Florida Bar Journal

Qualifying Hunting and Fishing as the Preferred Means of Managing Wildlife: A Potentially Dangerous Ballot Initiative that Provides Little Protection to Hunters and Fishermen

This November, Florida voters will have the opportunity to enshrine hunting and fishing as a constitutional right in the state. Each voter’s ballot will state the following language from House Joint Resolution 1157:

Constitutional Amendment; Article I, Section 28

RIGHT TO FISH AND HUNT. – Proposing an amendment to the State Constitution to preserve forever fishing and hunting, including by the use of traditional methods, as a public right and preferred means of responsibly managing and controlling fish and wildlife. Specifies that the amendment does not limit the authority granted to the Fish and Wildlife Conservation Commission under Section 9 of Article IV of the State Constitution.^[1]

While Florida voters may hold favorably the idea of enshrining hunting and fishing as a constitutional right, the proposed amendment would have a broader effect on wildlife than the average recreational hunter or fisherman. The amendment begins by promising to “preserve forever fishing and hunting…as a public right.”^[2] This language may draw voters in, as hunting and fishing are widely practiced and cherished by many Floridians. However, the text that follows presents a more drastic effect of the amendment. It would make hunting and fishing the “preferred means of responsibly managing and controlling fish and wildlife.”^[3] This proposed amendment would place hunting and fishing ahead of other, non-lethal means for managing Florida’s wildlife.^[4] If passed, this constitutional amendment would make authorizing a hunt of these animals easier and quicker, potentially even before other science-backed measures are implemented for decreasing human-animal interactions. Using hunting and fishing as the first-rung approach for managing wildlife could have a catastrophic effect on wildlife populations throughout the state, and such a drastic change would only require 60% of votes to be enacted.^[5] This amendment presents a controversial topic for many Floridians, sparking a debate about the balance between wildlife conservation, alternative means for management, and preempting any future threats to hunting and fishing. This article examines the issue from both angles and presents a case study of the Florida black bear (Ursus americanus floridanus) to highlight the way the amendment may affect the species.

Hunting and Fishing in Florida

Hunting and fishing are essential to the culture, livelihood, and sustainability of Florida. These practices have supported Floridians recreationally and nutritionally for hundreds of years. While hunting and fishing provide enjoyment and nourishment to humans, the practices also aid in conserving and promoting respect for wildlife. In fact, the U.S. Fish and Wildlife Service credits hunters as some of the leading conservationists in the country.^[6] Aside from raising funds from licensing fees to protect critical habitats, hunting and fishing can also be used to keep species at a healthy number for their area and help maintain a balanced ecosystem.^[7] Undoubtedly, hunting and fishing are crucial to Florida’s ecosystem and variety of cultures.

With controversy surrounding the best way to protect, but also regulate, hunting and fishing, there is an increased demand to codify these practices and preempt any future attempt to outlaw them. The Florida ballot initiative in House Joint Resolution 1157 would enshrine hunting and fishing as constitutional rights in our state. Should any future threat occur against the practices, this amendment would protect them. However, the amendment goes beyond this mere protection, as it would also qualify hunting and fishing as the “primary means for responsibly managing and controlling fish and wildlife.”^[8] The amendment states nothing about how other methods for management and control should be used, only that hunting and fishing shall be the primary one.

While several means exist for managing and controlling wildlife, some groups claim that hunting and fishing are the most effective.^[9] The association, for example, supports hunting and fishing as the primary means for management because of the costs and effectiveness of other methods, such as sterilization and contraception.^[10] In support of hunting and fishing management practices, the Congressional Sportsmen’s Association gives the example of the white-tailed deer and explains how hunting the species is crucial for its management.^[11]

While it may be true that hunting is the best management for white-tailed deer in certain instances, it is also true that management practices vary, and hunting may not be the most effective or responsible form for other kinds of animals.

