Why They Can Hunt On Your Land–and what you can do about it!
From ANIMAL PEOPLE, October 1992:
Posted your land yet?
If you’re among the 56 million Americans who
live in a nonmetropolitan area, chances are that you
have, long since. If you didn’t, but value your safety
and security, you’d better hop to it, because if you
don’t, your chances of getting the law to respond to
reports of armed intruders may be mighty slim from the
end of summer until after Christmas. Fall, according to
state and federal wildlife agencies, is hunting season, or
rather a succession of hunting seasons: small game,
dove, waterfowl, turkey, grouse and pheasant, archery,
muzzleloader, deer, bear, and a variety of others
depending upon what’s left alive in your neck of the
woods. Anyone with a rifle or shotgun, especially if
carrying a big knife as well and dressed in camouflage,
is presumed to be hunting legally until there are dead
human bodies–unless the land is posted.
If your land is specifically posted against all
hunting, trapping, and trespassing, and if you can iden-
tify the invaders, you can privately prosecute for tres-
passing, a tort that usually carries a fine of under $100.
The cops still won’t respond unless you are physically
harmed or threatened when you approach the invaders,
inform them of their offense, and tell them to leave, but
at least they can’t prosecute you for “hunter harassment,”
which they otherwise could in at least 41 of the 50 states,
with similar legislation pending in several of the rest. If
your land is posted and the invaders actually kill an ani-
mal, you might even be able to get police or a warden to
respond to a call and lay charges of illegal hunting–if
they don’t cart off the evidence and abscond before the
authorities get there, typically at a leisurely pace because
peace officers who try to enforce hunting laws are nine
times more likely to be killed in the line of duty than
those who work the toughest beats in the most drug-and-
violence-ridden inner cities. They don’t want to confront
gun-toting strangers any more than you do.
Of course posting your land isn’t easy. In
Vermont, for instance, you have to put up new posting
signs each year, stating your name and the date of post-
ing, and you have to personally register the posting with
your local town clerk. That makes the job tough for
absentee landowners, the intent of the requirement,
which was adopted when hunters became worried that
vacationers, ski resorts, and timber companies might
among them post almost half the privately owned part of
the state off limits. It also makes posting difficult for
people who work longer hours than town clerks, which
in most smaller communities is practically everyone. In
neighboring New York, the signs need not be dated and
reposted every year, but they must bear the property
owner’s name and address, an invitation to retaliatory
acts such as vandalizing mailboxes and dumping offal in
yards. Such retaliation does happen–not just in New
York and Vermont. Kathy Cornett of the Middletown
Animal Rights Community in Middletown, Connecticut,
found a buckskin and head in her yard on December 11,
1991, after she made her anti-hunting position known.
Mary Christiansen and family, of Newbury, New
Hampshire, have posted their land since 1969. On
November 15, 1991, they found a doe’s head in their
mailbox. A few years earlier, Barbara and Junior
Harvey of Dunham, Quebec, refused to allow a party of
bowhunters to enter their cow pasture. They found deer
legs, a skull, and entrails draped over their doorstep the
next morning. Testified I.C. James of Enid, Mississippi,
in January 1990, when asked about problems with
hunters by The New York Times, “I’ve been threatened
on the telephone, my posting signs shot up and torn
down, they’ve burned hay on my place, and their dogs
have killed my ducks down on my lake. “
Kevin Johnson of Atlantic, Iowa, told state
legislators a similar story in December 1989, pleading
for more stringent penalties against hunters who trespass-
-the only offense most can be charged with prior to
killing an animal, since most will claim they were only
out for a walk with a gun for company, not hunting, if
charged with a hunting offense. “It’s so bad that when
the deer season opens, farmers don’t leave their houses,”
Johnson said. “There are threats of barn burnings or cat-
tle destruction.”
Even when the offenders are caught, Iowa game
warden George Hemmen agreed, “Most of the time the
farmer won’t press charges. They’re either afraid of
recriminations or realize the small fine the violators will
receive isn’t worth the effort. Trespassing is the biggest
problem.”
The reason trespassing is the biggest problem is
that in the absence of posting signs, the 15 million
Americans who hunt have virtually unrestricted access to
the property of the 56 million rural residents–and posting
signs routinely blow down, fall down, or are torn down
by hunters who know this. Further, even when land is
posted, hunters in most jurisdictions retain the right to
retrieve animals they shoot while standing elsewhere.
