Everytime there is an action there WILL be a reaction.
http://www.missoulian.com/display/inn_features/outdoors/od01.txt
Deal with the devil
By DARYL GADBOW of the Missoulian
Organization seeking ways to preserve resident hunting rights, while handling demand for commercial out-of-state access
"We cut a deal with the devil," says Jim Posewitz of Helena, executive director of the hunting rights and ethics organization Orion: The Hunter's Institute, and author of "Inherit the Hunt" and "Beyond Fair Chase" - the bibles of hunting ethics in Montana.
The devil, says Posewitz, is commercialization of wildlife and hunting.
And the deal is the outfitter-sponsored "set-aside" big-game hunting licenses that Montana sells to out-of-state hunters through outfitters at a variable, market-based price. The revenue from sales of the outfitter-sponsored nonresident deer and elk combination licenses - nearly $5 million was projected in 2002 - is the bulk of the money used since 1996 to fund the state's extremely popular Block Management Program.
The Block Management Program pays private landowners to allow free public access for hunting.
The question facing Montana now, according to Posewitz, is: Has the time come to pay the devil his due?
"It's probably the most important question of our times," he says. "It's hugely important that we respond appropriately."
Speaking at a Missoula meeting of the Montana Wildlife Federation last week, Posewitz said that organization of hunters and anglers is concerned about "a litany of threats" of commercialization and privatization currently facing Montana's tradition of public hunting and wildlife management.
Some of the concern arises from a recent decision by the 9th U.S. Circuit Court of Appeals that struck down Arizona's limits on big-game licenses to out-of-state hunters as an act of "overt discrimination." The San Francisco-based court added that such discrimination was an unconstitutional restriction on interstate commerce for hunters wanting to sell antlers and other game animal parts.
Montana is one of at least 23 states other than Arizona that impose limits on the number of nonresident hunting licenses. And Montana is one of 22 states that are asking the U.S. Supreme Court to overturn its ruling against Arizona.
The 9th Circuit ruling "wouldn't necessarily apply to Montana immediately," said Bob Lane, chief legal counsel for Montana Fish, Wildlife and Parks, "because we have a Supreme Court decision from 1978 that found our limit on the number of elk hunters and the higher price (for out-of-state licenses) was constitutionally valid."
However, Posewitz points out, that 1978 Supreme Court decision was based on the "equal rights" provisions of the U.S. Constitution, not on the interstate commerce section.
One hundred years ago, Posewitz says, Montana, along with the rest of the country, was nearly devoid of wildlife.
"We had stripped the country clean," he says.
Led by President Teddy Roosevelt, says Posewitz, and with the strong backing of the nation's hunters and anglers, a conservation ethic was born that brought wildlife back to the abundance we see today.
The somewhat revolutionary idea that wildlife is a public resource was a key tenet of that successful conservation movement, he adds.
In the 1978 Supreme Court ruling upholding Montana's authority to discriminate against nonresident hunters, the state prevailed in its argument that Montana has an abundant wildlife resource because its residents have made sacrifices to protect the habitat on which the wildlife depends.
Important points in the court's 1978 decision, according to Posewitz, were that the state owns the wild animals within its borders and holds them in trust for its citizens; the state can limit hunting to protect its wildlife resources; there is no fundamental right for all people to hunt for sport; and that elk are not and never will be hunted commercially.
A retired FWP wildlife biologist, Posewitz argued within the department in 1993 against the proposal to have market-based pricing for out-of-state big-game hunting licenses because he believed it could "undermine the court's ruling."
"Outfitter set-aside licenses clearly is commerce," says Posewitz. "Now the 9th Circuit ruling jeopardizes our resident hunting rights. My argument may not be that simple. But it's a dangerous, dangerous thing to be doing."
Like any deal offered by the devil, the attractions are great, he adds. In this case, the reward is more than 8 million acres of private land opened to public hunting access in 2002 through FWP's Block Management Program.
"Yes," says Posewitz, "I thought it was attractive then (in 1995) and I think it is now. Now the most important thing we can do to preserve our resident hunting rights is to purge the commerce from our hunting that's come in the last 20 years."
One unforeseen consequence of the outfitter set-aside licenses has been an increase of outfitter leases of private land for exclusive hunting rights of their clients, taking lands out of the Block Management Program, and denying public access to publicly owned wildlife.
Those leasing practices threaten to make hunting a sport only available to the wealthy and privileged, says David Stalling of Missoula, a Montana Wildlife Federation member who is trying to reactivate a Missoula chapter of the organization.