House Joint Resolution 1157

Supporters of HJR 1157 point to the monetary value of hunting and fishing as well as the American way of life in supporting the joint resolution. Rep. Lauren Melo explained that “HJR 1157 is about the heritage of Florida…. Many people don’t realize the economic value fishing and hunting provides our great state, combining just over $15 billion annually.”^[12]

Sen. Jim Boyd also spoke about other states’ attempts at outlawing fishing and hunting, explaining that Florida would not do the same.^[13] In support of this concern, Sen. Boyd cited a ballot initiative in Oregon as evidence of increased threats to hunting and fishing.^[14] This initiative sought to amend Oregon statutes to include several presently lawful acts as punishable under Oregon’s animal cruelty statutes, including hunting and fishing, the slaughter of livestock, and actions related to lawful animal husbandry.^[15] This initiative did not receive sufficient signatures to be included on the ballot.^[16] Furthermore, Melo and Boyd voiced concerns for the future of hunting in Florida, despite others claiming to have seen a lack of efforts to outlaw the practice.^[17]

Behind this joint resolution is the International Order of T. Roosevelt action group, which claimed that this bill was needed due to illusory threats to hunting in other states, echoing Sen. Boyd’s example of Oregon’s Abuse, Neglect, and Assault Exemption Modification and Improvement Act.^[18] No other example was provided to highlight the allegedly pervasive threat to hunting in our country.

Hunting is not outlawed in any state. There are regulations surrounding the practice, such as requirements for hunting and fishing licenses and habitat-specific rules governing the methods one may use to capture wildlife.^[19] The proposed constitutional amendment would not expand the rights already held by Floridians. Persons wishing to hunt or fish must still obtain a permit as required. The Florida Fish and Wildlife Conservation Commission (FWC) would still have the authority to regulate as it already does.^[20] Should hunting and fishing face the possibility of becoming outlawed in Florida, this proposed amendment would protect such practices. However, little evidence suggests that any threat is likely to occur.

Even so, merely protecting hunting and fishing is not problematic, but the language that follows is far more concerning. Read in its entirety, the second half of this constitutional amendment provides a method for enacting a more impactful and harmful clause: listing hunting and fishing as the preferred means of responsibly managing and controlling fish and wildlife. Amending the Florida Constitution to qualify hunting and fishing as the preferred means of managing wildlife would tip the scales in favor of broader hunting seasons, more relaxed hunting and fishing regulations, and the authorization of another bear hunt, as FWC did in 2015. Florida voters may elect to support this ballot initiative for the protection it promises to hunting and fishing. However, what many voters may not know is that the second part of the amendment would create an easy path toward authorizing hunts that are contradictory to science and are done before any alternative means are implemented to manage wildlife. The Florida black bear, for example, would be placed especially at risk should the amendment pass. The frequency of interaction between humans and bears in Florida has increased in recent years, largely in part due to booming land development, habitat fragmentation, and the scent of food in trash cans. With this increase comes the need for better management. If this ballot initiative passes, hunting bears may become our first-string approach to solving new issues that arise from increased interactions with bears.

Legal Challenges

HJR 1157 specifically allows for FWC to maintain its regulatory authority of hunting and fishing.^[21] Fla. Const. art. IV, §9, states the following regarding FWC’s authority to regulate the practice:

The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life…except that all license fees for taking wild animal life, fresh water aquatic life, and marine life and penalties for violating regulations of the commission shall be prescribed by general law. The commission shall establish procedures to ensure adequate due process in the exercise of its regulatory and executive functions. The legislature may enact laws in aid of the commission, not inconsistent with this section, except that there shall be no special law or general law of local application pertaining to hunting or fishing.^[22]

Little caselaw exists on the issue of creating a constitutional right to hunt and fish. Of the cases that have been decided, however, it is clear that such an amendment would limit the ability of the legislature and local municipalities to regulate any matter that may have an effect on hunting and fishing, even if inadvertent. While preventing a ban on hunting and fishing is part of the goal of this amendment,^[23] this amendment could potentially also ban certain changes to hunting and fishing regulations, which may be necessary in the future to protect Florida’s wildlife in a rapidly developing state.

