Wildlife Management and the Effects of Hunting
By
Christopher White
I. Introduction.........................................................................................
II. History of Wildlife Management & Hunting…………………………
III. Deer Overpopulation………………………………………………...
IV. Effects of Hunting on the Environment……………………………..
A. Crops, Plants, and Wildlife…………………………………..
B. Disease………………………………………………………..
C. Lead in Bullets………………………………………………..
V. Effects of Hunting on the Economy………………………………….
A. Financial……………………………………………………...
B. Land Use Rights………………………………………………
VI. “Federalizing” Wildlife Management……………...........................
VII. Conclusion.......................................................................................
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I. Introduction
State wildlife agencies and individual hunters have helped resurrect the whitetailed deer population in the United States from 500,000 in the early 1900’s to over 33
million today.1 Now the white-tailed deer herds are so large that they are posing a risk to
humans, the environment, and themselves. They cause an estimated $100 million in total
agriculture loss in the United States each year.2 The over-population of deer can lead to
the spread of disease between animals and humans.3 Several different solutions to fixing
this problem have been offered but only one of them—hunting—has proven successful.
But hunting presents a few problems of its own. Hunters typically use lead bullets to kill

Student, South Dakota School of Law, J.D. expected December 2009. This article is based on
the respect I have for the outdoors. I support every person’s legal right to use land for their own
pleasure. The forests and woods should be enjoyed equally by everyone.
1
Ronald Bailey, North America’s Most Dangerous Mammal: How best to deal with the menace
of Bambi, Nov. 21, 2001, http://www.reason.com/news/show/34914.html.
2
Kurt VerCauteren, Michael Pipas, Phillip Peterson and Scott Beckerman, From the Field:
Stored Crop Loss Due to Deer Consumption, Wildlife Society Bulletin, Vol. 31, No. 2 (2003)
available at http://www.jstor.org/stable/3784342.
3
Deer Hunter Almanac 2009, (F + W Publications 2008).
1
game animals that are subsequently eaten by other animals or humans. Studies have
shown that ingesting lead can cause serious health problems. Hunting also causes safety
concerns for hikers, outdoorsmen, and outdoorswomen that share wooded areas with
hunters. Overall, the financial gain that hunting provides to the economy cannot be
denied. A number of states—like South Dakota—get their livelihood from the hunting
industry. But this livelihood is at risk because powerful organizations such as the
Humane Society of the United States and Defenders of Wildlife are trying to “federalize”
wildlife management.
This Article describes the different arguments that each of these organizations
formulate. Part II describes the history of wildlife management. Part III addresses how
the white-tailed deer population has drastically increased. Part IV describes the effects of
hunting on the environment; specifically crops and plants, disease, and the lead in bullets.
Part V discusses the effects of hunting on the economy; specifically the financial impact
and the land use rights of hunters and hikers. Part VI discusses hunting opponent’s
arguments and their unsuccessful attempts to “federalize” wildlife management.
II. History of Wildlife Management and Hunting
In the early 1900’s the wildlife population in the United States started to vanish
due to overhunting. The white-tail deer population had fallen between 300,000 and
500,000.4 This caused citizen conservationists to gather and enact laws that would to stop
the current problem of overhunting. These conservationists set strict standards that
minimized hunting opportunities. Between 1920-1930 Aldo Leopold5 and others such as
4
Bailey, supra note 1.
Leopold was trained in scientific forestry. He wrote the first textbook on wildlife management
called Game Management in 1933. He was also granted the first university professorship in
wildlife management at the University of Wisconsin.
5
2
Theodore Roosevelt6 sought to get rid of these restrictive policies by establishing
agencies that would be responsible for controlling wildlife.7 Leopold defined wildlife
management as “the art of making the land produce sustained annual crops of wild game
for recreational use.”8 Leopold’s efforts successfully changed wildlife management
forever.
Wildlife management is the process of keeping specific wildlife populations at
desirable levels determined by wildlife managers.9 A desirable level is the number of
animals a habitat can support.10 These desirable levels are also referred to as the land’s
“carrying capacity”. There are two types of carrying capacities; biological and cultural.
Biological carrying capacity measures the number of deer an area can support with
adequate food and cover.11 Cultural carrying capacity measures how many deer an area
can support without causing a substantial negative impact on humans.12 Wildlife
managers essentially try to keep the wildlife population at a safe carrying capacity so that
there is no harm done to plants, humans, and other animals.
Different techniques are used to determine the deer density in an area. Game
range surveys are conducted by wildlife managers through inspection of plants that deer
browse or eat.13 Deer droppings are also counted and marked in a specified area.14
6
The twenty-sixth President of the United States of America.
Arthur H. Richardson & Lyle E. Peterson, History and Management of South Dakota Deer 2,
South Dakota Department of Game, Fish, and Parks Pierre, South Dakota, (1974).
8
Id. at 4.
9
NationMaster.com, Encyclopedia - Wildlife Management,
http://www.nationmaster.com/encyclopedia/Wildlife-management (last visited Nov. 14, 2008).
10
Mindy Larsen Poldberg, Deer Management: A Comprehensive Analysis of Iowa State Hunting
Laws and Regulations, 3 Drake J. Agric. L. 279, 285 (1998).
11
Id.
12
Id.
13
Richardson & Petersen, supra note 7, at 14.
14
Id.
7
3
Further, wildlife managers will spot light corn fields or other popular feeding areas at
night to determine the deer density15
Several different agencies, as well as individuals, are responsible for managing
wildlife. The most prevalent state agency is the game, fish, and parks. Every state has a
game, fish, and parks of some sort that manages the states wildlife.16 For example, the
South Dakota Game, Fish, and Parks manages the wildlife populations by setting the
length of hunting seasons and by determining the number of licenses that will be sold
each year.
