Legislative H-91


2011 Page 1 of 9 VT LEG 260502.1


 Introduced by Representatives Deen of Westminster, Webb of Shelburne,

 Andrews of Rutland City, Atkins of Winooski, Bohi of

 Hartford, Botzow of Pownal, Branagan of Georgia, Browning

 of Arlington, Consejo of Sheldon, Dickinson of St. Albans

 Town, Donahue of Northfield, Donovan of Burlington, Evans

 of Essex, Fisher of Lincoln, Gilbert of Fairfax, Grad of

 Moretown, Helm of Fair Haven, Jerman of Essex, Keenan of

 St. Albans City, Kitzmiller of Montpelier, Klein of East

 Montpelier, Koch of Barre Town, Krebs of South Hero, Lenes

 of Shelburne, Martin of Wolcott, McCullough of Williston,

 Mrowicki of Putney, Nease of Johnson, Potter of Clarendon,

 Pugh of South Burlington, Taylor of Barre City, Till of Jericho,

 Townsend of Randolph, Waite-Simpson of Essex and Wilson of


 Referred to Committee on


 Subject: Fish and wildlife; management of wildlife

 Statement of purpose: This bill proposes to declare that 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 bill would also declare that

the fish and wildlife of Vermont are owned and controlled 1 by the state in its

 sovereign capacity as the trustee for the citizens of the state. The bill would

 repeal the regulatory authority of the agency of agriculture, food and markets

 over the wild cervidae at a captive cervidae farm in Irasburg. Regulatory

 authority over the wild cervidae at the Irasburg facility would be transferred to

 the department of fish and wildlife. In addition, the bill would make

 permanent the transfer to the fish and wildlife board of regulatory authority

 over the state deer herd by repealing the reversion of such authority to the

 general assembly.

 An act relating to the management of fish and wildlife

 It is hereby enacted by the General Assembly of the State of Vermont:


 The general assembly finds and declares:

 (1) The protection, propagation, control, management, and conservation

 of the wildlife of Vermont are in the best interest of the public.

 (2) Exposure of wildlife to domestic animals, as that term is defined in

 6 V.S.A. § 1151, increases the risk that a disease or parasite, such as chromic

 wasting disease, is introduced into or spread to the wildlife of Vermont.

(13) To prevent the introduction or spread of 1 a disease or parasite to the

 wildlife of Vermont, white-tailed deer and moose should not be entrapped in

 facilities that contain domestic animals.

 (4) If white-tailed deer or moose is entrapped in a facility that contains

 domestic animals, the owner of the facility should consult with the department

 of fish and wildlife or the agency of agriculture, food and markets in order to

 determine the best method for complying with relevant state rules regarding

 removal of the entrapped white-tailed deer or moose.

 (5) To preserve the health of the wildlife of Vermont, all owners of

 facilities with domestic animals should remove entrapped white-tailed deer or

 moose and work to prevent future entrapment.

 Sec. 2. 10 V.S.A. § 4081 is amended to read:

 § 4081. POLICY

 (a) It is the policy of the state that the (1) As provided by Chapter II,

 Article 67 of the Vermont Constitution, 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.

 (2) The commissioner of fish and wildlife shall manage and regulate the

 fish and wildlife of Vermont in accordance with the requirements of this part

and the rules of the fish and wildlife board. The 1 protection, propagation

 control, management, and conservation of fish, wildlife, and fur-bearing

 animals in this state is in the interest of the public welfare, and that

 safeguarding of the state, through the commissioner of fish and wildlife, shall

 safeguard this valuable resource for the people of the state requires a constant

 and continual vigilance.

 (b) Notwithstanding the provisions of section 2803 of Title 3 V.S.A.

 § 2803, the fish and wildlife board shall be the state agency charged with

 carrying out the purposes of this subchapter.

 (c) An abundant, healthy deer herd is a primary goal of fish and wildlife

 management. The use of a limited unit open season on antlerless deer shall be

 implemented only after a scientific game management study by the fish and

 wildlife department supports such a season.

 (d) Annually, the department shall update a scientific management study of

 the state deer herd. The study shall consider data provided by department

 biologists and citizen testimony taken under subsection (f) of this section.

