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Right to forage

- Tue, 07 Dec 2021 14:05:08 EST KgbJ1rDs No.46903
File: 1638903908423.jpg -(309581B / 302.33KB, 1080x1200) Thumbnail displayed, click image for full size. Right to forage
Is anyone brushed up on the right to forage? I was under the impression that this is a constitutional right and supersedes other laws in regards to licenses and poaching. I remember watching a court case about a man challenging a poaching charge in regards to his fishing, claiming he was foraging to provide food. I believe the case was thrown out and he wasn't actually charged. Licenses are for sport. I know for a fact you can fish anywhere (at least in california) without a license if you're "foraging" and that fishing licenses are for "sport" fishing, but if you're using a "reel" it is defined as sport fishing, where as if you're just using a stick and line you can't be charged with anything. anyone have knowledge with foraging meat?
Lydia Blytheville - Sat, 11 Dec 2021 14:46:20 EST BAgJ64Yz No.46905 Reply
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If you want big picture overview of the law of foraging, I’d recommend you read: Baylen J. Linnekin, Food Law Gone Wild: The Law of Foraging, 45 Fordham Urb. L.J. 995 (2018), https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2740&context=ulj. If you want more in-depth understanding, follow the cites in the footnotes. What follows is not legal advice.

To address your specific question, we need to define pertinent terms. “Foraging refers to the harvest of foods which are not cultivated by man but that grow spontaneously in the wild, regardless of whether the ‘wild’ is an urban, suburban, rural, or wilderness area.” Id. at 999. This distinguishes foraging from farming and gardening. Id. As such, while picking a crab apple from a cultivated tree in a suburban backyard is not foraging, while “wandering by or through one’s own (or another’s) property in search of a wild apple tree or other food source is foraging.”

Foraging also differs fundamentally from hunting, trapping, and fishing because foraging involves no “chase.” Id. As such “gathering snails, mussels, clams, or seaweed is foraging, though a squirrel of spearing a lobster is not.” Id.

With these definitions in mind, our discussion will proceed in three parts: (1) the roots of foraging in the English/American common law tradition; (2) how the common law roots have developed into the modern and highly legislated and regulated area of law of foraging/hunting/fishing that is inextricably intertwined with environmental and wildlife preservation and conservation policy; and (3) analysis of the authority you cited in support of your impression that foraging “is a constitutional right and supersedes other laws in regards to licenses and poaching.”

  1. Roots of Foraging Law in the English/American Common Law Tradition

Linnekin observes that “p to and including Independence, American colonists enjoyed broad foraging rights not just in the commons but also on others’ private lands” based on the recognized liberty “to use the open land” Id. at 1009-10 (internal quotation marks omitted). The right to use the land, whether for foraging, hunting, fishing, or otherwise, have never been recognized as absolute. Id. at 1010. Thus since at least the 1800s, American law has regulated against foraging on “improved lands” like farms, vineyards, and orchards. Id. However, as more and more Americans began moving into urban centers after Independence, the strength of foraging laws likewise declined. See id. Linnekin posits that “[t]he history of early American anti-foraging rights typically grounded their efforts in racism, classism, colonialism, imperialism, or some combination” of all these drivers. Id. at 1011. See id. at 1011-14 for additional commentary on how Linnekin believes anti-foraging laws may have roots in targeting African-American, Native Americans, and Rural Americans for the benefit of wealthy landowners.

2. Modern Regulation of Foraging in the United States

Because the act of foraging (and hunting/fishing) is inextricably intertwined with environmental and wildlife conservation, it exists within the penumbra of federal, state, and local law and regulation. For example, in New York, the City of New York has an ordinance on the books that prohibits the destroying, cutting, or pruning trees, or severing or removing plant vegetation in New York City Parks. See N.Y.C., RULES OF THE CITY OF NEW YORK tit. 56 § 1-04(b)(1)(i)-(ii) (2017). This is commonly interpreted as New York City’s anti-foraging law.

In contrast, in Alaska, pursuant to Alaska’s “Subsistence Statute,” it is lawful to engage in the “noncommercial customary and traditional uses of wild, renewable resources by a resident domiciled in a rural area of the state for direct personal or family consumption of food.” Alaska Stat. Ann. § 16.05.940 (2000). However, even the statutory right to subsistence foraging in Alaska remains subject to restriction and regulation by the State of Alaska. See Alaska Fish & Wildlife Conservation Fund v. State of Alaska Dep’t of Fish & Game, 289 P.3d 903, 908 (Alaska 2012).