The MWA is introducing legislation this session in the Montana Legislature that would require nonresident hunters who purchase the outfitter-sponsored set-aside licenses to hunt on public lands, according to Craig Sharpe, executive director of the federation.
The legislation, Sharpe says, "might inhibit private leasing by taking the outfitter out of the equation."
Some sportsmen, including some elements of the MWA, favored repealing the nonresident outfitter-sponsored set-aside licenses altogether, says Stalling. So the proposed legislation is a compromise, he says.
The legislation that created the Block Management Program and the variable priced nonresident outfitter-sponsored set-aside licenses will sunset in 2006, according to Allan Charles, director of FWP's Landowner/Sportsman Relations. The 2005 Legislature will review the programs and decide whether to continue them.
"Jim's (Posewitz's) point is well taken," says Charles. "But you have to go back to 1995, with all the competing interests struggling to work together. Prior to this there was no free-market. Outfitters had to compete based on the license drawings. It was a crap shoot. There was no guarantee they'd have clients. So outfitters often would have to tie up a maximum amount of land in leases in case all their clients were drawn for permits. So there was a negative impact on public access.
"I think we in the department, when we try to craft an access program, we find one-size-fits-all doesn't work. Some landowners and some outfitters want to allow some limited outfitter hunting. I think there are some win-win situations out there. I don't think we've explored all the options."
In Montana's appeal of the 9th Circuit decision, Brian Morris, Montana's state solicitor, said the decision threatens the ability of the state to "conserve, promote and develop wildlife populations within their borders."
The ruling that Arizona's limits on out-of-state big-game licenses are an unconstitutional restriction on interstate commerce conflicts with numerous other court decisions, Morris said. He said the court's logic "runs squarely into a long line of cases holding that recreational hunting does not qualify as interstate commerce and that wildlife does not constitute an article of commerce."
But as long as we risk making deals with the devil, says Posewitz, by allowing commercialization or privatization of wildlife, Montana's long heritage of public hunting and public wildlife management could be placed in jeopardy.
"We have to keep rallying if we want to pass this on to coming generations," Posewitz says. "Managing wildlife as a noncommercial public resource is a very recent experiment in history. So it's pretty fragile. It can only persist as long as we keep standing up for the principle."
http://www.missoulian.com/display/inn_features/outdoors/od01.txt
Deal with the devil
By DARYL GADBOW of the Missoulian
Organization seeking ways to preserve resident hunting rights, while handling demand for commercial out-of-state access
"We cut a deal with the devil," says Jim Posewitz of Helena, executive director of the hunting rights and ethics organization Orion: The Hunter's Institute, and author of "Inherit the Hunt" and "Beyond Fair Chase" - the bibles of hunting ethics in Montana.
The devil, says Posewitz, is commercialization of wildlife and hunting.
And the deal is the outfitter-sponsored "set-aside" big-game hunting licenses that Montana sells to out-of-state hunters through outfitters at a variable, market-based price. The revenue from sales of the outfitter-sponsored nonresident deer and elk combination licenses - nearly $5 million was projected in 2002 - is the bulk of the money used since 1996 to fund the state's extremely popular Block Management Program.
The Block Management Program pays private landowners to allow free public access for hunting.
The question facing Montana now, according to Posewitz, is: Has the time come to pay the devil his due?
"It's probably the most important question of our times," he says. "It's hugely important that we respond appropriately."
Speaking at a Missoula meeting of the Montana Wildlife Federation last week, Posewitz said that organization of hunters and anglers is concerned about "a litany of threats" of commercialization and privatization currently facing Montana's tradition of public hunting and wildlife management.
Some of the concern arises from a recent decision by the 9th U.S. Circuit Court of Appeals that struck down Arizona's limits on big-game licenses to out-of-state hunters as an act of "overt discrimination." The San Francisco-based court added that such discrimination was an unconstitutional restriction on interstate commerce for hunters wanting to sell antlers and other game animal parts.
Montana is one of at least 23 states other than Arizona that impose limits on the number of nonresident hunting licenses. And Montana is one of 22 states that are asking the U.S. Supreme Court to overturn its ruling against Arizona.
The 9th Circuit ruling "wouldn't necessarily apply to Montana immediately," said Bob Lane, chief legal counsel for Montana Fish, Wildlife and Parks, "because we have a Supreme Court decision from 1978 that found our limit on the number of elk hunters and the higher price (for out-of-state licenses) was constitutionally valid."
