Friday, November 10, 2006

To "Take"...back to hunting

“Take- To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct; may include significant habitat modification or degradation if it kills or injures wildlife by significantly impairing essential behavioral patterns including breeding, feeding, or sheltering.”
U.S. Fish and Wildlife Service
Endangered Species Glossary

“It is obvious that ‘take” in this sense—a term of art deeply embedded in the statutory and common law concerning wildlife—describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals)...”
Scalia’ dissent
Babbitt v. Sweet Home, 516 U.S. 687 (1995)

In a recent lecture about biodiversity and the Endangered Species Act at Cornell University, the issue of the interpretation of the word “take” arose. This definitional issue was at the heart of multiple rulings regarding incidental takings and the requirement for Habitat Conservation Plans, but it is also applicable, and confusing, to hunting and fishing regulations, as well as other wildlife management issues related to biodiversity. This post will explore further the etymology and usage of the word “take” in a wildlife context, and muse about possible complications when the definitions suggested by the Endangered Species Act and other legislation enter arguments.

To Take-

Hunting, an obvious form of “taking,” is often a contentious topic among ecologists and environmentalists. For Minnesotans, to take has additional meanings: ‘Taking’ means pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, or netting wild animals; or placing, setting, drawing, or using a net, trap, or other device to take wild animals. Taking also includes attempting to take wild animals or assisting another person in taking wild animals” (Minnesota DNR; General Hunting Information
[2]). Some states have run special referendums to guarantee hunting, fishing, and "the taking of game" as constitutional rights. Again, in Minnesota, advocates of hunting and fishing warned that without such a measure, animal rights activists would eventually succeed in getting hunting and fishing banned in Minnesota. The amendment passed by a huge majority: 77% to 23%.[3] Many states have similar definitions for “taking” as well as rights to hunt and fish laws. But do constitutional rights to “take” game conflict with regulations to prevent “taking?”

The concept of the “take” or “taking’ has deep legal roots. The common law rule of public ownership of wildlife is one of the most venerable principles known to the law. Under Roman law, wild animals were subject to common ownership, and a landowner had no ownership rights in wildlife passing over his land. (See J.C. Thomas, TEXTBOOK ON ROMAN LAW 167 (1976)). Under English common law, which built upon the Roman legal tradition, "the sovereign held an exclusive prerogative to animals" over and above the interests held by individual landowners (See 2 W. Blackstone, COMMENTARIES 417-18.). Upon the founding of the United States, the king's sovereign rights in wildlife were transferred to the individual states, which assumed the responsibility to act "as trustee[s] to support the title [in wildlife] for the common use." Arnold v. Mundy, 6 N.J.L. 1, 70 (N.J. 1821). (See generally Thomas A. Lund, Early American Wildlife Law, 51 N.Y.U.L. Rev. 703 (1976)).

Although our nation's original concepts of wildlife law reflect English tradition, American wildlife law has moved a long way from simply restricting public access to hunting in royal forests to preserve wildlife for the sporting enjoyment of nobility.
[5] Now it is common to encounter strict statutory prohibitions on taking non-game wildlife, and there is an evolving national ethic to protect wildlife for aesthetic and moral reasons, as well as to benefit future generations. The development of federal wildlife law in this century in some instances has been based on a consistent and growing public concern for wildlife and appropriate use of wildlife resources, and in other instances simply has responded, along with other environmental laws, to the ebb and flow of changing political forces.[6]

Conflicts in “Take” Definitions

Despite the beneficial evolution of wildlife law, both to wildlife populations and to human aesthetics, there are still confusing definitional problems as yet unresolved. The following example elucidates this confusion:

Recently, The Hunting Report
[7] received a report from subscriber William Gentner, complaining bitterly about an Alaska guide he hired, who reportedly fired the killing shot at a bear Gentner was hunting on Kodiak Island. Gentner claims the guide's bullet was the only one to strike his bear, and that he had told his guide not to fire at a bear unless someone’s life was in danger. Since that was not the case, he considered the downed bear as not belonging to him. Gentner reputedly went to the local Alaska Department of Fish and Game (ADFG) office in Kodiak the following day. There he was threatened with citation and prosecution if he didn't sign a “take” document he felt contained false information. He subsequently refused to tag and seal it, and has to this date refused to accept the trophy.