The takeaway is that the state of the law of foraging is completely dependent on the area - areas with more rural land tend to have broader rights to foraging than highly urban areas. Furthermore, any residual liberty interest in foraging in the United States is subject restriction and regulation.

3. Analysis

Having considered the roots and modern structure of foraging law in the United States, we now turn to your specific question regarding foraging as a constitutional right.

In support of your assertion that foraging “is a constitutional right and supersedes other laws in regards to licenses and poaching” you cite three sources of authority: (1) Article 1, Section 25 of the California Constitution; (2) Murdock v. Com. of Penn., 313 U.S. 105 (1943); and (3) Shuttlesworth v. City of Birmingham Ala., 394 U.S. 147 (1969).

Before we consider these authorities further, we must highlight that neither of the quotations attributed to the Court in your attachment are found in those cases. Furthermore, the citation to the United States Reporter for the Shuttlesworth case is also wrong - Shttlesworth is found at 394 U.S. 147, not 399 U.S. 147.

Because you cited the California Constitution, we will assume you are a resident of California and limit our discussion to the nature and extent of the right conferred to Californians under Article 1, Section 25 of the California Constitution.

Pursuant to Article 1, Section 25:

The people shall have the right to fish upon and from the public lands set aside for fish hatcheries, and no land owned by the State shall ever be sold of transferred without reserving in the people the absolute right to fish thereupon; and no law shall ever be passed making it a crime for the people to enter upon the public lands within this State for the purpose of fishing in any water containing fish that have been planted therein by the State; provided, that the legislature may by statute, provide for the season when and the conditions under which different species of fish may be taken.

This constitutional provision confers multiple discrete rights: (1) people have a general right to fish on public lands; (2) the State may not sell any public land without the terms of the sale including a covenant for the people to fish on that land; (3) no laws can be passed making it a crime to cross land needed to get to fishing areas; (4) the state may regulate fishing, including regarding the season, conditions, and species that may be harvested.

California courts that have interpreted this constitutional provision have made the following pertinent holdings:

The provision of the California Constitution conferring a right to fish does not elevate to the level of a “fundamental right” for purposes of the Equal Protection clause of the United States Constitution as the provision expressly authorizes state regulation of fishing, thus creating only a “qualified right” to fish. Cal. Gillnetters Ass. V. Dep’t of Fish & Game, 46 Cal.Rptr. 338, 342-43 (Cal. App. 1995). Subject only to constitutional limitations against discrimination, the California legislature, to conserve and protect fish, may pass laws as it seems wise to conserve fish and game. People v. Monterey Fish Products Co., 234 P. 398 403-04 (Cal. 1925). The right to fish in California is a privilege granted by the State, and may be taken away in the exercise of its police power. Paladini v. Superior Court, 173 P. 588, 590 (Cal. 1918).

Neither Shuttlesworth nor Murdock are relevant in understanding the scope of the right to fish in California. Shuttlesworth is a First Amendment case involving an ordinance requiring an individual to obtain a license to participate in a parade, procession, or other public demonstration. 394 U.S. at 149-51. The First Amendment, unlike the right to fish in California, is indisputably a fundamental right subject to far stricter constitutional scrutiny as it relates to regulations abridging the right thereto. As a result, Shuttlesworth does not apply to your question.

Similarly, Murdock also involves the regulation of fundamental rights, i.e., freedom of religion and distribution of religious materials door-to-door using a phonograph to play accompanying audio. 319 U.S. at 106-08. The Court in Murdock held that requiring religious members to pay a licensing fee that was more than nominal to engage in distribution of religious material infringed on religious members’ First Amendment rights. Id. at 115-17. As a result, for the same reason indicated with regard to Shuttlesworth, Murdock does not apply to your question.

With this analysis in mind, there is no authority in support of the proposition that Article 1, Section 25 of the California Constitution confers a right that supersedes all other laws to fish and forage on public lands in California. While this analysis did not delve into hunting specifically, it is safe to assume from the fact that there is no constitutional right to hunt in California that hunting constitutes a fundamental right in California either. As such, for better or worse, the ultimate authority on the scope of the qualified right to fish and privilege to hunt in California will be governed principally by California Game & Fish statutes and regulations. There will likely be some situations in which a license is not required to hunt or fish certain types of wildlife, but again the scope of such rights and privileges are governed by the California police power.


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