Federal agencies, such as the United States Fish and Wildlife Service, help control
wildlife populations on federal land within states.17 But, most importantly, the U.S. Fish
and Wildlife Service protect wildlife through the Endangered Species Act and the
Migratory Bird Treaty Act.18 The Endangered Species Act allows the federal government
to protect animal and plant species that are “endangered” or “threatened”.19 The
Migratory Bird Treaty Act makes it unlawful to pursue, hunt, take, capture, kill or sell
birds listed within the statute.20 It is sufficient for the federal government to enforce
migratory bird laws because these types of birds fly through several jurisdictions every
year when they are migrating. This makes it difficult for each state to protect these
animals because each state has its own laws unique to the state. Private land-owners and
hunters have also been credited for wildlife management. Most of state agencies funding
15
Interview with Ron Schauer, Regional Program Manager, South Dakota Game, Fish, and Parks,
Sioux Falls, S.D. (Oct. 17, 2008).
16
Each state has a different name for the agency.
17
Ruth S. Musgrave & Marry Anne Stein, State Wildlife Laws Handbook 7(Government
Institutes Inc. 1993).
18
Id. at 10.
19
Id.
20
Id.
4
comes from hunters through the Wildlife Restoration Act, also known as the PittmanRoberson Act.21 In 1937 Congress passed this act; it requires anyone who purchases a
firearm or ammunition to pay a tax.
Hunting proponents say that hunting helps manage wildlife by controlling the
deer population. In contrast, opponents of hunting say that hunting only causes the deer
population to fall below normal levels. Either way, hunting plays a major role in wildlife
management.
III. Deer Overpopulation
People have expanded their territory through housing developments and cities.
This expansion deprives deer of their natural environment. Further, the white-tailed deer
population has increased significantly since the early 1900’s. Some communities are
feeling the effects of this drastic increase. One community, located thirty miles north of
Boston, had all their green foliage eaten by roughly 400 white-tailed deer.22 This property
consisted of 2,000 acres and was supposed to be a wildlife refuge.23 The trustees that ran
the refuge banned hunting on the property until they realized that hunting was the only
way to save their remaining wildlife from starvation.24 The trustees scheduled a public
hunt, but the hunt was quickly shut down by an animal-rights group that vowed to “throw
themselves between the deer and the guns.”25 The overpopulation resulted in Lyme
disease26 infection of two-thirds of the people whose land bordered the refuge.27 A few
21
Id.
Ted Williams, Wanted: More Hunters, Audubon Incite, available at
http://audubonmagazine.org/incite/incite0203.html (March 2002).
23
Id.
24
Id.
25
Id.
26
Domestic animals can also carry ticks that cause Lyme disease (CDC Wonder, Lyme Disease,
http://wonder.cdc.gov/wonder/prevguid/p0000380/p0000380.asp last visited Nov. 17, 2008).
22
5
years later, the trustees were finally able to put on a public hunt, and now Lyme disease is
down and the refuge is no longer over-populated with white-tailed deer.28
Some states have even lifted Sunday hunting bans in areas where the deer
population is becoming a nuisance.29 Maryland and Connecticut are among those states.
An article in USA Today states that “Maryland legislators have opened a few Sundays to
deer hunting in some counties as a way to control the state’s deer population.”30
There are only two ways to control deer overpopulation; death or birth. Hunting is
only one way to control population by death. Some communities, usually the more urban
ones, hire sharpshooters to shoot the deer. There is even a company called White Buffalo
Inc. that determines the carrying capacity of an over-populated area then has employees
that shoot deer in the head with rifles.31 White Buffalo Inc. then donates the meat to the
food banks.32 This controlling technique attracts much criticism from animal-rights
activists. But these activists do not contribute any alternative successful substitute.
Controlling populations through birth is more popular with animal-rights activists
than hunting and sharpshooting. The Humane Society of the United States has
participated in shooting does33 with darts that contain a vaccine that will make the doe
infertile during the breeding season.34 This method has proven to be successful in some
communities, but these are usually wealthy communities because the vaccine can cost up
27
Williams, supra note 22.
Id.
29
Mike Balestra, Thou Shall Not Hunt: A Historical Introduction to and Discussion of the
Modern Debate Over Sunday Hunting Laws, 96 Ky. L.J. 447, 459, (2007-2008).
30
Emily Bazar, States Consider Lifting Sunday Hunting Ban, USA Today, Oct. 2, 2006, at 15A.
31
Williams, supra note 22.
32
Id.
33
A doe is a female deer.
34
Matthew Schuerman, Birth Control for Deer?, Audubon Incite, available at
http://audubonmagazine.org/webstories/deer_birth_control.html (Feb. 2002).
28
6
to $1,000 per doe.35 And, the vaccine-filled darts are not guaranteed to penetrate the doe
every time they are shot, which means that a $1,000 dart can be wasted.36 As of now,
these darts only make the doe infertile for one mating season; this is a concern because
each year these expensive darts must be shot into several hundred thousand does in order
to remain effective. A vaccine that can possibly last a deer’s lifetime is currently being
tested by a Virginia biologist, and could bring down the cost of “deer birth control”
significantly.37 But the birth control vaccine does not solve current population problem, it
only reduces the number of young deer born each year. If the deer population in an area is
already over carrying capacity, eliminating a certain number of deer is the only solution.
Deer reproduce faster than any other mammal in the United States.38 Ron
Schauer39, the Regional Program Manager of the South Dakota Game, Fish, and Parks in
the south eastern part of the state said that does out number bucks40 in South Dakota
about eight to one.41 This doesn’t help the overpopulation problem because common
sense will tell you that more does equal more fawns. One buck will breed several does
during a mating season.42 White-tailed does, on average have two fawns, but occasionally
triplets and singles are born.43 Studies show that a single breeding pair of deer can
produce forty deer in a seven-year span.44
35
Id.
Williams, supra note 22.
37
Anne Broache, Oh Deer!, Smithsonian Magazine, Oct. 2005, available at
http://www.smithsonianmag.com/science-nature/Oh_Deer.html?c=y&page=1.
38
Richardson & Petersen, supra note 7, at 3.
39
Interview with Schauer, supra note 15.
40
A buck is a male deer.
41
Interview with Schauer, supra note 15.
42
Richardson & Petersen, supra note 7, at 20.
43
Richardson & Petersen, supra note 7, at 25.
