In other words, legal title to wild game only passes to an individual when the game is legally taken. Until that time, title remains with the state, and the state can confiscate any game unlawfully taken. This declaration of sovereignty is common to all 50 states and is the statutory expression of the legal principle that dates back to the early days of the English monarchy.
Although it is not so described in the statutes, the state's title to wild animals is often described in court cases as a trust for the benefit of the people. The Legislature, as the representative of the people, is charged with the authority to manage this trust. The Legislature has delegated the administrative responsibilities regarding wild animals primarily to the Department of Natural Resources (DNR). Most of the statutory authority of the DNR with respect to wild animals is contained in ch.
29, Stats., and DNR has implemented its authority by adopting extensive administrative rules.
The basic authority of the DNR to regulate fish and game is set forth in s.
29.014 (1), Stats., which provides as follows:
29.014 (1) The department shall establish and maintain open and closed seasons for fish and game and any bag limits, size limits, rest days and conditions governing the taking of fish and game that will conserve the fish and game supply and ensure the citizens of this state continued opportunities for good fishing, hunting and trapping.
There are very few appellate court cases in Wisconsin regarding fish and game regulation. However, the Wisconsin case of Krenz v. Nichols, decided in 1928, is typical of the state court's approach to fish and game cases. In this case, the Wisconsin Supreme Court reviewed the state's regulation of muskrat farms. In its decision in favor of the state, the court gave great deference to the Legislature in its regulation of fish and game.
As trustee for the people, the state may conserve wild life and regulate or prohibit its taking in any reasonable way it may deem necessary for the public welfare, so long as it does not violate any organic law of the land.
. . .
It is now generally recognized that valuable wild animal life would soon be exterminated if the state should fail to conserve it and aid in its reproduction. Whenever the state has done so without trenching on private rights protected by the Constitution, such acts have been almost uniformly upheld.
. . .
Nearly every conceivable regulation for the propagation, conservation, taking, and disposal of fish and game has been upheld where no constitutional objections have stood in the way. Generally, courts have given very liberal construction to such statutes, to the end that the public welfare should be subserved. [222 N.W. 300, 303, 197 Wis. 394 (1928).]
Constitutional Interpretation
Like statutes, constitutions are subject to judicial interpretation. Some of the tools used by courts in constitutional cases are known as "rules of interpretation." These rules are similar to the rules for statutory interpretation, but have other dimensions due to the constitutional context.
It is important to note that these are not "rules " in the conventional sense of that word. This is rather a term that lawyers use loosely to describe what could more accurately be described as an approach to analyzing the constitutional issue. Courts are not bound to follow these rules, although these rules are commonly applied in court decisions.
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The express purpose of these rules of interpretation is to allow courts to implement the will of the drafters of a constitutional provision and the will of the voters who ratified it. To the extent that a court interprets a constitutional provision, it may choose not to follow the literal meaning of that provision. The flexibility that courts have when applying the rules of interpretation potentially puts legislators and electors in the position of voting for a constitutional amendment when it cannot be known how courts might ultimately decide a case arising under the proposed amendment.
The following are some examples of constitutional rules of interpretation:
Unless a provision is ambiguous, the plain meaning prevails. If there is no ambiguity, the court may choose not to consider any evidence outside of the constitutional language at issue. Senate Joint Resolution 2 does not appear to be ambiguous, in the sense that it can be read in two different ways. However, the Joint Resolution is vague in the sense that it does not precisely define the scope of the right. This may lead a court to claim that it is ambiguous (because ambiguity and vagueness are frequently mixed), and resort thereafter to other evidence of meaning.
Avoid absurd results. The issue of absurd results often arises when fact situations are presented to the court that were not envisioned by the drafters, or when there is a conflict between constitutional provisions.
Extrinsic evidence related to adoption. Courts may review the legislative history surrounding adoption of a constitutional provision to determine what was intended by the Legislature.
Extrinsic evidence related to legislation on the same subject. Courts may look to legislation interpreting constitutional provisions or to legislation that is adopted contemporaneous to the constitutional provision to determine intent.