However, Posewitz points out, that 1978 Supreme Court decision was based on the "equal rights" provisions of the U.S. Constitution, not on the interstate commerce section.
One hundred years ago, Posewitz says, Montana, along with the rest of the country, was nearly devoid of wildlife.
"We had stripped the country clean," he says.
Led by President Teddy Roosevelt, says Posewitz, and with the strong backing of the nation's hunters and anglers, a conservation ethic was born that brought wildlife back to the abundance we see today.
The somewhat revolutionary idea that wildlife is a public resource was a key tenet of that successful conservation movement, he adds.
In the 1978 Supreme Court ruling upholding Montana's authority to discriminate against nonresident hunters, the state prevailed in its argument that Montana has an abundant wildlife resource because its residents have made sacrifices to protect the habitat on which the wildlife depends.
Important points in the court's 1978 decision, according to Posewitz, were that the state owns the wild animals within its borders and holds them in trust for its citizens; the state can limit hunting to protect its wildlife resources; there is no fundamental right for all people to hunt for sport; and that elk are not and never will be hunted commercially.
A retired FWP wildlife biologist, Posewitz argued within the department in 1993 against the proposal to have market-based pricing for out-of-state big-game hunting licenses because he believed it could "undermine the court's ruling."
"Outfitter set-aside licenses clearly is commerce," says Posewitz. "Now the 9th Circuit ruling jeopardizes our resident hunting rights. My argument may not be that simple. But it's a dangerous, dangerous thing to be doing."
Like any deal offered by the devil, the attractions are great, he adds. In this case, the reward is more than 8 million acres of private land opened to public hunting access in 2002 through FWP's Block Management Program.
"Yes," says Posewitz, "I thought it was attractive then (in 1995) and I think it is now. Now the most important thing we can do to preserve our resident hunting rights is to purge the commerce from our hunting that's come in the last 20 years."
One unforeseen consequence of the outfitter set-aside licenses has been an increase of outfitter leases of private land for exclusive hunting rights of their clients, taking lands out of the Block Management Program, and denying public access to publicly owned wildlife.
Those leasing practices threaten to make hunting a sport only available to the wealthy and privileged, says David Stalling of Missoula, a Montana Wildlife Federation member who is trying to reactivate a Missoula chapter of the organization.
The MWA is introducing legislation this session in the Montana Legislature that would require nonresident hunters who purchase the outfitter-sponsored set-aside licenses to hunt on public lands, according to Craig Sharpe, executive director of the federation.
The legislation, Sharpe says, "might inhibit private leasing by taking the outfitter out of the equation."
Some sportsmen, including some elements of the MWA, favored repealing the nonresident outfitter-sponsored set-aside licenses altogether, says Stalling. So the proposed legislation is a compromise, he says.
The legislation that created the Block Management Program and the variable priced nonresident outfitter-sponsored set-aside licenses will sunset in 2006, according to Allan Charles, director of FWP's Landowner/Sportsman Relations. The 2005 Legislature will review the programs and decide whether to continue them.
"Jim's (Posewitz's) point is well taken," says Charles. "But you have to go back to 1995, with all the competing interests struggling to work together. Prior to this there was no free-market. Outfitters had to compete based on the license drawings. It was a crap shoot. There was no guarantee they'd have clients. So outfitters often would have to tie up a maximum amount of land in leases in case all their clients were drawn for permits. So there was a negative impact on public access.
"I think we in the department, when we try to craft an access program, we find one-size-fits-all doesn't work. Some landowners and some outfitters want to allow some limited outfitter hunting. I think there are some win-win situations out there. I don't think we've explored all the options."
In Montana's appeal of the 9th Circuit decision, Brian Morris, Montana's state solicitor, said the decision threatens the ability of the state to "conserve, promote and develop wildlife populations within their borders."
The ruling that Arizona's limits on out-of-state big-game licenses are an unconstitutional restriction on interstate commerce conflicts with numerous other court decisions, Morris said. He said the court's logic "runs squarely into a long line of cases holding that recreational hunting does not qualify as interstate commerce and that wildlife does not constitute an article of commerce."
But as long as we risk making deals with the devil, says Posewitz, by allowing commercialization or privatization of wildlife, Montana's long heritage of public hunting and public wildlife management could be placed in jeopardy.
"We have to keep rallying if we want to pass this on to coming generations," Posewitz says. "Managing wildlife as a noncommercial public resource is a very recent experiment in history. So it's pretty fragile. It can only persist as long as we keep standing up for the principle."