Thus on November 15, 1988, Maine hunter Donald
Rogerson disregarded or didn’t notice posting signs in a
heavily developed area just outside of Bangor. When he
mistook homeowner Karen Wood’s white mittens for a
deer’s rump, he fired into her yard and killed her, as her
year-old twins wailed inside the house.
While Karen Wood’s death drew national pub-
licity, it was scarcely an isolated incident. Duane Dailey
and Richard Tupper shot toward a house near Aberdeen,
Washington, on November 1, 1991, killing Robert
Duncan, as he drank coffee in his daughter’s kitchen.
The ANIMAL PEOPLE files include an inch-thick
stack of similar accounts, from almost every state and
region.
The origin of the trespassing problem associated
with hunting, as Fund for Animals founder Cleveland
Amory succinctly explained in the opening chapter of his
1974 bestseller Man Kind?, is that, “In the old days, all
animals belonged to the king. Since the United States
decided not to have a king, all animals belonged, as it
were, to no one.” David Favre in his recently published
casebook Wildlife Law painstakingly traces the long
series of acts and precedents by which wildlife and
therefore hunting have come under the dominion of state
governments, except for endangered species, which
since the adoption of the Endangered Species Act in 1973
have been under federal jurisdiction. It is noteworthy
that the vast body of jurisprudence Favre records does
not include a single case of a property owner challenging
either the right of a hunter to be on his/her land, or the
right of the state to authorize a hunter to be there, by the
action of selling him a hunting license.
In the Middle Ages, when wildlife belonged to
the king and authorized members of the nobility, the
presumption was that no landholder would object to the
presence of hunters. Of course most landholders were
members of the nobility, whose main occupation after
making war on one another was hunting. The peasants
owned no land. Instead, they worked sections of “the
common,” or untitled land, which were theirs by tradi-
tion but not by deed–and as recorded in the 14th century
British poem Piers Plowman, they in any event tended
to welcome armed help in contending with the animals
who raided their herds, flocks, and crops.
The presumptions of the Middle Ages still held
currency in the U.S. and Canada only two generations
ago, when the majority of rural landholders were still
farmers and the majority of farmers still hated and feared
most wildlife. Bounties were common, not only on
predators, but also on such suspected crop-eaters and
field-underminers as gophers, prairie dogs, skunks,
raccoons, and rabbits. Millions of teenagers earned
pocket money by maintaining a murderous open season
on “small game.”
Presumptions are the foundation of English
Common Law, and are as such the basis of our modern-
day legal system. But presumptions hold legal validity
only when they are verifiable and supportable by a chain
of precedents, if not by code. The presumptions under-
lying the supposed right of hunters to hunt anywhere that
their presence is not expressly forbidden have been legal-
ly weak since the last commons in the continental U.S.
and Canada were deeded, toward the end of the 19th
century. There is a clear chain of precedent to establish
that states have jurisdiction over wildlife, but the prece-
dents which enable states to license hunters to use private
property as if it were still the common are much less
clear.
In fact, a growing body of conservative legal
opinion argues that the state has no authority to deprive a
property owner of the use of property, and no authority
to subject the property owner to an “undue burden” in
exercising property rights, without payment of just com-
pensation. When the state interferes with property use
without making compensation, the theory continues, it
is engaging in a “taking,” because even though the deed
to the property remains with the ostensible owner, the
rights of ownership have been usurped. This argument
was accepted by the Supreme Court in both December
1991 and June 1992. In the 1991 case, Whitney Benefits
Inc. won compensation of $150 million from the
Department of the Interior, for having been prevented
from opening a strip mine in Wyoming. In the 1992
case, South Carolina landowner David Lucas overturned
state environmental regulations that prevented him from
building a house.
Over 200 similar cases are pending in various
federal courts. Most of them challenge environmental
laws, politically and financially boosted by the so-called
“wise use” lobby, a collection of special-interest groups
involved in mining, energy, timber, land development,
cattle and sheep ranching, the sale and use of off-road
vehicles, hunting, and trapping. Generally considered
to be in the “wise use” camp are the National Rifle
Association, National Trappers Association, Boone and
Crocket Club, and Safari Club International, all of
whom wish to weaken laws that restrict their members’
choice of victims.
But the theory of takings is double-edged. If the
state may not “take” property by mandating, for instance,
that a portion including wildlife habitat must be protect-
ed, neither may it “take” property by allowing unautho-
rized strangers to venture there in pursuit of wildlife,
putting the owners at physical risk and requiring them to
assume an undue economic and physical burder if they
choose to post the property against such intrusions.