As for local governments, the state has already preempted the local application of hunting or fishing regulations. If passed, the constitutional amendment may prevent courts from upholding regulations that could have an impact on the practice of hunting and fishing. For example, in Hunters United for Sunday Hunting v. Pa. Game Comm’n, 28 F. Supp. 3d 340, 343 (Pa. M.D. 2014), plaintiff sought injunction against the Pennsylvania Game Commission for its rule that prohibits hunting of certain animals on Sundays.^[24] The court ruled in favor of the defendant, arguing that absent any constitutional protection of the right to hunt, such a regulation was not in violation of plaintiff’s Second Amendment rights.^[25] Had Pennsylvania had a constitutional amendment similar to the one proposed in Florida, this rationale would not have existed, and, thus, cases brought against a regulatory or legislative body other than the Fish and Wildlife Conservation Commission would fail, even if the regulation itself was based on a legitimate government interest and sound evidence.

If the proposed amendment is passed and hunting and fishing become constitutional rights, other regulations that do not pertain to hunting and fishing, but could have an effect on the practices, would also be at issue. For example, if a local ordinance is passed to prevent individuals from entering certain areas of a beach after dark, this could be struck down because of the amendment. This hypothetical ordinance may be to protect turtles nesting in the area but could also have the effect of preventing fishermen from accessing that portion of the beach and thus inhibiting their ability to fish in that area. Even though such an ordinance would be enacted for the purpose of protecting an endangered species, it is possible that the proposed amendment would pave the way for an individual to challenge the municipality for creating a rule that inadvertently affects the constitutional right to fish.

Other States

Constitutional protection for hunting and fishing is not new. In fact, 25 states — including Florida — already have some form of constitutional or statutory protection for hunting and fishing.^[26] Of these states, 23 have the right included in their constitution, while Florida and New Hampshire state it statutorily.^[27] Only 11 of these 23 states’ constitutional amendments specify that hunting and fishing shall be the preferred means of managing wildlife. These states include Alabama,^[28] Arkansas,^[29] Idaho,^[30] Indiana,^[31] Kansas,^[32] Mississippi,^[33] Nebraska,^[34] North Carolina,^[35] Oklahoma,^[36] Texas,^[37] and Utah.^[38]

Florida, however, is unique as it is home to the Florida black bear, a once threatened species. The Florida black bear is no longer considered threatened, with an estimated population of roughly 4,000.^[39] However, increasing development has greatly fragmented the animal’s population and created an uncertain future for the species. If the Florida Constitution were to be amended to qualify hunting and fishing as the preferred means of managing wildlife, the Florida black bear would have to face yet another challenge to its survival.

The Florida Black Bear

Before there were sprawling subdivisions and endless shopping centers, there were ceaseless forests of native hardwoods and bushes full of berries. Florida black bears used to roam the forests in search of food, uninterrupted by busy highways and untempted by loose garbage. Unfortunately, those days are long gone. As Florida continues to develop at an astounding rate, it will continue to lose its precious natural landscapes, forcing wildlife big and small to either die off or learn to live among humans. This presents dangers to wildlife and humans alike, prompting the need for increased wildlife management. Under the proposed constitutional amendment, the primary means for responsibly managing and controlling wildlife would be hunting and fishing, even without first examining other non-lethal methods. This could be extremely dangerous to Florida’s wildlife, and especially the Florida black bear.

The Florida black bear is one species that may face increased challenges to its population should the amendment pass. Up to today, the species has had a rocky past. The Florida black bear population took its first hit in the 1970s. Extreme and unregulated hunting reduced the black bear population to a mere 300 bears in 1974, leading the species to be listed as a threatened species under the Florida Endangered Species Act.^[40] Over the next 38 years, the black bear population gradually increased to approximately 3,000 bears and was no longer considered an endangered or threatened species by FWC in 2012.^[41] In 2015, FWC deemed it necessary to hold a hunt to reduce the population. With increasing urban development and bear numbers, something needed to be done to prevent human-bear interactions. While FWC has taken steps to protect black bears in the wild and promote bears and humans peacefully coexisting, such as creating the Statewide Bear Technical Assistance Group to research, develop, and update a bear management plan, FWC also must consider the wishes of its constituents, many of whom enjoy hunting large game.

