LEGAL BRIEFS 

By Ivan Schell, Esquire

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. 

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