As Hope Sawyer Buyukmihci wrote in 1990,
“Most people cannot afford the cost of putting up signs
over and over, just to have them shot down. Most peo-
ple don’t have the time or courage to patrol their grounds
constantly at the risk of their lives, to catch and appre-
hend trespassing hunters.” Buyukmihci, guardian of the
Unexpected Wildlife Refuge in central New Jersey, went
on to describe the efforts of several upstate New York
landowners to protect themselves from hunters. After
repeated unpleasant encounters, they not only posted
their land; they formed an association, secured authority
to hire a deputized private gamekeeper, and discovered
that the price of this necessary security cost them no
small sum.
“It was evident,” Buyukmihci wrote, “that the
burden of proof of violations and the posting of private
property was not fair to the landowners. It was suggested
to the conservation department that burden of proof of a
hunter’s right to enter private land should be placed on
the hunter in the form of a notarized permit of entry.”
Thus, she continued, “There should be a new law. This
law would stipulate that any land open to hunting must be
POSTED FOR HUNTING. All other land would be off
limits, and any hunter seen thereon subject to immediate
arrest. Let those who hunt, or condone hunting, put up
the signs, maintain them, and police their grounds for
violations of trespass and safety rules.”
Organized political movement in that direction
began at almost the same time in Maine, where property
owners upset over the outcome of the Karen Wood case
(Rogerson was twice acquitted of manslaughter) formed
the Non-Hunters Rights Alliance. Simultaneously but
independently, three members of the Maine legislature
introduced a bill to reverse the posting onus: to place it
with the minority of rural property owners who favor
hunting, rather than with the majority who don’t. The
influence of the hunting lobby in Maine is such that the
bill never got out of committee. A petition drive to place
a similar measure on the state ballot as a referendum
question failed, according to NHRA co-founder Dan
Namowitz, “because of a lack of adequate preparation.”
Still with almost no budget for direct mailings and pub-
licity, the NHRA attracted a mailing list of over 2,000
property owners who favor a reversed onus–many of
them from other states. More than a few, Namowitz
says, are hunters themselves, who wish to hunt on their
own land without interference from poachers.
More recently, explains fellow co-founder
Lorraine Tedesky, the NHRA has focused on more tradi-
tional means of controlling hunters, such as forbidding
shooting inside city limits and extending the safety zone
around dwellings, within which hunters may not fire
weapons. These measures can be implented locally,
while reversing the posting onus would require either leg-
islative action or a precedent-setting judicial opinion–
expensive work for an organization of that size, with no
paid staff and no fundraising apparatus.
But a politically potent third faction, other than
anti-hunters and beleaguered property owners, might
favor reversing the posting onus if the idea is appropriate-
ly advanced: law enforcement agencies, particularly
those charged with enforcing wildlife laws. In August
1991, ANIMAL PEOPLE brought up the posting onus
at a discussion meeting in Windsor Locks, Connecticut,
among representatives of animal protection groups and
ranking members of the International Association of Fish
and Wildlife Agencies. Speaking from first-hand experi-
ence during 12 years as volunteer assistant to a Quebec
deputy game warden, the ANIMAL PEOPLE represen-
tative noted that the most common public complaint
about hunters involves trespassing; that confronting
armed trespassers is among the most dangerous tasks
wardens perform; and that the job could be made much
easier if in townships or counties where a majority of
landowners oppose allowing hunters on their property,
the posting onus were reversed. Senior wildlife officials
from New York, Virginia, Oklahoma, Florida, and
Missouri agreed almost immediately that the idea might
be appropriate, especially in suburban areas. Questions
were raised as to whether the decision to reverse the onus
should be based on ownership of the majority of the land,
rather than on the number of property owners. For
instance, one asked, what if two-thirds of the land in a
township belongs to two timber companies who want to
allow hunting, but the majority of land owners have
houses on half-acre lots? Another quickly responded that
the burden of posting for hunting by the two property
owners would be substantially less than the present bur-
den of posting against hunting by all the rest. Without
exception, the wildlife officials present agreed that
reversing the posting onus merits serious study, no mat-
ter what position one takes on hunting per se. None
opposed the idea.
Because reversing the posting onus through leg-
islative action is likely to require the support of wildlife
agencies, it may be good that animal protection groups
have so far kept a low profile on the subject. The late
Luke Dommer, founder of the Committee to Abolish
Sport Hunting, cited reversing the posting onus as the
fifth of 10 committee goals in his proclamation of
“National Wildlife Ecology Day” on September 28,
1991. But Dommer was already dying of cancer, and
CASH as yet has not translated his intent into a cam-
paign.