Gentner wrote the ADFG commissioner arguing that the shooting of the bear by his guide contradicted two statutes, an opinion he says was shared by two Alaska law enforcement officials. The commissioner has not denied this. The commissioner did respond that it was legal for the guide to shoot the bear because Gentner's missed shot was an "Attempt to take, which is the same as take".

Gentner claims to be harmed, in that he is out $16,000, a $500 bear tag and can't re-apply for a brown bear tag in most areas of Alaska for 4 years because of the decision that it was reasonable for a guide to shoot. Gentner has cancelled his spring 2004 Alaskan hunt and is agitating that any would-be non-resident hunter do the same.

The State of Alaska in a letter to William Gentner, however, says the bear belongs to Gentner because:
1.) Alaska regulations say that the term "take" as regards hunting includes "attempting to take, pursue, hunt, fish, trap, or in any manner capture or kill fish or game. By taking the first shot, you (Gentner) attempted to take the bear. Its eventual demise was a direct consequence of your decision to shoot. Thus the bear was yours, and you had an obligation to tag and seal it." 2.) Alaska regulations require a guide to "use every lawful means to bag a wounded animal while it is in danger of escaping. While (your guide) was mistaken in his belief that the animal was wounded, he acted correctly on that belief by dispatching the bear."

The Alaska Department of Fish and Game commissioner's decision in what some saw as a hunting ethics case was based on the definition of the word "Take" in the hunting regulations no.43
[8]. The commissioner also gave credence to the guide’s predisposition to believe the client was going to hit whatever he shot at. This decision may affect hunting in Alaska, as situations such as this present conflicts for Fair Chase and ethical hunting rules and standards.

This case has given rise to numerous blog and online discussion boards where arguments, some interesting, some ridiculous, are being posited. One interesting one follows.

A frequent contributor to the Alaska Hunting Forum
[9] proclaims that “a warning is in order to all hunters and guides that it is illegal to miss an animal and not bring it to bag, or to guide a hunter that does so.[10]” He goes on to lay out a scenario where a hunter clearly misses a shot at a brown bear and the bear subsequently runs over a hill and escapes. The forum poster argues that, according to the definition applied to Mr. Gentner by the state of Alaska, the hunter has "taken" the brown bear. He argues further that, now, according to state law he must affix his tag to the bear's hide, which obviously can’t be done, and implies or necessitates a violation. Assuming this turn of events, the hunter’s guide may be culpable for aiding the hunter in breaking the law and must turn him in to avoid his own prosecution.

Despite what appears to be an absurd argument, the forum poster goes on to raise provocative questions about interpreting “taking.” If the hunt was for moose and not a bear, and given particularly stringent laws governing wanton waste and salvaging meat, both the hunter and his guide may be in danger of violating the law. If one imagines a scenario where the guide is a waterfowl guide, does the guide have to count the number of ducks his client has shot at and missed, and cut him off after he shoots at his limit, even if he has reduced to possession only one or perhaps even no ducks or geese? What if the desired animal is standing just over the boundary line of a national park after the missed shot. Is it the guide’s responsibility to go enter the national park, without his gun, to put a tag through his hide? And how about carrying him back to have sealed? As the poster comments, given these interpretations of “taking,” “Boy, is guiding tough.”


It is interesting to note that the usage of “take” can be interpreted in so many and diverse ways, even within the relatively narrow parameters of discussions on biodiversity conservation. It is worth noting that, though some argue against hunting, fishing, and other “consumptive” wildlife interactions on moral or ethical grounds, these consumptive wildlife stakeholders contribute significantly to biodiversity conservation through their purchasing power, advocacy networks, and educational programs dealing with their preferences. One might ask the question whether it would be appropriate to interpret “take” any differently for protection of endangered species versus hunting with the intent to possess managed game species. Such an alternate interpretation may reduce confusion around the concept of “taking,” and in so doing reduce conflict among stakeholders who, though holding alternate worldviews on animal welfare, share interest and concern for the conservation of biodiversity.