 (e) Based on the results of the updated management study and citizen

 testimony, the board shall decide whether an antlerless deer hunting season is

 necessary and if so how many permits are to be issued. If the board determines

 that an antlerless season is necessary, it shall adopt a rule creating one and the

 department shall then administer an antlerless program.

(f) Annually, the department shall hold regional 1 public hearings to receive

 testimony and data from concerned citizens about their knowledge and

 concerns about the deer herd. The board shall identify the regions by rule.

 (g) If the board finds that an antlerless season is necessary to maintain the

 health and size of the herd, the department shall administer an antlerless deer

 program. Annually, the board shall determine how many antlerless permits to

 issue in each wildlife management unit. For a nonrefundable fee of $10.00 for

 residents and $25.00 for nonresidents a person may apply for a permit. Each

 person may submit only one application for a permit. The department shall

 allocate the permits in the following manner:

 (1) A Vermont landowner, as defined in section 4253 of this title, who

 owns 25 or more contiguous acres and who applies shall receive a permit for

 antlerless hunting in the management unit on which the land is located before

 any are given to people eligible under subdivision (2) of this subsection. If the

 land is owned by more than one individual, corporation or other entity, only

 one permit shall be issued. Landowners applying for antlerless permits under

 this subdivision shall not, at the time of application or thereafter during the

 regular hunting season, post their lands except under the provisions of section

 4710 of this title. If the number of landowners who apply exceeds the number

 of permits for that district, the department shall award all permits in that

 district to landowners by lottery.

(2) Permits remaining after allocation pursuant 1 to subdivision (1) of this

 subsection shall be issued by lottery.

 (3) Any permits remaining after permits have been allocated pursuant to

 subdivisions (1) and (2) of this subsection shall be issued by the department for

 a $10.00 fee for residents. Ten percent of the remaining permits may be issued

 to nonresident applicants for a $25.00 fee.



 (a) 10 V.S.A. §§ 4743 (relating to muzzle loader season), 4744 (relating to

 bow and arrow season), and 4753 (relating to annual deer limit), as suspended

 by Sec 5(a) of No. 136 of the Acts of the 2003 Adj. Sess. (2004) § 5(a) and by

 Sec. 2 of No. 97 of the Acts of the 2007 Adj. Sess (2008), shall be repealed

 July 1, 2011.

 (b) Sec. 7(c) (repeal of transfer to the fish and wildlife board of

 management authority over deer herd) of No. 136 of the Acts of the 2003 Adj.

 Sess. (2004), as amended by No. 97 of the Acts of the 2007 Adj. Sess (2008),

 shall be repealed July 1, 2011.



 Sec. E.702.1 of No. 156 of the Acts of the 2009 Adj. Sess. (2010) (transfer

 of regulatory oversight over captive cervidae facility to the agency of

 agriculture, food and markets) is repealed.


 (a) For purposes of this section, "relevant captive hunt facility" shall mean

 a captive cervidae facility subject to the requirements of Sec. E.702.1 of

 No. 156 of the Acts of the 2009 Adj. Sess. (2010) prior to repeal under Sec. 3

 of this act.

 (b) Upon repeal of Sec. E.702.1 of No. 156 of the Acts of the 2009 Adj.

 Sess. (2010) under Sec. 3 of this act, the jurisdiction and regulatory authority

 over a relevant captive hunt facility is transferred from the agency of

 agriculture, food and markets to the department of fish and wildlife.

 (c) Upon transfer of jurisdiction and regulatory authority to the department

 of fish and wildlife under subsection (b) of this section, a relevant captive hunt

 facility shall be required to comply with the department of fish and wildlife's

 rule governing the importation and possession of animals for taking by

 hunting, except that:

 (1) upon transfer of regulatory authority to the department of fish and

 wildlife, a relevant captive hunt facility that is complying with the

requirements of Sec. E.702.1 of No. 156 of the 1 Acts of the 2009 Adj. Sess.

