LEGAL BRIEFS
By Ivan Schell, Esquire
2019: 4th Quarter
NATIONAL NEWS
Federally Protected Species. In the case of Wild Earth Guardians v. Department of Justice in the 9th Circuit, which includes
Arizona, Wild Earth Guardians and the New Mexico Wilderness Alliance sued the U.S. Department of Justice because
they chose not to pursue criminal prosecutions of individuals who accidentally shoot federally protected species. Although
the District Court ruled that the policy violated the Endangered Species Act, the 9th Circuit Court of Appeals has now concluded
that the plaintiffs, Wild Earth Guardians and New Mexico Wilderness Alliance, did not have standing to bring the suit because
they were not affected parties, and accordingly vacated the District Court’s opinion.
Elephant Importation. In 2014, the Safari Club challenged the U.S. Fish & Wildlife Service’s (“USFWS”) suspension
of the importation of sport-hunted elephants from Zimbabwe and Tanzania (this case is called SCI v. Zinke). The case has
been to the U.S. Court of Appeals where the Court ruled that the USFWS should have conducted rule-making on its enhanced
findings for limitation of importation of elephants harvested in Zimbabwe during the years of 2014 and 2015. In response,
the USFWS withdrew its finding regarding the importation of elephants and in its place instituted a permit application process
for each individual importation. That process is now ongoing and the lawsuit against USFWS by SCI has ended.
Wolves. SCI, NRA and other organizations intervened in the case of H.S.U.S. v. Zinke which challenged the legality of
the USFWS’s decision to de-list the Western Great Lakes population of wolves. The District Court vacated the de-listing
and placed the wolves back on the endangered species list. The decision was appealed to the District of Columbia Court of
Appeals which affirmed the lower Court’s re-listing of the wolves on the ESA list. However, in March of 2019, USFWS
posted a proposed rule to de-list grey wolves nationwide which, of course, is favorable to those who believe that hunting is
a viable conservation tool to use in managing wolves. Currently there is a public comment period ongoing during which USFWS
will decide whether to finalize the de-listing rule. SCI anticipates that litigation will follow if the de-listing is affirmed
by the Department.
KENTUCKY NEWS
Orange Cards. It is now common knowledge that the Department of Fish & Wildlife has eliminated the field participation
component of the process to obtain a Kentucky hunter education card. Specifically, a person can now qualify for such
a card without ever firing a gun by taking online education courses and passing an online test which requires that at least
80% of the questions be correctly answered. A person who is at least 9 years old may take the Department-sanctioned exam.
Deer Disposal Regulations. The Department has also approved its regulations, applying to taxidermists, requiring that
deer carcasses that are disposed of by the taxidermist be buried in a lined (“contained”) landfill at least four feet deep or with
two inches of quick lime and at least three feet of earth.
Bear Zones. For the second time in two years the Kentucky Department has totally rewritten the rules for bear hunting
in Eastern Kentucky. They have eliminated bear Zones #1 and #2 and have replaced them with bear Zone #3, consisting of
Adair, Bath, Boyd, Carter, Casey, Clark, Cumberland, Elliott, Estill, Fleming, Garrard, Greenup, Lee, Lewis, Lincoln, Madison,
Menifee, Montgomery, Morgan, Powell, Rowan and Wolfe Counties, plus a Bell Zone which means Bell County, East
Zone #2, which includes Breathitt, Clay, Floyd, Johnson, Knott, Knox, Lawrence, Leslie, Magoffin, Martin, Owsley, Perry
and Pike Counties, as well as a Harlan Zone, being Harlan County, a Letcher Zone, meaning Letcher County, a McCreary
Zone, meaning McCreary County, and West Zone #2, which means Clinton, Jackson, Laurel, Pulaski, Rockcastle, Russell,
Wayne and Whitley Counties.
Bear Harvest Limits. The biggest change relating to all of these bear zones is that there are now quotas in various zones
which typically involve a limit of two female bears but there is now no limit with respect to male bears. What this means,
practically speaking, is that during a bear season for archery or modern gun or a quota hunt with dogs, the season will close
for that particular zone after two female bears have been killed, but any number of male bears could be killed prior to the
reaching of the two female bear limit. Given the fact that most female bears are in hibernation during the modern gun season,
this arguably would mean that there is virtually no limit on the number of bears that can be taken during the modern gun
season which runs for seven consecutive days beginning on the second Saturday in December. One bizarre new requirement
is that the regulations now spell out what breeds of dogs must be used to chase a bear during the chase season. They include
Airedale, American black and tan coon hound, black mouth cur, blue tick coon hound, English coon hound, leopard cur, majestic
tree hound, Mathis mountain cur, plot hound, red bone coon hound or tree walker coon hound.
Waterfowl Blinds. Another new hunting regulation relates to waterfowl hunting on public lands. Hunters will now have
to take a measuring tape into their duck blinds because a person hunting waterfowl shall “hunt in close proximity to other
hunt party members so that each member of the party is within 25 feet of another party member and no two party members
are more than 100 feet apart.”
Guide Helpers. For those who are interested in being a “guide helper” to a commercial guide licensed under the State
of Kentucky Fish & Wildlife regulations, you have now been put out of business. 301 KAR 2:030 now effectively prohibits
the use of a hunting guide helper who was previously allowed to act on behalf of a commercial guide license holder to assist
in the taking of game animals. Fishing guides can still use guide helpers, but hunting guides cannot. In short, the hunting
guide and the client will now have to haul out a deceased elk without any assistance.
Special Elk Permits. The KDFWR commission extensively discussed but took no action to change the method of allocating
501(c)(3) elk tags among 501(c)(3) charity applicants, at its September 13, 2019 meeting. Accordingly, as reported in
the prior quarter Legal Briefs, the Kentuckiana