44
Id.
36
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IV. Effects of Hunting on the Environment
Hunting has both positive effects and negative effects on the environment. One of
hunting’s most positive effects is lowering the deer population, which in turn lowers the
crop and plant destruction that is caused by deer.45 A lower population equals a lower
number of deer infected with diseases such as Lyme disease and Chronic Wasting
Disease. But hunting can also have negative environmental impacts such as distributing
lead from bullets into trees and soil. Lead can also cause health problems for animals and
humans that ingest game meat that was shot with a lead based bullet.
A. Crops, Plants, and Wildlife
Deer cause an estimated loss of $100 million annually in agricultural production
in the United States.46 The United States Department of Agriculture estimates that more
than half of the farmers in the United States experience crop damage from animals.47
Crop destruction of this magnitude can have a substantial impact on agriculturally driven
states such as South Dakota. Schauer said that area farmers lose crops to this type of
destruction every year. “The worst I ever dealt with was one large field in Yankton, S.D.
with forty acres of destruction.” Shauer went on to say that the majority of cases he deals
with are ten acres or less of crop loss. Crop destruction is such a problem in South Dakota
that corn is not raised in some parts of the Black Hills foothills.48
South Dakota has taken several steps to fix the crop destruction problems that
white-tailed deer are causing. First, the Legislature enacted South Dakota Codified Laws
section 41-6-29. This section allows the secretary of the game, fish, and parks to
45
Farmers will be forced to charge more for their crops if there is continued damage (Interview
with Rob Konrad, South Dakota farmer (Nov. 3, 2008).
46
VerCauteren Et Al., supra note 2.
47
Poldberg, supra note 10, at 280.
48
Richardson & Petersen, supra note 7, at 33.
8
authorize permits to kill game animals, such as deer, that are damaging property.49
Second, the Legislature enacted South Dakota Codified Laws section 41-6-29.1. This
section adds to South Dakota Codified Laws section 41-6-29 by providing the Game,
Fish, and Parks Commission the authority to distribute depredation permits.50 The
depredation permit authorizes the permit holder to kill game animals—such as deer—that
are causing damage to property.51 The secretary of the game, fish, and parks determines
the number of game animals that can be killed under each depredation permit and the
commission must establish how many permits can be issued.52
Ron Schauer said that if the Game, Fish, and Parks is still getting complaints from
landowners and farmers, South Dakota will choose hunters names from the depredation
pool. These hunters will be allowed to kill the number of game animals that the secretary
determines is sufficient to control the population. Schauer went on to say that this year’s
depredation pool could be used earlier than ever before because snow is projected to fall
before all the corn is harvested.53 This will cause white-tailed deer to congregate in the
corn, and cause significant damage.54
Third, the South Dakota Legislature enacted a hunter mentoring program through
section 41-6-81 of the South Dakota Codified Laws.55 Schauer expressed that this section
was enacted with the thought that it would encourage younger people to hunt.56 He said
49
S.D. Codified Laws § 41-6-29 (2008).
S.D. Codified Laws § 41-6-29.1 (2008).
51
Id.
52
Id.
53
Interview with Schauer, supra note 15.
54
Id.
55
S.D. Codified Laws § 41-6-81 (2008).
56
Interview with Schauer, supra note 15.
50
9
that young hunters are the key to controlling the deer population in the future.57 This
section allows residents of South Dakota that are at least ten and less than sixteen-yearsold to hunt without a hunting license if they are accompanied by a hunting mentor.58 The
hunting mentor must be a resident of South Dakota, must have successfully completed a
hunter safety course, and must have a valid hunting license for the particular game animal
that is being hunted.59 These South Dakota statutes have helped lower the white-tailed
deer population. Hunters in the southeastern part of the state have harvested more does
than bucks the last three years.60 But the population is still higher than the Game, Fish,
and Parks would like it to be.61
Just across the Missouri River, in Nebraska, a famer experienced the effects that
the overpopulation of white-tailed deer can cause when he lost seven of his fourteen acre
corn field to deer.62 The Nebraska Game, Fish, and Parks estimate that the deer caused
$4,000 to $5,000 in crop damage to this field alone.63 The farmer said that eighteen does
were shot on this land the previous season but he could not tell a difference in crop
damage.64 The Nebraska Game, Fish, and Parks said that they would like to see a deer
population of five deer per square mile, but this is very difficult to maintain.65 Overall,
controlling deer overpopulation will help the economy because fewer deer equals less
crop damage. Less crop damage leads to cheaper crops, which will ultimately result in
57
Id.
S.D. Codified Laws, supra note 55.
59
Id.
60
Interview with Schauer, supra note 15.
61
Interview with Schauer, supra note 15.
62
Linda Wuebben, P&D Correspondent, Nebraska Hunters Take Advantage of Special Deer Kill
Permit, Yankton Press & Dakotan, Oct. 5, 2008 available at
http://yankton.net/articles/2008/10/08/outdoors/doc48e9726f9f7c4832436059.txt.
63
Id.
64
Id.
65
Id.
58
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cheaper food. Further, farmers depend on crops for a living, and some cannot afford to
have them damaged by deer.
Crops are not the only things that deer can damage; various plant species are
frequently ruined by deer each year. As the populations rise between twenty to twentyfive deer per square mile, tree species such as pines, white cedar, hemlock, and oaks
become less prevalent.66 Bucks ruin small trees—worth a couple hundred dollars—by
rubbing their antlers on them in an attempt to clean the velvet off in early fall.67 Overall,
the total damage done to plants is estimated at $251 million dollars68 per year.69
Other wildlife species can suffer from deer over population. The United States
Forest Service conducted a ten-year study that showed that at more than twenty deer per
square mile, the following birds can be lost: eastern wood pewees, indigo buntings, least
flycatchers, yellow-billed cuckoos, and cerulean warblers.70 And, at thirty-eight deer per
square mile eastern phoebes, robins, ovenbirds, grouse, woodcock, and wild turkeys can
be lost.71
The Humane Society of the United States argues that there are safer ways, other
than hunting, to protect crops and plants from wildlife.72 It lists fences, repellants, and
66
Deer Hunter Almanac, supra note 3, at 51.
