The Orion right-to-hunt case decision

ESPN ^ | James A. Swan, Ph.D.

[neverdem]

Many states are passing right to hunt constitutional amendments. The first court decision on the amendment shows that this is the beginning of a long legal process to determine just what this law means

By James A. Swan, Ph.D. Author of "In Defense of Hunting" A dozen states across the country have recently passed constitutional amendments protecting the right to hunt and fish. Others are in the process of doing so.

This seems like an important step toward protecting the future of hunting, but it also raises the thorny legal issue of just what is "hunting?"

In 2000, Virginia voters approved a constitutional amendment: "The people have a right to hunt, fish and harvest game," subject to regulation by the state legislature, according to the Virginia Constitution.

Like a lot of hunters, Morris Peterson cheered when the 2002 Virginia constitutional amendment passed. His company, Optima Adventures International, offers a variety of custom outdoor adventures for individuals and groups, including corporate trainings in outdoor settings.

Many Optima employees love to hunt and shoot. They understood the benefits to developing self-confidence, discipline and concentration that can come from shooting sports. The amendment seemed just one more reason to create a new unique center where shooting sports could be used for corporate trainings.

With the unanimous approval of the County Planning Commission and the Board of Supervisors in 2001, the Orion Shotgun Sports Center — a division of Optima Adventures that offers hunting and wingshooting at clay targets — was launched at Oak Ridge Estate in Arrington, Va., which is in Nelson County about 125 miles south of Washington, D.C.

The center had a spotless record and was so successful that after two years expansion plans were laid out. But a long-term lease agreement could not be ironed out with the Oak Ridge owner, who was doing historic restoration work on the facilities.

The case

Peterson and Optima Adventures were about to move Orion Shotgun Sports Center to another county when the Nelson County Board of Supervisors begged them to stay. Orion had become a profitable venture, attracting many people to a rural district and offering community service support to many local groups.

After a long search, Optima located the beautiful 450-plus-acre Union Hill property in wooded rolling hills along the James River in the tiny hamlet of Wingina, which is near Lovingston, Va.

Orion was assured it could transfer the permit for a hunting preserve, so it bought the property, which includes a magnificent mansion that would serve as a corporate training center.

Soon after Orion paid several million dollars for the new Orion Estate, the County Planning Commission said Orion would have to apply for a new zoning permit for sporting clays, skeet and ZZ-bird or helice shotgun sports.

A group of local residents protested the Orion complex having a shotgun sports center, and the permit for clay target shooting was denied. Orion understandably felt betrayed.

The initial reasons for the denial included noise ordinances and lead shot management. Acoustical tests showed that gunfire sounds coming from Orion were well below the county noise standards. (A nearby coal train daily exceeded the allowable noise levels, but there apparently are no complains about the train.)

Orion developed exemplary plans for mitigation of gunfire sounds, safety and lead management. The Planning Commission would not budge. The neighbors became more vocal, accusing Orion of being a training ground for terrorists and other ridiculous claims.

Did anyone say NIMBY?

Of note is that Orion was granted permission to continue its hunting operations, and hunting is popular on farms and other property in Nelson County. It was not as if Orion complex shooting was going to take place in a city, or that some new sounds would be heard in this very rural community.

At this point some people would have sold off the property and left. Morris and Orion dug in the trenches, hired a legal team and sued Nelson County.

When you litigate someone, you have a legal basis to make a claim. Orion's legal team — headed by Steven Raynor and John Simpson of Martin & Raynor based in Charlottesville, Va., and constitutional law specialist Stephen Halbrook — felt that the County had violated the new constitutional protection of the right to hunt. This meant the Orion case became the first constitutional battle over the legal right to hunt in the United States.

In the fall of 2004, Circuit Court Judge J. Michael Gamble ruled that Orion had standing to this claim, and so the case progressed.

Orion claimed that the denial of the permit for clay target shooting violates the right to hunt, for hunting requires instruction in safety and proficiency.

Sporting clays is an ideal learning tool for bird hunting. Such training minimizes chances of firearms accidents and — by teaching how to shoot clay pigeons and other targets at different distances and angles effectively — promotes the humane harvesting of game birds.

Sporting clays, skeet and ZZ-bird, therefore are "simulated hunting," nearly identical to the pursuit of wild game and protected by the constitutional amendment, which cannot be denied by a local zoning commission.

Courtroom drama

If you've been reading my columns, you will know that I am a psychologist who has researched and written about environmental perception and the psychology of shooting sports and hunting for more than 30 years.

When it came time for the Orion to put together their expert witnesses for the trail, I was honored to be selected to the team.

The trial took place April 21-23 in the historic Lovingston courthouse, where portraits of circuit court judges dating back to the civil war era stare down on the proceedings of Judge Gamble's court.

My first reaction walking into the courtroom was that it was like a set out the movie "Anatomy of a Murder." There were 13 witnesses for Orion and none for Nelson County.

Anthony Troy, an attorney for Orion and former Virginia State Attorney General, summed up the Orion position well when he argued that hunting has changed over the last 45 years because of the loss of habitat and fewer hunters killing for food.

"There are different forms of hunting that have evolved that do not involve the killing of animals," he said.

