The Nelson Amendment (E.702.1)

Abstract

Wildlife management in Vermont has been the focus of significant public and political debate in the last few years. In 2009, “Pete the Moose,” a young moose calf living within a privately-owned, 700-acre captive game facility in Irasburg, VT, became the central figure in a debate over whether a private party could possess any ownership interest in wildlife animals. Pete was the focus of a grassroots campaign to prevent his allegedly imminent destruction (along with other moose and white-tailed deer living within the facility’s fences) by Vermont Fish and Wildlife Department officials. The campaign received extensive local and national media. This position paper, submitted as public record in the February, 2011 House of Representatives Fish & Wildlife Committee Debate, is about the Vermont legislature’s 2010 election-year response to the “Save Pete the Moose” campaign. The fight to save Pete and the subsequent legislation invoke important traditional and contemporary issues of property rights, hunting rights, and animal rights, including the privatization and domestication of wildlife, the importation of big game into Vermont, and the ethics of allowing such facilities to operate in this state. This legislation, known as the “Nelson Amendment,” was enacted, without discussion, as part of the fiscal year 2011 Joint Appropriations Act. The Amendment may have “stayed” Pete’s demise, but it eroded fundamental principles of wildlife management and hunting regulations by effectively rewarding a private landowner’s continued attempts to thwart wildlife regulations and illegally entrap wild animals on his property. The facility where Pete lives and the Amendment threaten the health of wildlife in Vermont and the state’s authority to manage and regulate that wildlife. This paper contextualizes the current debate about wildlife management, including the history of Vermont captive hunting legislation and the legal backdrop prior to the Nelson Amendment. Next, it addresses state common law and constitutional doctrines with respect to wildlife management, hunting rights, and wildlife ownership, followed by a discussion of several legal and policy issues invoked by the Amendment, and issues the legislature should consider in reviewing the current bill to repeal the Nelson Amendment (H.91).ADDENDUM (June 22, 2011) On May 31, 2011, Governor Shumlin signed H.91 into law, amending 10 V.S.A. section 4081. In addition to repealing the Nelson Amendment, section 4018 codified the public trust doctrine Vermont. In relevant part: Section 4081. POLICY(a) It is the policy of the state that the (1) As provided by Chapter II, section 67of the Constitution of the State of Vermont, the fish and wildlife of Vermont are held in trust by the state for the benefit of the citizens of Vermont and shall not be reduced to private ownership. The state of Vermont, in its sovereign capacity as a trustee for the citizens of the state, shall have ownership, jurisdiction, and control of all of the fish and wildlife of Vermont.