John Hadidian, Dir. of Urban Wildlife Protection for the Humane Society of the United States,
The Increasing Conflicts of Deer and Human Populations in Suburban Areas, Buffalo
Environmental Law Journal Symposium (Mar. 28, 1998), in 5 Buff. Envtl. L.J. 354, 369.
68
This includes fruits and vegetables.
69
Paul D. Curtis, Encyclopedia of Pest Management 187, (David Pimentel ed., Marcel Dekker
Inc. 2001).
70
Williams, supra note 22.
71
Id.
72
The Humane Society of the United States, Humanely Reducing Agricultural Wildlife Damage,
http://www.hsus.org/wildlife/issues_facing_wildlife/humanely_reducing_agricultural_damage_by
_wildlife/humanely_reducing_agricultural_wildlife_damage_deer.html (last visited Nov. 14,
2008).
67
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scare devices as possibilities.73 These three things are either not effective or not practical
for several reasons. First, fences have been used by landowners and farmers to protect
crops and plants from livestock. But to keep deer out, the fence needs to be eight feet
high74; this type of fencing can be extremely expensive.75 The high price of actual “deer
fence” doesn’t compare to the low costs of barbwire.76 Second, repellants and scare
devices are only temporary. Although the Humane Society of the United States
acknowledges that repellants such as soap and domestic cat waste are only temporary, it
fails to list any cheap, permanent alternatives. It does say “other repellants can be
purchased from commercial suppliers.”77 But, commercial repellants are not cheap and
are labor-intensive to apply.78
Overall, hunting provides the best way to control the white-tailed deer population.
Overpopulation can be dangerous for both humans and animals. Wisconsin requires each
hunter shoot a doe before a buck.79 This has helped lower the doe population, which
lowers the total deer population. Every state that is experiencing deer overpopulation
should implement the one doe for one buck requirement for at least a year or two. This
would significantly help the overpopulation problem. Another way to control the deer
population by hunting is to give discounted doe tags. Many hunters want to shoot two or
three does for the meat, but do not want to spend the money on the licenses. Similarly,
73
Id.
Poldberg, supra note 10, at 285.
75
DeerFence.com, Deer Fence Cost Estimator, http://www.deerfence.com/costestimator.html
(last visited Nov. 14, 2008).
76
Barbwire is generally used to keep livestock out of agriculture fields (Interview with Konrad,
supra note 45).
77
The Humane Society of the United States, supra note 72.
78
Ken Konsis, Deer Repellent Study, http://www.walnutcouncil.org/deer_repellent_study.htm
(last visited Nov. 14, 2008).
79
Deer Hunter Almanac, supra note 3, at 7.
74
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hunters will often want to harvest a second deer but not have a need for the meat. Free
butcher shops would allow a hunter to drop off a deer, have it butchered and delivered to
a food bank for free. If the deer population still remains high, tax credits could be
distributed to hunters who harvest the legal maximum amount of deer.
B. Disease
Different diseases are also a concern for both animals and humans. The
overpopulation of deer causes disease to spread because the deer are in a more condensed
area, making physical contact much more likely. The most prevalent disease affecting
South Dakota deer is Epizzotic Hemorrhagic disease (EHD).80 It comes from a virus
carried by gnats or midges that transmit the disease when the deer are congregating
around a water hole.81 The gnats transmit the disease by biting deer consecutively, thus
carrying blood from one deer to another.82 An infected deer’s tongue swells and its
organs hemorrhage.83 Infected deer are weak and appear disoriented.84 If deer die from
the virus, it usually happens within twenty-four to seventy-six hours after the first
symptom.85 During severe outbreaks, EHD can significantly lower the deer populations.
In 1952, sixty percent of South Dakota’s West River white-tailed deer died.86 More
recently, in 1976 the disease wiped out thirty to forty percent of Nebraska’s deer
population.87
80
Richardson & Petersen, supra note 7, at 37.
Id.
82
Deer Hunter Almanac, supra note 3, at 5.
83
Id.
84
Washington Department of Fish and Wildlife, Fact Sheet, http://wdfw.wa.gov/factshts/ehd.htm
(last visited Nov. 14, 2008).
85
Richardson & Petersen, supra note 7, at 37.
86
Id.
87
Deer Hunter Almanac, supra note 3, at 6.
81
13
Chronic wasting disease (CWD) is probably the most widely known disease.
Chronic Wasting Disease is a brain disease that is believed to be caused by prion protein
found in elk and deer.88 It is not known how the disease spreads but most scientists
believe that it is a result of animal-to-animal contact.89 Deer infected with CWD
experience weight loss, loss of muscle control, behavioral changes, increased drinking
and urination, and depression.90 Chronic Wasting Disease is always fatal for the infected
deer.91 It is not believed that CWD can be transmitted to humans.92 Eleven years of
testing and surveillance only showed fifty-four cases of CWD infected deer in South
Dakota. But CWD is still a major concern for state and federal wildlife agencies
throughout the United States.93
Most communities are more worried about Lyme disease because studies show
that it can be transmitted from deer94 to humans.95 Studies have shown that when the deer
population increases, the number of Lyme disease infections increase.96 Lyme disease
starts with web-footed mice97 which cause a bacterial infection that is then carried in a
tick’s stomach.98 Infection is spread through deer ticks that first feed on an infected deer,
88
South Dakota Game, Fish, and Parks, Chronic Wasting Disease Facts,
http://www.sdgfp.info/Wildlife/hunting/BigGame/CWDfacts.htm (last visited Nov. 14, 2008).
89
Id.
90
Id.
91
Id.
92
Deer Hunter Almanac, supra note 3, at 11.
93
Ronald W. Opsahl, Commentary, Chronic Wasting Disease of Deer and Elk: A Call for
National Management, 33 Envtl. L. 1059 (2003).
94
Mice also carry Lyme disease (EcoHealth, Environmental Change and Our Health,
http://www.ecohealth101.org/unbalancing/health/lyme.html last visited Nov. 13, 2008).