[3] ASLE panel at the 1999 Midwest/MLA Convention; “Blood Relations: Predators, Prey, and Habitat in Environmental Literature.”


[6] Comprehensive treatments of natural resources and environmental law can be found in C. Campbell-Mohn, B. Breech and J. W. Futrell, Sustainable Environmental Law: Integrating Natural Resources and Pollution Abatement Law from Resources to Recovery (West, 1993) and in G.C. Coggins, Public Natural Resources Law, Volumes I & II (Clark, Boardman. Callaghan, 1995).






Joshua said...

Not sure what advantage it is to attempt a "Unified Take Theory" in the context of both hunting and endangered species law.

The Endangered Species Act is an imperfect tool. There just aren't a lot of laws that conservationists and environmentalists can use to address habitat-level threats. ESA, by default, is THE tool for conservation.

So the concept of take with regards to ESA continues to be broadly defined. Its meaning continues to be debated in court.

For hunting, take has a more narrow and clean definition. The whole Alaska bear hunting guide fiasco is an outlier. Even here though take hinges merely on who took the shot (or whether it was reasonable for the guide to assume the hunter took the shot).

Interesting discussions, I just wouldn't lump ESA take with hunting take.

Two separate discussions.

KGT said...

If they were two separate discussions, why would the Take definition have figured so prominently in Scalia's dissent?

Also, the definition of take in many states FOR HUNTING is analagous to the ESA definition. Josh, I just don't buy your distinction argument, but appreciate the Federal loyalty. ;)

KGT said...

More thought on this...

"For hunting, take has a more narrow and clean definition..." sayeth Broadway Josh...

New York-
To hunt—means to pursue, shoot, kill or capture (other than trap) wildlife and includes all lesser acts that disturb or worry wildlife whether or not they result in taking. Hunting also includes all acts to assist another person in taking wildlife.
To take—means to pursue, shoot, hunt, kill, capture, trap, snare or net wildlife and game—and all lesser acts that disturb or worry wildlife—or to place or use any net or other device commonly used to take wildlife.

Hunting- pursuing, capturing, catching, killing, gigging, trapping, shooting or attempting to pursue, capture, catch, kill, gig, trap or shoot, or in any manner take any bird or mammal into personal possession. (Keith here) It is interesting that in MD bag limits are defined as game birds and animals that can be taken, but the regs do not define TAKE.

Hunt" or "hunting." Any act or furtherance of the taking or killing of any game or wildlife, or any part or product thereof, and includes, but is not limited to, chasing, tracking, calling, pursuing, lying in wait, trapping, shooting at, including shooting at a game or wildlife facsimile, or wounding with any weapon or implement, or using any personal property, including dogs, or the property of others, of any nature, in furtherance of any of these purposes, or aiding, abetting or conspiring with another person in that purpose. --"Take." To harass, pursue, hunt for, shoot, wound, kill, trap, capture, possess or collect any game or wildlife, including shooting at a facsimile of game or wildlife or attempt to harass, pursue, hunt for, shoot, wound, kill, trap, capture or collect any game or wildlife or aiding, abetting or conspiring with another person in that purpose.

(Keith here again)There IS no attempt to create a unified take theory. It has already been done, and more's the pity. In law, there really aren't "outliers" like in statistics...there are precedents and case law. The Alaska case hinged on whether or not taking a shot meant "take," and whether additional regulations exempted the guide from the take, hit or miss.

If someone can convincingly describe to me, based on the above analagous HUNTING definitions of hunt and take, how it is so simple to dismiss the similarities in ESA and state hunting regs, and associated legal pitfalls and implications, I would greatly appreciate it. Meanwhile, I will continue to contemplate how it is that when I shoot at and miss 6 ducks, I have "taken" my limit. Take that, Sminelli. Think of how many bands I have actually "taken."