Orion demonstrated this with testimony from fox hunters, dog trainers, coon hunters and falconers, all of whom go "hunting" and have to obey laws for hunters, even though they may never kill anything and the "game" hunted may be an object like a fox skin or a dummy bird.

Troy said shooting at sporting clays "should be embraced in the concept of hunting." The former director of the National Sporting Clays Association and several other distinguished clay target shooters took the stand to agree.

Orion's constitutional scholar, Steve Halbrook, stated:

The people have a right to hunt, fish and harvest game, subject to such regulations and restrictions as the General Assembly may prescribe by general law.

Constitutional rights are construed broadly, so the terms are defined expansively. Also, 'hunt' and 'harvest game,' while they may overlap some, also include separate components. Every word must be given meaning, and there is a presumption against redundancy.

While constitutional rights are interpreted broadly, criminal prohibitions are construed narrowly. So when the legislature makes it a crime to 'hunt' without a license, the term 'hunt' is narrowly defined to include only what the legislature defined as hunting. In the American legal system, we do not have crimes by implication.

John Zunka, an attorney for Nelson county, put it bluntly that Orion's shotgun sports center was not constitutionally protected. He argued that "hunting" is defined as the pursuit of live animals, based on the dictionary and state laws on hunting and trapping.

I was on the witness stand for 90 minutes, reviewing the research literature on the perception of noise and hunting. I described hunting as a form of sport where man has gradually evolved from killing animals to survive to participating in an annual ritual that enables modern man to experience and honor his instinctual nature.

Many modern sports are symbolic adaptations of their original nature, just as clay target shooting is a simulated symbolic act. Under a broad interpretation, clay target wingshooting could be seen as a form of "hunting," as one takes a firearm afield in pursuit of simulated animals, with the report of a broken clay being "dead bird."

I also pointed out how wingshooting develops with practice. Removing the potential to practice can impact hunting safety and accuracy.

John Zunka, the Nelson County attorney never challenged my testimony, but demanded to see my notes. Finding nothing there, he proceeded to question me at length about my being an actor, asking me about the various roles I have played in the movies.

Fred Thompson has done fairly well as a politician, actor and attorney. I almost said that in court, but one has to maintain a civil attitude in court, so I just said "yes" when he asked me about my beating up Kevin Bacon in "Murder In The First" and flirting with Jennifer Lopez in "Jack."

That evening, at the gorgeous Orion Estate, the Orion attorneys asked me if I had a theatrical headshot. I happened to have one. They told me to autograph it for Zunka. I did, with pleasure. I understand they gave it to him after the trial was over. Sweet justice!

Morris Peterson was on the stand almost two hours, finally getting a chance to give a full accounting of his frustration with local officials.

The verdict

On June 29, one day ahead of schedule, Judge Gamble issued his decision. It began:

… I find that the operation of a shotgun sports center or sporting clays facility is not a constitutionally protected right under the constitutional right to 'hunt, fish and harvest game … that a shotgun sports center and/or sporting clays facility is not a use permitted by right or an accessory use to a hunting preserve under the Nelson County Ordinance.

In other words, Nelson County could deny Orion a permit to operate clay target shooting on the 450-acre property, even though the site did not violate the noise ordinance or any other ordinances.

Ugh!

However, eight pages later, Gamble did say:

I do find that the use of sporting clays for warm-ups and safety tests in conjunction with hunts of live animals on the hunting preserve is an accessory use. … Thus, for this limited purpose, the shooting of sporting clays is allowed as an accessory act.

This means that clay target shooting is OK at Orion for eight months of the year when hunting season is open, but not the other four months of the year and, technically, not when people only want to shoot clays.

I'm no legal scholar, but what happens if someone starts out their day with a round of sporting clays, gets tired and doesn't want to go out hunting for pheasants or quail? Have they broken the law?

Suppose that someone wants to hunt crows or pigeons, nuisance species, during the summer time. That's legal hunting. Can they legally warm up for that?

Obviously, Peterson and Orion are not happy. D. Alan Nunley, Orion's corporate counsel, summed up their sentiments when he said, "While we respect Judge Gamble's decision, we are disappointed at the outcome of the trial. … Orion will weigh all of its options over the next several days to move forward in a positive direction."

Stay tuned, folks.

In the meanwhile, Peterson and Orion deserve a hunting and shooting medal of honor for standing up for the right to hunt and shoot.

For more details on the case, visit the Web sites of The Orion Estate and Steve Halbrook.

James Swan — who has appeared in more than a dozen feature films, including "Murder in the First" and "Star Trek: First Contact," as well as the television series "Nash Bridges," "Midnight Caller" and "Modern Marvels" — is the author of the book "In Defense of Hunting." Click to purchase a copy. To learn more about Swan, visit his Web site.

[Spok]

I support these 'right to hunt' laws, but I'm concerned that the right to hunt will become confused with the right to bear arms: they're two different things that must be kept separate in the mind of the public. As the bumper stickers say: "The Second Amendment Is Not About Hunting"

[Erik Latranyi]

Hunting is under assault by the same folks attacking firearm ownership with the caveat "not guns with a sporting purpose".

The left speaks out of both faces---again.

[handy old one]

The Second Amendment is not about hunting, but hunting should back the Second Amendment no holds barred.