95
S.D. Department of Health, Lyme Disease, http://doh.sd.gov/DiseaseFacts/Lyme.aspx (last
visited Nov. 17, 2008).
96
Christopher E. Rice, Success Runs Wild: Pennsylvania Game Commission and Balancing
Between Management and Survival of an Overpopulated Deer Heard that Poses a Potential
Threat, 11 Penn. St. Envtl. Rev. 153 at 169 (2002).
97
Hadidian, supra note 67 at 365.
98
S.D. Department of Health, supra note 95.
14
than a human.99 If the disease goes untreated in a human, problems such as meningitis or
heart abnormalities can occur.100 The deer tick that is known to carry the bacteria has
been found in five eastern South Dakota counties thus far.101
C. Lead in Bullets
Hunting can also have a negative effect on the environment through the lead
bullets that are frequently used by hunters and sport shooters. Most of the research has
been done on outdoor shooting ranges but it exceeds the scope of this paper. At shooting
ranges—where thousands of bullets are shot each day—lead poses a threat by getting into
the soil.102 Hunting with lead based bullets creates a threat to trees, animals, and humans.
Trees are not significantly threatened because only small amounts of lead if any, is
deposited into them via hunting. But, when trees are harvested in a heavily hunted area,
they could be contaminated with lead.103
Animals and humans are affected most by lead-based bullets. In 1998, South
Dakota started requiring nontoxic shot for small-game hunting and shotgun target
shooting on most public land.104 Further, nontoxic shot is required when hunting in
ditches that are adjacent to public land.105 Pheasant hunting is South Dakota’s hunting
identity, and is frequently conducted on or near wetland areas. The result is the deposit of
99
Deer Hunter Almanac, supra note 3, at 17.
S.D. Department of Health, supra note 95.
101
Id.
102
ACFNEWSSOURCE, Green Bullets, The Osgood File,
http://www.acfnewsource.org/environment/green_bullets.html (last visited Nov. 17, 2008).
103
Science Daily, Do Lead Bullets Continue to be a Hazard After They Land?,
http://www.sciencedaily.com/releases/2004/11/041104005801.htm (last visited Nov. 17, 2008).
104
S.D. Game, Fish, and Parks, Nontoxic Shot for Upland Birds Brochure (2008).
105
S.D. Game, Fish, and Parks, Nontoxic Shot for Small Game Hunting,
http://www.sdgfp.info/Wildlife/hunting/Info/nontoxic.htm (last visited Nov. 17, 2008).
100
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lead shot in the wetland water.106 This becomes a problem107 for ducks, geese, and swans
that feed in these areas.108 Bottom feeding animals can ingest this lead shot. Wetlands
often dry up, which exposes the lead shot to all animals in the area.109 Further, wildlife
food plots are planted on State Game Production Areas (GPA’s).110 Waterfowl and
upland birds go to these areas to feed, which in turn draws hunters to these areas. Hunters
deposit shot on the ground. The birds then ingest the shot when feeding at the GPA’s.111
South Dakota doesn’t ban lead shot on private lands because the hunting pressure on
private lands is minimal compared to public lands.
Some studies show that lead shot also affects scavenging birds such as condors,
hawks, and eagles.112 U.S. Geological Survey experts, Barnett Rattner and Chris Franson
said that direct ingestion and consumption of prey containing lead shot is the most
significant hazard to these birds.113 For this reason, in 2008, California Legislature put
restrictions on lead shot in certain areas because condors are becoming instinct.114
California’s restriction was backed up through research done by Donald Smith of the
University of California, Santa Cruz.115 Smith’s study showed that the lead found in
condor’s blood most likely comes from ammunition.116 Other studies have concluded that
106
S.D. Game, Fish, and Parks, supra note 104.
The shot collects together and falls into the water when the ice melts.
108
S.D. Game, Fish, and Parks, supra note 104.
109
Id.
110
Id.
111
Id.
112
Science Daily, supra note 103.
113
Id.
114
Rocky Barker, Study: Lead Bullets Taint Game Meat, Idaho Statesman, May 15, 2008
available at http://www.idahostatesman.com/localnews/story/380671.html.
115
Peter Aldhous, Lead in Bullets Threatens Recovery of Condor, New Scientist, Magazine Issue
2593, (Feb. 28, 2007).
116
Id.
107
16
the lead comes from gut piles of animals shot by hunters.117 Arizona hunters have reacted
by voluntarily using nontoxic shot in areas where condors118 are found or by removing
gut piles from the area.119
Lead is also hazardous to humans that eat game meat. Several studies have found
traces of lead fragments in game meat shot by lead-based bullets. Most recently, the
Peregrine Fund and Washington State University found that people might be ingesting
lead when eating game meat from an animal killed with lead bullets.120 Lead bullets
fragment more when they hit a deer than when a lead pellet hits a pheasant.121 Ingesting
this lead is dangerous to humans because it can cause an increase in heart attack and
stroke in adults and brain damage in children.122 Most importantly, children under the age
of six are at a more significant risk because their brains are not fully developed.123
North Dakota health officials recently ordered food banks to pull game meat
donated by hunters after some of the meat was found to have lead fragments in it.124 Over
4,000 pounds of game meat was thrown away.125 Some groups believe that these actions
were premature due to lack of sound science.126 Taylor Gross, a spokesman for Safari
Club International said that the Peregrine Fund has an agenda because it is an advocacy
group.127 Regardless, North Dakota is not the only state that has found these negative
117
Barker, supra note 114.
Condor deaths have dropped from 4 in 2006 to 0 in 2007 (Id.).
119
Id.
120
Id.
121
S.D. Game, Fish, and Parks, supra note 104.
122
Barker, supra note 114.
123
S.D. Game, Fish, and Parks, supra note 104.
124
FOX News, North Dakota Charity Program to Accept Only Archery Killed Venison,
http://www.foxnews.com/story/0,2933,446984,00.html (last visited Nov. 17, 2008).
125
Id.
126
Barker, supra note 114.
127
Id.