The Fund for Animals has maintained the high-
est profile of any group actively opposed to hunting over
the past 20 years, but has ignored the posting onus. In
early March 1991, ANIMAL PEOPLE took the oppor-
tunity to ask Fund founder Cleveland Amory and nation-
al director Wayne Pacelle why, toward the end of a visit
to the Fund’s Black Beauty Ranch sanctuary in northeast-
ern Texas. Informed of the possible value of the “wise
use” precedents, then moving rapidly through lower
courts, Amory was enthusiastic about the possibility of
successful legal action. Noting the success of the
California Wildlife Protection Act in 1990, a referendum
that permanently halted recreational hunting of mountain
lions, Amory also suggested that the reversed onus could
be taken directly to the voters in many states, since it
would almost certainly be supported by the majority of
property owners regardless of their feelings about hunt-
ing. Pacelle, however, argued that the Fund should con-
tinue to focus upon opposing hunter harassment laws and
trying to halt specific unpopular hunts, such as the annu-
al massacre of buffalo who wander into Montana from
Yellowstone National Park. Pacelle’s view has prevailed.
The history of hunter harassment might have
suggested an opposite direction. Animal rights historians
like to trace the tactic back to the British hunt saboteurs,
whose efforts to disrupt fox hunts date back decades, but
only began drawing international media attention in the
early 1980s. Actuality is that tactical hunter harassment
in the U.S. apparently began with landowners in upstate
New York state a few years earlier, including several
hunters. Unaware of the fox hunting saboteurs, they
began following unauthorized deer hunters, often with
their own guns in hand, making as much noise as possi-
ble. Several violent confrontations resulted; one gun-tot-
ing landowner, apparently a hunter himself, is now doing
time for murder. The tactic succeeded, however, for
some landowners, especially those who went unarmed.
Soon it was emulated in nearby New England. Pacelle
rose to national prominence–and to his position with the
Fund–as result of a hunter harassment action in 1987, on
land owned by Yale University. Charged with violating
Connecticut’s newly passed hunter harassment law, one
of the first in the U.S., Pacelle successfully challenged
the law as a violation of his right to free speech. Since
joining the Fund staff in 1988, Pacelle has directed
dozens of hunter harassment activities during similar
hunts on public or quasi-public land, seeking both public
debate about hunting and more chances to fight hunter
harassment laws. The National Rifle Association and
other hunting proponents have meanwhile seized upon
hunter harassment as a recruiting and organizing issue;
38 of the 41 anti-hunter harassment statutes now on state
books have been adopted during the past four years,
while NRA membership is up by 300,000 since ads
decrying hunter harassment began appearing in national-
ly circulated magazines.
The Fund may have ceded the opportunity and
momentum to push for reversing the posting onus to the
Humane Society of the U.S. In December 1991,
Namowitz and Tedesky met in Washington D.C. with
HSUS general counsel Roger Kindler. Namowitz recalls
that, “It sounded as if he saw no solid grounding for the
tradition of landowners having to post their land to forbid
hunting, but there was no case history. They now have a
study underway in their legal department to analyze the
issue and figure out a strategy for a test case.”
Confirms HSUS New England representative
Arnold Baer, “We’ve been interested in this for almost
two years. The posting onus as it stands now is almost
like common law, in that it is pretty well ingrained. It’ll
be a tough one to fight–it’s going to take some work.”
Still, the search for a test case in a favorable jurisdiction
is apparently underway. If filed, the case will have to
be contested, appealed, and contested again in order to
set a new legal precedent. Then the posting laws of all
other states will have to be likewise contested, pending
legislative amendment to conform to the precedent.
As Baer points out, “The quicker way is to look
for legislation. We’re looking at this in a number of dif-
ferent states.” But HSUS is cautious about endorsing
efforts to mount a referendum on the posting onus,
because, “Referendums are damned tricky. You should-
n’t go ahead with one on a controversial issue unless
you’re sure you’re going to win. Otherwise the legislature
wherever you are will just say, ‘the people have spoken,’
and you’ll never get any further progress.”
Whatever HSUS eventually does, or the Fund,
or CASH, or NHRA, Baer, Namowitz, and Tedesky all
agree that reversing the posting onus is, “an idea whose
time has come.” Hunters are no longer almost automati-
cally welcome on rural property, or even most farms.
More land is now posted than not across broad sections
of New England, the mid-Atlantic region, the west
coast, and even the South. It’s an issue awaiting a kin-
dling event–one hopes a successful lawsuit, rather than
the death of another Karen Wood–to ignite the concerns
of homeowners and farmers across the continent.
–Merritt Clifton
