Blog By: Daniel Short
Hunting and fishing are traditions, hobbies, sports, and much more for many throughout the Commonwealth of Kentucky. Hunting and fishing laws date back centuries; England’s Forest Laws reserved land to be hunted by nobility restricting use by the locals who lived on and utilized the land.[i] In the turn of the nineteenth century, conservation gained momentum in the United States, largely due to efforts by President Theodore Roosevelt.[ii] In the early twentieth century, states began instituting their own wildlife commissions responsible for licensure.[iii] Legislature enacted the Kentucky Fish and Game Commission in 1912 which generated $31,000 from license sales in its first 5 months.[iv]
States, including Kentucky, established exemptions from the license requirements.[v] Kentucky carved out an exemption for resident owners of farmlands.[vi] The attorney general’s office clarified the “resident” definition and deems it as “someone who lives/resides on the property in question.”[vii] However, the exemption is for resident owners of “farmlands,” and a definition or administrative guidance as to what qualifies as “farmland” is nonexistent. Generally, it is understood and practiced that a private “landowner” only need to own the land.[viii] Notably, this is also at odds with the residency definition from administrative guidance and precedent.[ix]
In 2023, Senate Bill 241, focusing primarily on the purchase of a conservation easement,[x] added an acreage requirement to the exemption.[xi] Now the resident landowner’s property must be at least five acres to qualify for a license exemption.[xii]
The requirement intended to prevent abuse of the license exemption.[xiii] People may illegally hunt/fish without a license and report it was done on their own small property.[xiv] While this is certainly worth preventing, the five acre requirement is an ineffective solution. It restricts the right of enjoyment and use of property and, because it is difficult to police, the problem it seeks to solve remains an issue.
A landowner in Kentucky holds the right to use and enjoy their property as they see fit, so long as that use and enjoyment does not infringe another’s rights.[xv] The state may restrict this right through its policing power,[xvi] the same power affording the state the ability to regulate hunting and fishing.[xvii] The valid exercise of police power must bear a real and substantial relationship to the public health, safety, morality, or some other phase of general welfare.[xviii] There is a reasonable relationship extending regulations, like bag limits or hunting seasons, to private property because they affect total wildlife population within the state.[xix] The same cannot be said for requiring an otherwise compliant sportsman landowner to pay to participate in the enjoyment of hunting or fishing on their own property which may have been purchased specifically for that.
This issue begs the question of “How would this acreage requirement be enforced?”. Imagine someone is caught harvesting game and then uses the excuse that the game was on their own property, so they don’t need a license. The new requirement was to target this abuse.[xx] Does a game warden then require the landowner to prove he is the owner of more than five acres? Do a title search, survey the property? Do the same thing for online checkers? The practical outcome is the game warden, when the violator identified the property where game was supposedly harvested, would estimate acreage, and write a ticket if deemed less than five acres. If the violator contests this ticket, the same questions asked to establish proof of ownership recur.
Finally, as a result, this is not more likely to deter those abusing the exemption. The Kentucky Department of Fish and Wildlife says people are claiming to harvest animals on extremely small tracts of land.[xxi] The dishonest outdoorsman who uses Telecheck simply chooses an option for a private landowner without verifying acreage or ownership; they can lie with Telecheck just as easily as before the acreage requirement. Further, the violator lying about harvesting on a small tract will use the same lie: asserting the plot was greater than five acres, thus exempting them from holding a license. This leads back to the policing and proof issue.
Perhaps the Kentucky legislature realized the acreage requirement proves ineffective, or just gave way to large backlash, nevertheless, they retracted the rule.[xxii] The acreage requirement only existed between March 2023 and February 2024.[xxiii] Now all resident landowners are exempt from licensing on their property.[xxiv]
While acreage requirements are used in other states, there should be some substantial relationship to a public benefit. There’s no reason to interfere with the use and enjoyment of private landowners who may own a small pond or hunt game that wanders throughout their few acres of property. While curtailing abuse is a noble prerogative, there needs to be a stronger regulation saving bona fide private landowners, no matter the size of their plots. This should focus on policing by game wardens and testing the veracity of a fraudsters claim they own they took games on their own property. For now, Kentucky corrected a vexing mistake and vindicated the rights of private outdoorsmen.[xxv]
[i] Sarah Woodbury, Forest Laws in the Middle Ages, Sarah Woodbury (Aug. 9, 2012), https://www.sarahwoodbury.com/forest-laws/#:~:text=The%20English%20forest%20laws%2C%20on,the%20most%20severe%20cases%2C%20death [https://perma.cc/AVT5-PDJ9].
