises and is adjudicated. 

 

2022: 1st Quarter

When I opened the most recent issue of Safari Times, I was struck by the report on the recent and continuing efforts of the English Parliament to ban the importation and possession of legally taken African hunting trophies. This of course is the predictable progression of the British attack on hunting epitomized by the earlier ban on fox hunting on the British island. This progression focused my attention on the American experience and creeping attack on trophy hunting in the US. 

In recent years, several Eastern US states and the state of California have initiated these efforts here. In 2016 New Jersey became the first state to pass legislation to ban importation and possession of the Big Five species by residents of New Jersey. The Big Five is understood to include the African elephant, Cape buffalo, African lion, rhinoceros (black and white) and the African leopard (see SB 977 and SB 978). Conservation organizations successfully brought suit under the Endangered Species Act seeking an injunction against enforcement. 

Likewise, Connecticut (SB 227) and New York (SB 4686) introduced similar legislation in 2016, but these bills failed to advance. California’s legislature passed SB 1487 along similar lines, but the Governor vetoed the bill on the premise that it probably conflicted with federal legislation (Section 6(f) of the Endangered Species Act). This Act of course outlines a legal path for permitting and importation of African species. 

In 2020 Connecticut (HB 5104) and New York (SB 4325) took another swing at the ball. Because of the opposition of 18 in‐state and national conservation organizations and businesses, the legislation failed to pass. However, in 2021, Connecticut expanded the prohibition to the “Big Six” (adding giraffes) (SB 925) which was passed into law, but not before the legislation was amended to exempt possession of trophies expressly authorized by any federal law or permit. This was a very close call. 

The primary avenue of attacking these legislative efforts continues to be through the application of the Endangered Species Act. In June of 2020, the US Court of Appeals for the DC Circuit rejected a challenge by animal rights interests to the US Fish and Wildlife Service’s removal of blanket enhancement and non‐detriment findings, allowing the importation of Big Five trophies. 

As determined by scientific research groups, hunting provides economic incentives and revenue critical to conserving African wildlife and large expanses of habitat while discouraging poaching and illegal wildlife trafficking. Hunters from the US represent more than 70% of the global market for hunting trophies. This generates $426 million of annual revenues and supports 53,400 jobs. 

The reality that we hunters are dealing with is that anti‐hunters could care less about the economics and species and habitat enhancement which are derived from legal hunting. The subject is much like gun control generally. There is no likelihood of achieving a positive result through the application of rational analysis. The bottom line is that hunters must remain vigilant and politically active at all levels on a going forward basis. Anti‐hunting groups like PETA and HSUS have already disrupted and in some cases achieved the banning of the importation and hunting of all the bear species (polar, brown and black), wolves, mountain lions and even coyotes. Organizations like SCI, the NRA and the Conservation Force are force multipliers for hunters and financial support of and participation in these 

organization is a must for all hunters interested in being able to pursue their passion into the future.