Comments on 2001 Senate Joint Resolution 2
The following are some observations regarding potential judicial interpretation of Senate Joint Resolution 2, as amended. These observations are expressed in terms of how the text of the Joint Resolution or certain evidence related to the Joint Resolution might influence the decision of a court. I have not assumed that a court might make an unexpected or unusual decision, although this is always a possibility.
Plain meaning of the Joint Resolution. The Joint Resolution clearly does not create an absolute right to hunt and fish. The "right to fish, hunt, trap and take game" is qualified in the Joint Resolution by the language that follows: "subject only to reasonable restrictions as prescribed by law." Although the Joint Resolution creates a right, at the same time it authorizes the Legislature and its agent, the DNR, to regulate that right. Therefore, the language in the Joint Resolution clearly acknowledges that regulation of hunting, fishing, trapping and taking game will continue.
Absurd results. Courts typically refer to rights created in the constitution as "fundamental rights." Fundamental constitutional rights are those that have an essential value to individual liberty in our society. When a court determines that a particular constitutional right meets this description, the court will often apply one of the higher standards of judicial review. Restrictions on many of the fundamental constitutional rights are subject to strict scrutiny, wherein the court will not apply a presumption of constitutionality to the legislation. The state, to defend the regulation, must show that the regulation is intended to achieve a compelling governmental interest and the regulation is narrowly tailored to serve that interest. This would make it very difficult for the state to defend most fish and game regulation. However, the Joint Resolution allows reasonable restrictions. It could be considered an absurd result for a court to acknowledge that regulation of the right is permissible, but to make it extremely difficult for the state to regulate.
A more balanced approach, that harmonizes both the right and the regulation under the Joint Resolution, would be for the court to choose the intermediate standard of review. Regulations subject to the intermediate standard of review are given a presumption of constitutionality. Regulations must serve "significant" governmental interests, as contrasted with "compelling" governmental interests under the strict scrutiny standard. Regulations must be narrowly tailored, but not necessarily the least restrictive, and must leave open ample opportunities for citizens to exercise the right. Furthermore, even though a constitutional right is a fundamental right, courts recognize that not all burdens on fundamental rights bear heightened scrutiny. Some burdens may be sufficiently minor that they may be reviewed under the rational basis standard.
Additional absurd results. As noted in Krenz, the ongoing availability of wild animals to hunt and fish depends on state regulation to conserve the fish and game. It could be considered an absurd result if the Joint Resolution could be used to negate a substantial amount of hunting and fishing regulation, if the result was to restrict game management authority and thus destroy the very activity that the Joint Resolution was intended to protect.
"Reasonable restrictions" are authorized. This choice of language is important. Such restrictions could include the conservation of wild animals, as well as any other issues of public health, safety or welfare. This language should allow courts to approve regulations that respond to broader social issues, as well as conservation and game management. Social regulations are common in current fish and game regulations. For example, the nine-day deer gun season has no basis in deer herd management, but rather is based on tradition and public preference -a "social" regulation. Similarly, trophy size limits respond to angler preference rather than to fish management.
Judicial precedent. Courts strongly tend to follow precedent in constitutional cases. The adherence to precedent increases the certainty that is provided by law. The Krenz case, cited above, is part of the Wisconsin precedent in fish and game law. This precedent suggests that courts are likely to make only modest changes to the standards for review of fish and game regulation, in that a substantial degree of judicial deference continues to be consistent with Senate Joint Resolution 2, as amended.
Legislative history. I am unaware of any legislative history suggesting that the Joint Resolution is intended to restrict or negate any of the current fish and game regulations.
Contemporaneous legislation. Senate Bill 45 and Assembly Bill 190 would prohibit the hunting of mourning doves. The outcome of legislative debate on these bills may suggest in part what is the Legislature's intent regarding the constitutional amendment. With the exception of these two bills, the Legislature is not considering any other legislation that would curtail any current hunting or fishing opportunities.
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If I can provide further information on this subject, please feel free to contact me.
The question was: Shall Assembly substitute amendment 1 to Senate Joint Resolution 2 be concurred in?
