April 2008

Arizona Game &Fish Commission Concerned About Proposed Legislation

It Could Impede Wildlife Management, Bring Lawsuits

PHOENIX — The Arizona Game and Fish Commission has expressed concern to House Concurrent Resolution 2037, a proposed amendment that would create a new constitutional right to hunt and fish in Arizona.

The Game and Fish Commission voted on Feb. 21 to oppose the bill as written, after a legal review by the Attorney General’s office advised that elevating hunting and fishing to a constitutional right could potentially hurt the state’s ability to enforce wildlife laws or take wildlife management actions, and could open the door to lawsuits from individuals who feel their rights to hunt and fish have been adversely affected.

 “We understand the desire of the bill’s supporters to protect the ability of people to hunt and fish in Arizona into the future,” said Commission Chairman William McLean. “While the concept sounds appealing on the surface, the language of this bill as currently written could contain many pitfalls for wildlife management and law enforcement.”

The commission and the bill’s supporters worked extensively over the past week in an attempt to reach a compromise on the bill’s wording. But in a public commission meeting on Monday, the sides could not come to an agreement.

 “Both sides made a diligent, good-faith effort to try to arrive at language that would satisfy the bill’s supporters and alleviate our concerns, but in the end, we couldn’t arrive at mutually acceptable language,” said McLean.

Under current Arizona law, hunting and fishing are considered privileges, not constitutional rights. Making them constitutional rights could subject Game and Fish laws and regulations to a more stringent legal standard and increase disputes over whether those laws and regulations overly restrict someone’s right to fish and hunt.

As an example, certain laws that regulate hunting and fishing, as well as the commission’s decisions to revoke a person’s hunting and fishing license privileges, would likely be subject to a strict scrutiny standard because they would interfere with a person’s constitutional right to hunt and fish.

Yet another example, the commission is likely to face more legal challenges to its decisions on matters such as issuing a certain number of big game tags, establishing bag limits, and closing or limiting access to certain areas to protect wildlife habitat or benefit protected species, because these actions might interfere with the constitutional right to hunt and fish.

“In addition to the high expense of defending the lawsuits, the State could potentially face large damage awards, injunctions blocking the enforcement of hunt orders, challenges to road or land closures protecting wildlife habitat, court decisions declaring state wildlife laws unconstitutional, reversal of criminal convictions and revocation orders on constitutional grounds, and above all, the diversion of vital agency resources to defend the litigation instead of managing wildlife,” said McLean.

The bill passed through the House Committee on Natural Resources and Public Safety yesterday by a 6-3 vote (and one committee member voting as present).  If ultimately approved by the Legislature, HCR 2037 would go to voters as a ballot referendum this fall.