[ii] Jeff Brammer, Sportsmen: The Creators of Modern Wildlife Conservation and Irreplaceable Contributors to Maintaining Biodiversity, Conservation Hist., 2019, at 1, 4 chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.fws.gov/sites/default/files/documents/CH-Journal_April_2019_Vol_III_No_1_0.pdf [https://perma.cc/C3CP-8LFF].
[iii] E.g., Department of Fish and Game celebrates 130 years of serving California, Cal. Dep’t of Fish and Wildlife, https://wildlife.ca.gov/Publications/History#:~:text=1907.,warden)%20force%20expands%20to%2073 (last viewed Apr. 06, 2024) [https://perma.cc/36SB-A4BC] (California first issues hunting license in 1907), infra note iv (Kentucky issued first hunting license in 1912).
[iv] The History of the Kentucky Department of Fish and Wildlife Resources from Settlement Through 1944, Ky. Dep’t Fish and Wildlife, https://fw.ky.gov/More/Pages/History.aspx (last viewed Apr. 1, 2024) [https://perma.cc/Q6YA-TDL3].
[v] Ky. Rev. Stat. § 150.170.
[vi] Ky. Rev. Stat. § 150.170 (4).
[vii] Ky. Atty. Gen, Opinion Letter (Feb. 15, 1979).
[viii] Frequently Asked Questions, Ky. Dep’t Fish and Wildlife, https://fw.ky.gov/More/Pages/FAQ.aspx#:~:text=All%20persons%20fishing%20in%20any,fishing%20on%20their%20own%20land (last viewed Apr. 1, 2024) [https://perma.cc/RL3B-CUUE].
[ix] Compare id. with supra note vii.
[x] Felicia Jordan, Kentuckians who own less than 5 acres now need licenses to fish, hunt on own property, WCPO (Apr. 14, 2023, 5:50 PM), https://www.wcpo.com/news/state/state-kentucky/kentuckians-who-own-less-than-5-acres-now-need-licenses-to-fish-hunt-on-own-property [https://perma.cc/V9TD-NJRW].
[xi] New Legislation Related to Kentucky Fish and Wildlife, Ky. Dep’t Fish and Wildlife (Apr.13, 2023), https://fw.ky.gov/News/Pages/New-Legislation-Related-to-Kentucky-Fish-and-Wildlife.aspx [https://perma.cc/Q429-2892].
[xii] Id.
[xiii] Supra note x.
[xiv] See id.
[xv] Com. ex rel. Dep’t for Nat. Res. and Env’t Prot. v. Stephens, 539 S.W.2d 303, 305 (Ky. 1976).
[xvi] Dep’t for Nat. Res. and Env’t Prot. v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 473 (Ky. 1978).
[xvii] David Favre, American Wildlife Law - An Introduction, Animal L. Web Ctr. (2003), https://www.animallaw.info/article/american-wildlife-law-introduction [https://perma.cc/JS5J-3EMA]; Nat’l Rsch. Council, Land Use and Wildlife 226 (1970).
[xviii] Id.
[xix] In 2023, 141,065 total deer were harvested in Kentucky and of those, 7,718 were taken on public land. That’s around 95% of harvested deer coming from private land. Harvest Report Explorer, Ky. Dep’t Fish and Wildlife, https://app.fw.ky.gov/harvestdata/Records/Records?animal=Deer&report=resultsTotal (last visited Apr. 1, 2024) [https://perma.cc/6JUG-JUA3] .
[xx] Jordan, supra note x.
[xxi] Id.
[xxii] Liam Niemeyer, Small Kentucky Farms are Again Exempt from Hunting, Fishing License Requirements, Ky. Lantern (Feb. 29, 2024), https://kentuckylantern.com/briefs/small-kentucky-farms-are-again-exempt-from-hunting-fishing-license-requirements/ [https://perma.cc/X5HZ-8SBL].
[xxiii] Id.; Jordan, supra note x.
[xxiv] Niemeyer, supra note xxii.
[xxv] Id.