118
17
results. Wyoming found lead fragments ranging in size from dust to a sesame seed.128
After these results came out Gross said, “[i]f true sound science indicates adjustments
need to be made, then the Safari Club will support those adjustments.”129
Most hunters use lead bullets because they are much cheaper than nontoxic
bullets. This lead problem could easily be fixed in one of two different ways. First, states
can enact statutes that ban lead based bullets. This might cause hunters and ammunition
manufactures to bring unwanted litigation but the state could make an environmental
safety argument. A statute banning lead bullets is not unfair to hunters because there are
copper and steel substitutes. If banning lead bullets brings too much opposition then
government subsidies could be given to all hunters that purchase nontoxic bullets. Stores
that sell ammunition could handout government mail-in-rebates to nontoxic bullet
purchasers. This would save the purchaser money and create an incentive for buying
nontoxic bullets.
IV. Effects of Hunting on the Economy
Hunting helps the United States economy financially by producing jobs. Further,
killing deer lowers the population, which lowers the number of auto accidents. Fewer
auto accidents results in fewer insurance claims. But hunting also creates safety risks and
land use right problems.
A. Financial
Hunting has a direct impact on the economy. It generates more than $67 billion in
economic output in the United States each year; it also creates over 1 million jobs.130 On
128
Id.
Id.
130
South Dakota Game, Fish, and Parks, Information on the Economic Importance of Hunting,
http://www.sdgfp.info/Wildlife/Economics/EconomicsIndex.htm (last visited Nov. 17, 2008).
129
18
average, each hunter spends $1,896 per year on hunting.131 The importance of these
statistics cannot be denied. The United States economy needs hunting; it cannot afford to
lose 1 million jobs. But states like South Dakota rely on hunting to help their economy
even more. In 2004, South Dakota made $275 million on hunting expenditures alone.132
Pheasant hunting is a main source of state income; it had an estimated impact of $135
million in 2004.133
Hunting also has an indirect-financial effect on the economy. As stated earlier,
hunting helps lower the population of deer; deer are responsible for over 1.5 million134
car accidents135 each year.136 And these accidents result in $1 billion in vehicle damage
and kill around 130137 people each year.138 Auto accidents that involve deer are common
throughout the United States. Pennsylvania is typically the worst state for these accidents.
Drivers in Pennsylvania kill over 45,000 deer each year, causing $80 million worth of
damages.139 South Dakota usually ranks in the top ten; the Rapid City Journal had South
Dakota listed as the sixth most likely place to hit a deer with an automobile.140 At the
South Dakota Office of Highway Safety’s 2008 Transportation Safety Conference, Art
Smith gave a presentation that showed twenty-five percent of all auto accidents from
131
Id.
Id.
133
Id.
134
Experts indicate that the number of accidents is actually much higher than reported because
drivers tend to report an automobile-deer accident only if a person is hurt (Jim Robbins, infra
note 135).
135
Jim Robbins, As Cars Hit More Animals on Roads, Toll Rises, N.Y. Times, Dec. 22, 2007,
available at http://www.nytimes.com/2007/12/22/us/22crash.html?_r=1&oref=slogin.
136
Deer Accident Statistics, http://www.car-accidents.com/pages/deer-accident-statistics.html
(last visited Nov. 17, 2008).
137
Robbins, supra note 135.
138
Deer Accident Statistics, supra note 136.
139
Rice, supra note 96 at 165.
140
Watch Out for Deer, They’re Coming Right For Us, Rapid City Journal, Oct. 09, 2008
available at,
http://www.rapidcityjournal.com/articles/2008/10/09/news/top/doc48eedc64729bb854473977.txt.
132
19
1999 to 2004 in South Dakota were caused by hitting a wild animal and deer caused
ninety-five percent of these accidents.141
There are alternative ways, other than hunting to help lower the probability of
crashing into a deer with a car. Banff National Park in Alberta, Canada built twenty-four
underpasses and overpasses on roads throughout the park.142 This resulted in eighty
percent less auto accidents.143 If these wildlife crossings were as effective in the United
States as they were in Canada, more than $80 million would be saved each year. These
wildlife crossings would cost millions—if not billions—of dollars to construct throughout
the United States. But, this cost would be offset within one or two years. Not to mention
that they would save hundreds of American lives each year. Some states have tried
putting collars on deer that flash when they get to close to highways and roads.144 These
collars are only effective for a small population of deer because it is not feasible to put
one on every deer in the United States.
B. Land Use Rights
The Humane Society of the United States is not the only group that feuds with
hunters; hikers, campers, and bicyclists do to. Occasionally, a hiker comes across a
hunter while walking through the woods. Sharing this space can be dangerous because
hunters are on the lookout for animals that are also walking through the woods. This is
not as big of a problem in South Dakota because most of the woods are privately owned.
But it is a problem that deserves attention on both the East and West coasts where the
majority of hunting is done on public ground. But, who has a right to use this public
141
Interview with Schauer, supra note 15.
Robbins, supra note 135.
143
Id.
144
Id.
142
20
ground, hunters or non-hunters? Most people will say that both groups need to share
public land with each other, but some say that sharing will cause safety problems.
In August 2008, a hiker was accidently shot and killed by a fourteen year-old
hunter on Sauk Mountain in Washington.145 The young boy thought that the hiker was a
bear.146 People throughout the nation were upset because the fourteen-year-old hunter and
was only accompanied by a sixteen-year-old.147 Although it hasn’t been illegal for a
fourteen-year-old to hunt without adult supervision in Washington since 1994, it is in
several other states.148 This was the first non-hunter killed by a hunter in Washington in
more than twenty-five years.149 Non-hunter shootings are very rare throughout the United
States. There were forty-two accidental hunting deaths nationally in 2005.150 And only a
few of these involved a non-hunter.151
In section 41-6-13 of the South Dakota Codified Laws “[a] resident hunting
license may be issued only to a resident sixteen years of age or older.”152 This statute is
typical throughout the United States. Most states allow a person under the age of sixteen
to hunt only with adult supervision. South Dakota Codified Laws section 41-6-13 takes
this prerequisite one step further by requiring the parent or guardian to apply for the
145
Andrew Engelson, Hiker Killed by Hunter on Sauk Mountain, Washington Trails Association,
Aug. 04, 2008, available at http://www.wta.org/trail-news/signpost/hiker-killed-by-hunter-onsauk-mountain.
