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Posted
December 5, 2004

Fair Game

Hunters and anglers benefit from a strong ethic of the commons, opening up a new constituency for the movement.

Whose woods they are you might not know. So can you hunt in them? The question has new significance in the wake of the recent shooting of six hunters in Wisconsin in a dispute over hunting turf. Encounters like that are likely to increase as sprawl continues and land available for hunting shrinks. Hunters, like the prey they stalk, face the threat of habitat decline.

And that raises an age-old legal issue regarding hunting rights on private land. There’s a general belief that a man’s forest is his castle, to the same extent his house is. “We need to create some incentives and programs” for private owners to permit hunting, Mike Bartz, a Wisconsin game warden told the Associated Press. “But then again, our country was founded on private property rights, so it’s not easy.”

Except that it wasn’t, at least where hunting and fishing are concerned. Early property laws in the American colonies recognized common rights to these activities to a degree that is surprising today. The forests were a prime source of subsistence, and courts and legislators put this human need above abstract property claims. In Maine and other states, for example, private woodlands were open to all for hunting or cutting wood, unless the owner fenced them. The Massachusetts Colonial Ordinance of 1641-47 declared that “any man may pass and repass on foot through any man’s property” to fish or fowl at common ponds.

This legal tradition is the reason for the posting laws that are common in the states. People can assume your land is open for hunting unless you fence it, either with a physical barrier or through notices posted on trees at regular intervals Recently states have taken a further step, and required actual permission from an owner to hunt on private land. But so strong is the old commons tradition that South Dakota — to take just one example — didn’t pass such a law until 25 years ago.

Not only that. Under the public trust doctrine that goes back for centuries, the game itself is common property under the protection of the state. The deer might be on your land, but that doesn’t mean you own the deer, or necessarily have a right to capture or kill it. This doctrine has led among other things to the issue — vexatious in some states — of hunting from public rights of way. If you are on such a right of way and shoot a duck that is flying over someone’s property, have you violated their property rights? Better ask a lawyer before you shoot.

Politically, the question of hunting on private land poses some intriguing scenarios. It links gun owners and enviros in the cause of open-land protection; and it pits two stalwarts of the Republican coalition — gun-owners and property rights fundamentalists — against one another, potentially at least. (I’ll leave vegans and animal rights advocates for another time.)

But there’s a more basic question. The property rights lobby contends that private property is an absolute, not subject to time and change. It derides those who argue to the contrary that property is a social creation and that its contours therefore are subject to changing circumstance and need. Yet look at what has happened in regards to hunting. First the colonies modified the inherited English common law to provide more rights for hunters to enter private land. In a vast new wilderness in which subsistence was a prime concern, the times required an enlarged hunting commons. Then, as space filled up and forests became suburbs, as hunting became recreation rather than subsistence and hunters began to carry semi-automatic weapons, the balance shifted back towards the individual property owner.

There is nothing extraordinary about this. The life of the law, as Justice Holmes put it famously, is “not logic but experience.” What’s extraordinary is that property rights partisans should try to deny life process and the facts of human need. If these can make the balance shift towards the individual property owner, then why can they not shift it the other way the other way as well — when for example the threats of foul air and water or species extinction become paramount?