In 2015, FWC held a black bear hunt. More than 3,200 hunters purchased permits to participate in the week-long hunt, which FWC ended in just two days.^[42] While the intended number of kills was reached prematurely, Thomas Eason of the FWC explained that this was not concerning as it could reflect the growing bear population.^[43] However, the hunt was ended after the target number of kills were reported. In the Panhandle region alone, 112 bears were killed in less than 48 hours, which was higher than the area’s 40-kill limit.^[44] This count did not include the number of orphaned cubs as a result of the illegal killing of lactating females. During the hunt, hunters were also issued citations for killing bears well under the weight limit.^[45] While the total number of reported legal kills was 306 bears, this did not include any bears that were illegally poached that year.^[46] After calling off the hunt early, many hunters in remote areas likely lacked cellular service and, thus, were not informed of the hunt’s early termination, which may have resulted in bear kills going unreported. Leading up to the 2015 hunt, something had to be done to manage black bear populations. A hunt was one option, but its results indicate that other options should have been explored or, at the very least, the hunt should have been better regulated.

In 2023, FWC insinuated the possibility of another hunt.^[47] Given the results of the 2015 hunt, conservationists and activists were extremely worried about the possibility of a similar hunt and showed up in force to the May 2023 FWC Commission meeting in Miami. Although a bear hunt was not on the agenda for this meeting, 12 citizens appeared to speak before the counsel in opposition of another hunt.^[48] FWC chose to not list a bear hunt on any of the remaining FWC Commission meeting agendas for the remainder of 2023.^[49]
One concern surrounding the Florida black bear population is the interaction of these animals with humans and other animals. FWC data on bear-related phone calls received by the agency indicates that the number of calls increased between 2003 and 2013.^[50] In 2003, FWC states that it received 1,104 bear-related calls. This number peaked at 6,734 calls in 2013.^[51]

According to FWC’s data, the amount of bear related complaints between 2015-16 decreased immediately after the 2015 hunt.^[52] However, the amount of bear related complaints was already on a downward slope before the October 2015 hunt.^[53] Between 2015-16 when the hunt occurred, the amount of core complaints, or conflict related calls, decreased by 5%.^[54] Core complaints increased by 3% between 2016-17.^[55] The next year, however, between 2017-18, the percent of core complaints decreased by 8% without a hunt.^[56] The total number of bear related calls in 2022 was greater than in 2011, a year before the Florida black bear was delisted.^[57] However, the percentage of calls that reflected core complaints was 54% in 2011 and 36% in 2022.^[58] Based on FWC’s data, bear-related calls fluctuated even in years without a bear hunt.

While hunting is one method for population control, other methods exist. Bear-resistant trash cans, for example, can greatly reduce the number of human-bear interactions.^[59] If the proposed constitutional amendment passes, the Florida Constitution will support the assertion that hunting bears is the primary means for management. This assertion ignores other, non-lethal possibilities, such as implementing bear-proof trash cans.

Conclusion

Hunting and fishing are essential parts of the history and culture of the state of Florida. Enshrining these practices as a constitutional right would undoubtedly provide a means for protecting these rights should any threat occur in the future. However, there is little evidence that any such a threat will occur. The only cited instance of this is a failed ballot initiative that sought to outlaw hunting, amongst several other practices, in Oregon. What there is evidence of, however, is the threat that Florida’s proposed constitutional amendment would present to wildlife and the ecosystem as a whole. Read in its entirety, the proposed constitutional amendment provides protection against unlikely challenges to hunting and fishing, but also poses a grave threat to the species already struggling against habitat fragmentation and human interference. Qualifying hunting and fishing as a constitutional right is not the issue. The danger of this amendment is listing these practices as the primary means of responsibly managing and controlling wildlife. For the future and health of Florida’s wildlife and environment, this constitutional amendment presents more harm than good.

This column is submitted on behalf of the Animal Law Section, Ashley Baillargeon, chair, Macie J. H. Codina, editor, and Ralph A. DeMeo, special editor.