Legislators Debate Should Hunting Be Privilege Or Right In State?
Montana voters could be faced with a nuanced decision next year: Is hunting in Montana a right or a privilege?
House Bill 372, which would make hunting, as well as fishing and trapping, a right protected by the Montana Constitution, is in its final stretch in the Montana Legislature, with a crucial Senate committee hearing set for April 13. Because the bill seeks to amend the constitution, the issue would be put to voters on election day in 2024 and to do that, it needs a supermajority, or two-thirds of the legislature to approve it. The House of Representatives passed it 64-34 earlier this month, leaving it needing at least 36 of 50 senators to vote for it. The bill passed on party lines in the House. Republicans would need to pull four Democratic votes in the Senate for the bill to go to voters.
Rep. Paul Fielder, R-Thompson Falls, is sponsoring HB 372, which is one of 19 constitutional amendments introduced at the 68th Montana Legislature. In addition to adding the right for individuals to hunt, fish and trap to the state constitution it would also make those the preferred method of the conservation and management of wildlife in Montana. Jennifer Fielder, Fielder’s wife and a former senator, proposed a bill in the 2017 session to amend the constitution to include the right to hunt, fish and trap, but it died in the House on a 38-62 vote. This session, Republicans hold an unprecedented so-called two-thirds supermajority of the seats in the Legislature.
As Montana grows, supporters of the bill say they worry that out-of-state interests are gunning for Montanans’ ability to hunt, trap and fish. Opponents of the bill question making hunting the main form of wildlife conservation across the state and are raising concerns about the ramifications of giving residents the right to do something that they view as a privilege. At a House hearing in March, several agriculture organizations also opposed the bill with worries about how a right to hunt would conflict with the rights of property owners, especially when it comes to stream and land access.
Fielder said the bill has five things that need to be understood when the legislature and public votes on it including that: It gives citizens the unalienable right to hunt, fish and trap; It does not create a right of public trespass on private property or diminish private property rights; It does not affect the ability to divert, appropriate, use or establish a minimum of any water; The state will give preference to hunting, fishing and trapping by citizens as the primary means of controlling wildlife; and it also gives the right under the necessary management of statutes enacted by the legislature and Montana law.
“Citizens have the right to hunt, fish and trap including the use of current means and methods, and that’s the keyword there. That means that whatever is on the books stays on the books, if we can do it now, we can do it in the future,” Fielder said.
According to the National Conference of State Legislatures, currently 21 states guarantee the right to hunt and fish in their constitutions, with Vermont being the first to guarantee the right in 1777, and Kansas being the most recent to join the club in 2016. Montana is listed as a state that already includes the right to hunt and fish, dating back to 2004 with the constitution’s Heritage Clause, which preserves the heritage of collecting wild game and fish. That amendment was approved by 80.6 percent of voters.
Fielder said people may argue a right to hunt is not necessary in the constitution because of that clause. But, he said a clause compared to a right is “weak” and more needs to be done to protect residents’ ability to participate in hunting, fishing and trapping across the state.
Mac Minard, executive director of the Montana Outfitters and Guides Association, said his group has been in strong support of the proposed amendment since it was introduced in subcommittees prior to the session.
“Outfitting in the state of Montana is the fourth largest economic driver of non-resident spending. It’s only behind food, fuel and lodging, and I think we can agree that people don’t come here to sleep, drive and eat,” Minard said. “Our basic mission boils down to conservation service, and sometimes you have to do things that are bigger than yourself. HB 372 has a bearing on the outfitting industry, that’s true, but this is part of a much larger discussion and for that reason MOGA has joined many other organizations in support of this.”
Minard echoed Fiedler and said organizations in the conservation and wildlife field have had to come together because there is a growing increase in citizen initiatives throughout the United States that have sought to limit or eliminate hunting, fishing and trapping.
They both cited the 1990 California Wildlife Protection Act, which legally classified mountain lions as a “specially protected mammal” in the state that couldn’t be hunted for sport or recreation. In 2018, New Jersey’s governor signed a bill into law that eliminated the hunting of black bears on state land, a ban that was rescinded in 2022.
Minard said similar legislation is popping up all over the country to directly attack hunters. In 2016, a citizen ballot initiative, I-117, aimed to ban trapping on public lands in Montana, but was voted down on a vote of 63-37%. Minard said conservation organizations spent about $500 million across the state fighting against that bill during the election cycle.
“The demographics in Montana are changing rapidly. We’re getting more and more people, who are not immersed in the Montana heritage, coming into Montana and then wanting to dictate changes, largely to the rural communities,” Minard said. “Why would we want to let out of state interest and new residents not entrenched into the heritage yet dictate the rules of our state?”
Rep. Marilyn Marler, D-Missoula, the co-chair of the Sportsman Caucus at the Montana Legislature, spoke against the bill during the floor debate, saying it is unnecessary and could have undesired effects to the way wildlife is managed in the state. She also spoke about the impacts of having a “right” to hunt versus a “privilege.”
“It’s important to recognize that in Montana hunting’s a privilege. Privileges can be taken away. If you’re a poacher or some other kind of criminal, your hunting privileges can be taken away, and we also have the ability to put sidebars on regulating seasons, etcetera,” Marler said.
Marler also raised questions about the amendment’s ability to protect private property rights if passed. She said she has heard concerns from law enforcement agencies about people having the right to hunt, fish and trap and the issues that could create when enforcing trespassing laws.
“I don’t think this is necessary and it poses two points I want to hammer home: It does pose a threat to law enforcement. I’ve heard from several people about that. Also, a problem is that it specifies taking animals is the primary or only way of wildlife management,” Marler said. Marler said hunting is an important part of wildlife management in the northwestern United States, but it should not be the primary or only way of managing wildlife.
Rep. Laurie Bishop, D-Livingston, also opposed the bill, echoing Marler’s statements on creating rights where they shouldn’t be. She also said there are rights that supersede the right to hunt that the Legislature hasn’t addressed properly yet.
“When anything creates a right, that right supersedes all, and I think when you consider rights that I think are really important … I think that we have rights that I would see as important like non-discrimniation against the LGBTQ community that we haven’t even been able to know that we have secured,” Bishop said. “A right really means that once you’ve created that right anything else that might infringe upon it takes a second seat.”
Bishop said she shares concerns over hunting, fishing and trapping becoming the primary means of conservation because it creates a radical change across the state in the way that it manages wildlife currently.
“I think that this would further compromise where we are as a state in our wildlife management,” Bishop said.
Fielder responded to both Bishop and Marler during the bill’s debate on the House floor. He said this bill is necessary for Montanans and that it should not be a party issue.
“I hate to see this be a party- line vote. I hate to see it come out that all of one party was against the citizen’s right to hunt, fish and trap, but that’s the way it seems to go in the past and right now,” Fielder said. “There’s 97 co-sponsors on this bill, it’s very well supported, but it seems to be supported by one party and that’s a shame.”
In the House, all 30 Democrats in attendance and four Republicans voted against the bill. For the bill to reach the supermajority mark and end up on the ballot, 36 Senators need to approve it. All 32 Republican Senators would need to vote yes and at least four Democrats.