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The regulation of hunting is a matter reserved to the states as part of their Police Power under the Tenth Amendment to the U.S. Constitution (Totemoff v. Alaska, 905 P.2d 954 [Alaska 1995]). Congress maintains statutes that regulate hunting on federal land. States may further regulate the federal lands located within their boundaries so long as their laws do not conflict with federal laws.
South Dakota and Georgia illustrate the sort of hunting laws typically maintained by a state. In South Dakota hunting is regulated by Title 41 of the South Dakota Codified Laws Annotated, Section 41-1-1 et seq. Under Title 41 hunters must obtain from the game, fish, and parks commission a license for the privilege of hunting in South Dakota. Other states maintain similar commissions or boards to implement licensing procedures and policies.
Licensing parameters vary from state to state. Most states have minimum age requirements. In South Dakota, for example, no person under the age of 12 may obtain a license, but an 11-year-old may obtain a license to hunt between September 1 and December 31 if he or she will turn 12 in that period. A child under the age of 16 may obtain a basic game and fish license without cost, but only if he or she has completed a firearms safety course. A parent of the child must apply for the license, and the child may hunt only with a parent, guardian, or responsible adult (§ 41-6-13).
In Georgia any person over the age of 12 may hunt on his or her own land. If a person between the ages of 12 and 15 seeks to hunt, he or she must complete a hunter education course, and then may hunt only with a parent or guardian. This is true even for children between the ages of 12 and 15 who are hunting on the land of their parents or guardians. A person between the ages of 16 and 25 must also complete a hunter education course before obtaining a hunting license.
States may make licensing exceptions for certain persons. In Georgia, for example, persons over the age of 65 may receive a hunting license without paying a fee. Furthermore, persons who are permanently and totally disabled may obtain a hunting or fishing license for free (Ga. Code Ann. § 27-2-4 ).
In some states an additional license must be obtained to hunt certain animals whose populations are of concern to the state. In South Dakota these animals are small game, big game, fur-bearing animals, and migratory waterfowl. An additional license is required for these animals so that the commission can keep track of the number of persons hunting them and conserve their populations.
To control animal populations, state licensing commissions also allow the hunting of certain animals only at certain times of the year. These time periods are called open seasons, and they are set each year by the state regulatory commission. Open seasons limitations sometimes come with special exceptions. In South Dakota, for example, residents do not need a license to hunt game birds on their own land during an open season.
Most states place separate restrictions on resident versus nonresident licensing and hunting for certain animals. In South Dakota, for example, nonresidents may hunt only if they have obtained a special nonresident license. A nonresident may hunt small and big game, waterfowl, and wild turkey. A nonresident must obtain a nonresident predator license to hunt predators, but if the nonresident has a nonresi-dent small-game, big-game, waterfowl, or wild turkey license, the nonresident may hunt predators in the animal group authorized by that license without a separate nonresident predator license (S.D. Codified Laws Ann. § 41-6-30). Predators include jackrabbits, prairie dogs, gophers, ground squirrels, coyotes, red foxes, gray foxes, skunks, crows, and porcupines.
States may place additional restrictions on the hunting of certain animals. In Georgia, for example, feral hogs may be hunted only in certain situations. For instance, a hunter may not shoot a feral hog during deer season unless the hunter and all persons accompanying the hunter are each wearing a total of at least five hundred square inches of daylight florescent orange material as an outer garment above the waistline. In South Dakota fur-bearing animals are completely off-limits to nonresidents. No person may apply for a license to take protected fur-bearing animals unless he or she has lived in the state for 90 days prior to the application date (§ 41-6-24).
State hunting statutes also specify standards for firearm power. In South Dakota, for example, no one may hunt big game with a muzzle loading rifle that discharges a projectile less than forty-four hundredths of an inch in diameter. No one may hunt big game with buckshot, or with a single ball or rifled slug weighing less than one-half ounce. No self-loading or autoloading firearm that holds more than six cartridges may be used to hunt big game, and no fully automatic weapons may be used to hunt big or small game (§ 41-8-10, -13).
States may enact a variety of other restrictions on hunting. In Georgia, at night, no person may hunt any game bird or game animal except for raccoon, opossums, foxes, and bobcats. Those animals may be hunted at night, but only with a lantern or a light that does not exceed six volts (Ga. Code Ann. § 27-3-24). In South Dakota no dogs may be used in the hunting of big game, no person may use salt to entice big game, and no person may use artificial light in hunting (S.D. Codified Laws Ann. § 41-8-15, -16). However, an animal damage control officer may use an artificial light to take a Nuisance animal from land, with the landowner's written permission (§ 41-8-17).
Most states consider hunting a right of residents and a valuable promotional tool for tourism. Many states even have hunter harassment statutes, which punish persons for intentionally distracting hunters. Under such statutes a person may be arrested and prosecuted for attempting to discourage hunters or drive away game.
Cottriel, Darren K. 1996. "The Right to Hunt in the Twenty-First Century: Can the Public Trust Doctrine Save an American Tradition?" Pacific Law Journal 27 (spring): 1235–87.
"Fargo Face Off: Governors Battle over Hunting." September 3, 2003. ESPN.com: Outdoors. Available online at <espn.go.com/outdoors/conservation/news/2003/0903/1608662.html> (accessed September 25, 2003).
"Ruling Sought on Indian Hunting, Fishing Rules." September 17, 2003. CNN.com: U.S. News. Available online at <www.cnn.com/2003/US/Midwest/09/17/tribes.hunting> (accessed September 25, 2003).
Ugalde, Aileen M. 1991. "The Right to Arm Bears: Activists' Protests against Hunting." University of Miami Law Review 45.
HUNTING. The act of pursuing and taking wild animals; the chase.
2. The chase gives a kind of title by occupancy, by which the hunter acquires a right or property in the game which he captures. In the United States, the right of hunting is universal, and limited only so far as to exclude hunters from committing injuries to private property or to the public; as, by shooting on public roads. Vide Feroe naturae; Occupancy.