146
Id.
147
Id.
148
Life on MSNBC, Hiker’s Death Prompts Calls To Raise Hunting Age,
http://www.msnbc.msn.com/id/26171830/ (last visited Nov. 18, 2008).
149
Id.
150
Id.
151
Id.
152
S.D. Codified Laws § 41-6-13 (2008).
21
minor’s license if the minor is under the age of sixteen.153 If every state had a statute like
this there would be fewer hunting accidents each year.
California requires every hunter to pass a ten-hour safety course before being
granted a license.154 According to Joe Gonzales, the hunter education coordinator for the
California Department of Fish and Game, a hunter has never injured a non-hunter in
California.155 Further, section 41-7-1 of the South Dakota Codified Laws states that a
hunter under the age of sixteen is required to take a safety course.156 A violation of this
statute is a Class two misdemeanor.157 Every state should enact a statute that makes all
new hunters take a safety course, much like California and South Dakota. This would be
an easy law to enforce by simply requiring every hunter born after a certain date to
present a hunter safety certificate before being granted a hunting license.
Safety is only an issue where hunters and non-hunters are sharing the same space.
State parks are a popular hiking, biking, and camping destination. The majority of state
parks do not allow hunting. According to Jennifer Wernex, the communications manager
for the Idaho Department of Parks and Recreation, out of the thirty state parks in Idaho
only six allow hunting within the parks boundaries.158 And when the park does allow
hunting, it is only in certain areas.159 States need to do their best to separate hunters from
non-hunters. One way this problem can be fixed is to make some of the more popular
hiking and biking trails and camp sites off-limits to hunting and some of the more
153
Id.
Julie Sheer, Hikers, Dodge That Bullet, L.A. Times, Oct. 07, 2008, at F 10.
155
Id.
156
S.D. Codified Laws § 41-7-1 (2008).
157
Id.
158
Natalie Bartley, Hikers and Campers Can Coexist with Hunters, Idaho Statesman, Aug. 28,
2008, available at http://www.idahostatesman.com/1406/story/485321.html.
159
Id.
154
22
popular hunting areas off-limits to non-hunters, at least during hunting seasons. Labeling
areas as “hikers only” or “hunters only” will cause some people to be upset, but it will be
for the safety of all outdoorsmen and outdoorswomen.
In order to share wooded areas, hunters and non-hunters will both need to make
sacrifices. States could enact statutes that require all non-hunters to wear fluorescent
orange when in the woods, similar to the orange South Dakota Codified Laws section 418-41requires hunters to wear. This section makes it a Class two misdemeanor if a hunter
neglects to wear a fluorescent orange exterior garment above the waist such as a hat, cap,
shirt, jacket, vest, coverall, or poncho.160 If hunters are required to wear fluorescent
orange for safety while in the woods, non-hunters that are using the woods should also.
Hunters and non-hunters will probably have to continue to share wooded spaces
for recreational use. Unfortunately, many hunter friendly states—like South Dakota—
favor hunters because hunting funds the restoration and protection of thousands of acres
of wooded areas for recreational use. Since the Wildlife Restoration Act of 1937, hunters
have contributed billions of dollars to the preservation of these areas.161 But, the sharing
of land between hunters and non-hunters will continue to be a problem, especially in
coastal states where non-hunting tourism is a major source of funding for the preservation
of wooded land. Overall, non-hunters should not have to feel uncomfortable while
enjoying themselves in the woods; but, the only way to ensure safety is to separate
hunters and non-hunters completely.
160
S.D. Codified Laws § 41-8-41 (2008).
Dave Anderson, In the Woods: Don’t Fear Hunting Season, Forest Society, available at
http://www.forestsociety.org/news/forest-journal.asp?id=23.
161
23
VII. “Federalizing” Wildlife Management
Should the federal government or the states control the management of wildlife?
Right now, the states make and enforce their own wildlife management regulations
through their “police power” granted to them through the United States Constitution. The
United States Supreme Court recognized that states have a local interest to protect wild
animals by stating that “[w]ild game is vested in the State as trustee for all its citizens
with full power and authority in the State to regulate and protect.”162 The federal
government only intervenes with state wildlife issues when it involves endangered or
migratory species. But still, anti-hunting interests groups try to “federalize” wildlife
management. If they are successful, federal actions would slowly minimize the states
authority to protect and manage wildlife within its own borders. States that rely on
hunting—like South Dakota—need to stick together and fight against the federalization
of wildlife management.
The courts play a significant role in controlling the decisions of state agencies.163
“A person suffering a legal wrong because of agency action, or adversely affected or
aggrieved by agency action with the meaning of a relevant statute, is entitled to judicial
review thereof.”164 Further, courts can restrict agency action found to be arbitrary and
capricious, an abuse of discretion, not in accordance with law, contrary to constitutional
right, power, privilege, or immunity, and in excess of statutory jurisdiction, authority, or
limitations.165
162
Hughes v. Oklahoma, 441 U.S. 322, 325, 334-35 (1979).
Holly Doremus, Albert C. Lin, Ronald H. Rosenberg, & Thomas J. Schoenbaum,
Environmental Policy Law: Problems, Cases, and Readings 95 (5th ed. 2008).
164
Administrative Procedure Act, 5 U.S.C. § 702 (1976).
165
Administrative Procedure Act, 5 U.S.C. § 706 (1976).
