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"The rich … who are content to buy what they have not the skill to get
by their own exertions, these are the real enemies of game." Theodore
Roosevelt’s Principles of the hunt. The proponents of high fence shooting operations offer up two arguments to support fencing deer, elk and exotics inside escape proof enclosures, shooting the animals, and calling it hunting. The first argument the high fence operators invoke: They make money. The second argument: Property rights, or as one high fence operator said, "It's my property and I'll do with it as I dammed well please." That right is asserted based on supposition and is not based on fact or law. Society decides what people do with their property. If in doubt, ask Michael Vick. Vick fought dogs that were his private property. Vick and his cronies fought those dogs on property that Vick owned. You may write to Mister Vick in care of the United States Penitentiary at Leavenworth, Kansas. Perhaps Mr. Vick will take time out of his busy schedule to explain property rights to high fence operators in North Dakota. The high fence operators and their supporters don't cited constitutional, statutory or court opinions to back the absolute property right they claim because they can't. The state may sanction what the canned shooting operators do, but the state had to use a few bureaucratic and political hat tricks to allow shooting captive animals behind a fence in disregard of every game law this state has passed since we became a state. The most egregious trick reclassified deer and elk from game animals to domestic livestock. They shoot livestock, not game animals. Here are the facts on property rights the canned shooters claim backed by court decisions: In 2000, Montana voters passed Initiative 143 mandating among other provisions, that the state shut down high fence shooting operations. The Montana high fence operators challenged Initiative 143 in state and federal court alleging that the law stripped them of their livelihood and their constitutional rights by stripping them of their property rights. The high fence operators lost on all counts. The court opinions filed in the case demolished the fraudulent property rights the Montana operators raise as a defense to what they did, phantom rights North Dakota high fence operators continually cite. U.S. District Court Judge Sam Haddon ruled that the high fence operators had no “absolute or unfettered right to operate an alternative livestock ranch as they see fit.” Judge Haddon wrote … that I-143, “advances legitimate non-illusory state interests in protecting Montana wildlife.” (In other words, the rights high fence operators claimed were an illusion but the state's authority to shut down canned shooting was not an allusion.) Judge Haddon stated in his opinion that “There is no fundamental right to run your business as you see fit. A game-farm license is a privilege, not a vested right. It can be taken away or modified.” The High Fence operators argued an unconstitutional taking of
property but didn’t base their takings claim on an actual taking of their
property. They argued a reduction in value of their property, namely their
animals lost value as trophies. Judge Haddon ruled that the, “Plaintiffs’
premise is unsound. …they have cited no case and
this Court has found no decision supporting the proposition that a
constitutional taking claim may be asserted on the basis of a diminution in
value, as distinct from a total loss of value, of the property.
Developed law leads to the opposite conclusion. (NOTE: Lawyers for the high fence operators could not find a single
court case that supported this argument.) After Judge Haddon ruled against the high fence operators on
all counts, the operators appealed to the Ninth Circuit Court
of Appeals. The operators claimed an interstate commerce violation among other
violations. The Ninth Circuit upheld Judge Haddon’s ruling in its entirety and
added these nails to the coffin of the high fence shooting operations: The only basis for Spoklie’s (The Lead
Plaintive) assertion that Initiative 143 unduly burdens interstate commerce is
his claim that fee shooting primarily attracts out-of-state residents.
That a particular service or recreation appeals
to out-of-staters, however, does not impose on states an obligation to permit
it. States enacting statutes affecting
interstate commerce “are
not required to convince the courts of the correctness of their legislative
judgments.” If the legislature “could have concluded rationally” that certain facts supporting its decision were true, courts may not question its judgment." Voters who supported I-143 could rationally have concluded that the proposition would promote environmentally sound resource management by encouraging sport hunting in preference to fee hunting, and that it would prevent transmission of disease from the interbreeding of game farm and wild populations. Supporters could also rationally have concluded, as advocates of I-143 urged in their pre-election arguments, that fee hunting created an "unacceptable, bankrupt image of hunting portrayed by the paid shooting of captive animals," thereby threatening the state's "strong economy based on the public pursuit and enjoyment of wild, free-ranging public wildlife." None of these rationales is clearly arbitrary or pretextual, and all implicate issues of safety, health, and welfare that are within a state's legitimate police power. The property rights argument advanced by the high fence operators does not stand up to philosophical or legal scrutiny. It is a bogus argument put forward to defend an indefensible practice. Take Fair Chase out of the equation by fencing the animal and you have something, and that something isn't hunting.
For More Information, Contact: Roger Kaseman 8120 17th Avenue S. E. Linton, North Dakota 58552 701-254-4875
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