The ayes and noes were demanded and the vote was: ayes, 32; noes, 1; absent or not voting, 0; as follows:
Ayes - Senators Baumgart, Breske, Burke, Chvala, Cowles, Darling, Decker, Ellis, Erpenbach, Farrow, S. Fitzgerald, George, Grobschmidt, Hansen, Harsdorf, Huelsman, Jauch, A. Lasee, Lazich, M. Meyer, Moen, Moore, Panzer, Plache, Robson, Roessler, Rosenzweig, Schultz, Shibilski, Welch, Wirch and Zien - 32.
Noes - Senator Risser - 1.
Absent or not voting - None.
Concurred in.
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Senate Bill 5
Relating to: reimbursement of emergency response teams and granting rule-making authority.
Read a second time.
The question was: Adoption of Senate amendment 1 to Senate Bill 5?
Adopted.
Ordered to a third reading.
Senator Chvala, with unanimous consent, asked that the bill be considered for final action at this time.
Senate
Bill 5
Read a third time and passed.
Senate Bill 9
Relating to: revising the Uniform Commercial Code Secured Transactions and related statutes and granting rule-making authority.
Read a second time.
The question was: Adoption of Senate substitute amendment 1 to Senate Bill 9?
Adopted.
Ordered to a third reading.
Senator Chvala, with unanimous consent, asked that the bill be considered for final action at this time.
Senate
Bill 9
Read a third time.
The ayes and noes were required and the vote was: ayes, 33; noes, 0; absent or not voting, 0; as follows:
Ayes - Senators Baumgart, Breske, Burke, Chvala, Cowles, Darling, Decker, Ellis, Erpenbach, Farrow, S. Fitzgerald, George, Grobschmidt, Hansen, Harsdorf, Huelsman, Jauch, A. Lasee, Lazich, M. Meyer, Moen, Moore, Panzer, Plache, Risser, Robson, Roessler, Rosenzweig, Schultz, Shibilski, Welch, Wirch and Zien - 33.
Noes - None.
Absent or not voting - None.
Passed.
Senate Bill 97
Relating to: issuance of bonus deer hunting permits to certain farm owners who are engaged in the production of maple syrup.
Read a second time.
Senator Burke, with unanimous consent, asked that Senate Bill 97 be referred to the Joint Committee on Finance.
Senator Burke, with unanimous consent, asked that the rules be suspended and that Senate Bill
97 be withdrawn from the Joint Committee on Finance and taken up at this time.
Read a second time.
The question was: Adoption of Senate amendment 1 to Senate Bill 97?
Adopted.
Ordered to a third reading.
Senator Chvala, with unanimous consent, asked that the bill be considered for final action at this time.
Senate
Bill 97
Read a third time and passed.
Senate Bill 102
Relating to: the prohibition against underage persons entering or being on any premises operating under an alcohol beverage license.
Read a second time.
Ordered to a third reading.
Senator Chvala, with unanimous consent, asked that the bill be considered for final action at this time.
Senate
Bill 102
Read a third time.
The ayes and noes were demanded and the vote was: ayes, 23; noes, 10; absent or not voting, 0; as follows:
Ayes - Senators Baumgart, Breske, Burke, Chvala, Darling, Decker, Erpenbach, S. Fitzgerald, George, Grobschmidt, Hansen, Jauch, M. Meyer, Moen, Moore, Plache, Risser, Robson, Schultz, Shibilski, Welch, Wirch and Zien - 23.
Noes - Senators Cowles, Ellis, Farrow, Harsdorf, Huelsman, A. Lasee, Lazich, Panzer, Roessler and Rosenzweig - 10.
Absent or not voting - None.
Passed.
Senate Bill 110
Relating to: polling hours, time off from work for service as an election official, training of election officials, voting by felons and immigrants, requiring studies and recommendations with regard to voter registration and multilingual voting needs, establishing satellite stations for purposes of conducting voter registration and absentee voting, and granting rule-making authority.
Read a second time.
Senator Chvala, with unanimous consent, asked that Senate Bill 110 be placed after Assembly Bill 321 on the calendar of May 8, 2001.