163
24
In 2002, anti-hunting interest groups tried passing a bill in the Senate titled the
Captive Exotic Animal Protection Act.166 This first part of the bill would ban the hunting
of exotic animals in enclosures.167 But this part was only an emotional ploy to pass the
bill because anti-hunting groups know that shooting animals that are fenced in will bring
less opposition. These groups really proposed the bill so the federal government—not the
state—would be allowed to define “fair chase”.168 The enactment of this bill would have
been disastrous for hunting states such as South Dakota because it would allow
congressman from urban states – like California, New York, and Massachusetts – to have
a say in the wildlife management of smaller, hunting-driven states. Luckily this bill
received no action during the Senate Judiciary Committee hearing.169
Other anti-hunting groups have made more straightforward attempts to
“federalize” wildlife management. The Sierra Club filed a lawsuit against the Michigan
Department of Natural Resources (MDNR) and the United States Fish and Wildlife
Service (USFWS) alleging a violation of federal law.170 The Sierra Club stated that the
MDNR and USFWS violated federal law by using money generated from the PittmanRobertson Act to fund habitat management projects that were destructive to forests.171
Essentially, the Sierra Club wanted state wildlife agencies to comply with federal rules
and regulations before using the same funds that they have used to run management
projects for over fifty-five years. This suit threatened the existence of state wildlife
166
Captive Exotic Animal Protection Act, S. 1655, 108 Cong. (2002).
Id.
168
Id.
169
Wild-About-Hunting, Anti-hunting Legislation Fails to Pass Senate Committee,
http://www.wild-about-hunting.com/outdoor_news/news_086.htm (last visited Nov. 18, 2008).
170
America Outdoors Weekly News & Events Report, Sportsman Unite to Defend Wildlife
Habitat Management, http://www.americaoutdoors.com/news/index_3.html (last visited Nov. 18,
2008).
171
Id.
167
25
management so much that three other agencies joined; Michigan United Conservation
Clubs (MUCC), the Ruffed Grouse Society, and the Wildlife Conservation Fund of
America (WCFA).172 “We had to get involved because we knew that a ruling in Michigan
in favor of the environmentalists would spell the end of programs that have produced
abundant wildlife for hunters and anglers across the country,” said Rick Story, the Vice
President of U.S. Sportsmen’s Alliance Foundation.173
Fortunately, the judge in the case of Sierra Club v. U.S. Fish & Wildlife Service174
dismissed all of the Sierra Club’s arguments and said that they didn’t have any standing
to bring this case.175 Although this ruling cost state wildlife agencies tens-of-thousands of
dollars in possible Pittman-Robertson funding, it will benefit them in the long run. Next
time the Sierra Club brings a similar suit in a different state, the judge will have
precedent to make a ruling from.
On September 25, 2007, Defenders of Wildlife launched the Protect America’s
Wildlife Act (PAW)176 to stop the wolf management program conducted by Alaska’s
Office of Fish and Game.177 This bill was introduced into legislation by Representative
George Miller (D-Calif.) and currently awaits approval.178 The Defenders of Wildlife
misrepresent Alaska’s wolf management program on its website by stating that airplanes
172
Id.
Michigan Forest Association, State Prevails over Sierra Club in Land Management Suit,
http://www.michiganforests.com/mfamag-spring02.htm (last visited Nov. 18, 2008).
174
189 F. Supp. 2d 684, (W.D. Mich. 2002).
175
Id.
176
H.R. 3663, 110th Cong. (2007).
177
Defenders of Wildlife, Aerial Hunting,
http://www.defenders.org/programs_and_policy/policy_and_legislation/aerial_hunting.php (last
visited Nov. 18, 2008).
178
Jordan Crump, Proposed Bill Would Ban Inhumane and Unsporting Aerial Gunning of
Wolves, The Humane Society of the United States, available at
http://www.hsus.org/press_and_publications/press_releases/protect_americas_wildlife_act_09260
7.html.
173
26
are used to chase wolves to exhaustion before shooting them and by showing pictures of
dead wolves hanging from grounded airplanes.179 The Defenders of Wildlife label
Alaska’s wolf management plan “hunting”. Alaska Congressman Don Young says the
strategies that the Defenders of Wildlife are using are dangerously misleading. 180
Congressman Young said the following:
The aerial wolf hunt is not about hunting, it’s about wildlife management. The ads
and information that the groups behind the bill are pushing are dangerously
misleading and absurdly inaccurate. Those who have never had to hunt to maintain
their survival are significantly crossing the boundaries when they try to dictate to
those that do.181
Alaska’s wolf management program is actually crucial to controlling the
population in rural areas where hunting these wolves is nearly impossible because it is in
a very remote area.182 When wolf numbers increase, caribou and moose numbers
significantly decrease.183 Caribou and moose herds are essential to rural residents and
Alaskan Natives because they depend on these animals to feed themselves and their
families.184 Alaska’s Office of Fish and game seeks to kill a mere 140 of the 10,000
wolves in the area per year to keep the population down.185
Overall, it is important to keep the regulation of wildlife management at
the state level because the state can actively adopt its regulations each year to fit the
needs of wildlife. Although every state has the same goal—to keep animal populations at
179
Defenders of Wildlife, supra note 177.
Crump, supra note 178.
181
Id.
182
Tom Remington, Keep the Feds and Animal Rights Groups Out of Alaska Wildlife
Management, Black Bear Blog, http://mainehuntingtoday.com/bbb/2007/09/26/keep-the-fedsand-animal-rights-groups-out-of-alaska-wildlife-management/ (last visited Nov. 18, 2008).
183
Id.
184
Remington, supra note 182.
185
Crump, supra note 178.
180
27
a desirable level—every state is different and cannot afford to have a unified set of
wildlife management regulations.
VII. Conclusion
Humans have expanded their territory significantly since the early 1900’s. Now
houses and buildings stand where deer habitat once did. Ultimately, humans are the
reason that wildlife populations are slowly destroying the environment. Because we
caused the destruction of the environment, we should be the ones that fix it, and wildlife
management is the key to this rehabilitation. Lawsuits and bills, such as the three
discussed, will continue to be presented by anti-hunting and animal rights activists. But
hunters, outdoorsmen, and outdoorswomen must work together with state agencies to
keep wildlife management under state regulation and keep their Constitutional rights
intact. State wildlife agencies don’t only protect wildlife; but also the environment, the
farming industry, and humans. Therefore, the United States would not be where it is
today without these agencies.
28