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Appellate court reverses trial court to affirm ban of deer-dogging in Missouri

Last August, Judge Robert L. Smith of Ripley County, Missouri, declared some state regulations regarding deer hunting to be unconstitutional. Those regulations prohibited hunting deer with the aid of dogs and from vehicles. On July 15, 2011, in Turner and Jones v. Missouri Dept of Conservation, the Missouri Court of Appeals for the Southern District reversed Judge Smith’s rulings, holding that Neil Turner and Bobby “Shannon” Jones lacked standing to challenge the constitutionality of these regulations, which are enforced by the Missouri Department of Conservation.

Turner was among those identified in a federal investigation of a group in Southeast Missouri who in 2008 apparently traveled in ATVs and used dogs to drive deer to hunters in tree stands within the Mark Twain National Forest. The dogs were equipped with radio transmitters. Jones was never charged, but was questioned by a Missouri Department of Conservation (MDC) investigator.

Turner and Jones persuaded Judge Smith that the regulations prohibiting hunting deer with “a motor-driven conveyance” or with dogs were unconstitutionally vague, so vague that they couldn’t tell what was prohibited. In addition, they claimed that the regulations were defective because they were too broad. The vagueness and overbreadth deprived Turner and Jones (and MDC) of notice of what was legal, depriving Turner and Jones of the due process protection afforded by the federal and state constitutions.

In a footnote, the court of appeals indicated that Judge Smith was striking a blow for hunting rights, rather than following the law, quoting his judgment before trashing it:

Upon consideration of all evidence and arguments of the parties, the trial court recognizes that hunting is an important right. In our area, hunting is not only for recreation, but it is a part of our way of life and any infringement of this right must be constitutional.

Turner and Jones had a couple of points. The language of the regulations in questions seems to encompass use of vehicles that is not intended to be prohibited (such as traveling to a hunting area) and only uses the plural term “dogs” not the singular form “dog.” At trial, the attorneys for Turner and Jones asked hypothetical questions of MDC agents about interpretation of the regulations and obtained inconsistent answers. The attorneys argued that not even MDC knew the meaning of its regulations.

But the Court of Appeals had no need to slice-and-dice the hunters’ legal arguments. The appellate court ruled that neither Turner nor Jones had the proper standing to bring the constitutional questions to court in the first place, because the vagueness in the regulations didn’t pertain to the acts that Turner was charged with, and Jones wasn’t charged with anything.  Courts do not have jurisdiction to consider hypothetical questions, so the trial court erred by ruling on the petition of Turner and Jones. In other words, Turner made no claim that the federal prosecution of him would end if the regulations were declared void. Turner’s group had more than one dog, so he couldn’t argue that the regulation was vague about whether use of one dog was prohibited.  Jones was not prosecuted and had nothing at stake.

The idea that the regulations were overbroad received even less respect from the Court of Appeals. MDC successfully argued that the concept of a regulation being overly broad only applies in the context of the First Amendment to the United States Constitution. To be constitutional, a regulation that restricts speech or the freedom of people to associate with whomever they wish must be narrowly focused on achieving a legitimate legislative purpose.

Deer-hunting regulations were formulated when deer were much more scarce than now, though seasons and limits have been loosened up considerably. Hunting deer with dogs was considered sporting in the 19th Century and earlier, but ATVs and radio telemetry weren’t a part of the tradition.


Pen-raised whitetail deer are domestic animals, under Missouri law

If a court told me that I had to kill my dog for killing a deer, I’d be upset. But it could happen.

When a dog kills or maims a “domestic animal” in Missouri,  the statutory penalties (section 273.020 RSMo) are harsh. The owner or keeper of the bad dog is liable for the full amount of monetary damages and is obligated to kill the bad dog. But can whitetail deer be considered domestic animals?

Three dogs, alleged to have been owned by Lange, broke into Oak Creek’s pen and killed 21 bucks, does and fawns, all hand-raised and kept for the ultimate purpose of creating bucks with massive racks. When Oak Creek sued Lange, Lange asked the court to rule, in a motion for summary judgment, that the words “sheep and other domestic animals” in section 273.020 applied to livestock typically raised on farms, such as cattle, swine, chickens and horses.

The Missouri court of appeals in Oak Creek Whitetail Ranch v. Lange disagreed with the Osage County trial judge, looking to a dictionary definition, which included the phrase “which have been domesticated by man so as to live and breed in a tame condition.” The court of appeals noted that the slain deer had never been in the wild, but “were all penned and hand-fed, raised in an environment that did not allow them to move freely beyond their confined area.”  The court’s logic is apparently that whether an animal (other than a sheep) is domestic is determined by the individual animal’s status, not the species. Oak Creek’s deer were apparently defenseless in their confinement, unable to flee and perhaps unable to survive in the wild. Cats, dogs and hogs often become feral, regardless of their previous condition of confinement.

The offspring of breeding stock, such as those killed in Oak Creek’s pen, are apparently not domestic animals when placed on game ranches to be killed by trophy-seeking hunters, who pay handsomely for the privilege of slaughtering them. You can see an example of the ideal rack on the Farming for Wildlife website.

Is it necessary to affirm the right to hunt and fish in state constitutions?

“I liked it better when I was hunting birds there,” said the mediator, when he figured out the location of the garages at a Branson condominium. Seven attorneys gathered to attempt to resolve a dispute over rights to use four garages at the condominium.

As the Ozarks and much of rural America becomes suburbanized, many people want to protect their cherished traditions of hunting and fishing. In ten states, citizens have amended their constitutions to affirm the right to hunt and fish. Oklahoma has done so and the proposal is being considered in Arkansas and Tennessee.

As I hear people in the Ozarks express themselves about land and water and fish and game, I hear the same arguments that have been made to affirm the rights of native peoples to continue their hunting and fishing traditions, some of which have been protected from state regulation by federal law.

The Ozarks have been populated by people of mostly European ancestry for nearly 300 years. After many generations, it’s no wonder that members of old Ozarks familes feel like they need to assert themselves to hang on to their culture. And those whose families haven’t been around as long would naturally want to feel secure in their adopted traditions.

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