 (2010) and the agency of agriculture, food and markets' rules governing

 captive cervidae shall be deemed to be in substantial compliance with the

 department of fish and wildlife's rule governing the importation and

 possession of animals for taking by hunting;

 (2) wild cervidae entrapped at the captive facility shall remain at the

 facility until the owner of a relevant captive hunt facility and the commissioner

 of fish and wildlife agree to a final disposition of the wild cervidae entrapped

 at the facility;

 (3) the owner of a relevant captive hunt facility shall not allow wild

 cervidae at the facility to escape or be released from the facility;

 (4) the wild cervidae entrapped at a relevant captive hunt facility shall

 be subject to hunt during an applicable season set by the fish and wildlife

 board, provided that no fee is charged for the right to hunt wild cervidae

 entrapped in the facility and provided that the owner of the facility may post

 his or her land according to 10 V.S.A. § 5201 and may restrict access for

 hunting to the facility.


 (a) This section and Secs. 1 (findings), 4 (repeal of transfer of regulatory

 authority over captive cervidae facility) and 5 (transition of regulatory

authority over captive cervidae facility) of this 1 act shall take effect upon


 (b) Secs. 2 (policy for management of fish and wildlife) and 3 (repeal of

 dormant deer herd management statutes) shall take effect on July 1, 2011.

H.91 Position Statement

February 2011


The Vermont Bearhound Association's (VBA) position is to express our strong concern regarding the transfer of native wildlife held in trust by the Vermont Fish & Wildlife Department for all citizens of Vermont, to private ownership through the Fiscal Year 2011 appropriations bill (H.789). Section B.702.1(9) of this bill contains language that transfers regulatory authority of illegally taken native deer and moose from the Vermont Fish & Wildlife Department to the Agency of Agriculture, Food and Markets and permits an individual citizen, Mr. Doug Nelson, to own those wild animals, that rightfully belong to all the citizens of Vermont.  This unprecedented giveaway of public wildlife resources to a single individual for personal gain is likely to have negative implications on wildlife management within Vermont and beyond.

 The VBA was founded in 1976.  The VBA mission is to represent and serve wildlife professionals, scientist, technicians, and practitioners actively working to study, manage and conserve native and desired non-native wildlife and their habitats worldwide.

 Ever since the United States Supreme Court ruled in 1842 that the public in New Jersey had a common right to take oysters and fish in navigable and tidal waters because they were the property of the public and not of the landowner who owned the shoreline, the concept of public ownership of wildlife has underpinned the management of wildlife resources in U.S. law.  This concept has been strengthened and expanded over the past century and a half and enshrined in many state constitutions.  If one landowner can be given ownership of Vermont's wildlife, how will you deny others that make similar requests?  The Public Trust Doctrine establishes a trustee relationship of government to hold and manage wildlife and fish for the benefit of the resources and the public, its beneficiary.  Inherent in the Public Trust Doctrine is the notion that natural resources are important to the lives of the people and owned by the public.  All the public, then, should have an opportunity to access these resources for purposes such as fishing, hunting and trapping, not just a wealthy, privileged few.  The Public Trust Doctrine is also recognized as the foundation of what has been termed the North American Model of Wildlife Conservation.  This model is viewed as an important construct of law, policy, program framework and scientific investigation that has led to the protection, conservation and restoration of wildlife populations in the U.S. and Canada.

The language transferring ownership of illegally taken wild deer and moose to a private individual for his singular, personal gain in H.789 and giving the Secretary of Agriculture, Food and Markets sole authority over hunting within this 700 acre pen is problematic for two main reasons.  First, it takes wildlife out of the public domain and allows it to be privately owned by a Mr. Doug Nelson, violating the Public Trust Doctrine and all precedent for wildlife management in the United States.  Second, this was accomplished without the benefit of a public process.  There were no public hearings, no opportunity for citizens and expert testimonies and no engagement of the Fish & Wildlife Department or any conservation or sportsmen groups.  It was essentially a late-night deal.

 The Vermont Fish & Wildlife Department worked in good faith with Mr. Nelson to develop a plan to remove the native animals he illegally possessed while permitting him to keep the non-native animals he legally possessed and he failed to comply with their regulations.  Although H.789 sets forth some boilerplate language regarding the need to protect native deer and moose populations from diseases carried by elk, this is not the real purpose of this section of the bill.  If it were, culling of the native animals from the captive facility would be a more scientifically and socially responsible solution than designating them a "special purpose herd" for which hunts can and will be sold.  The current language amounts to little more than a license for Mr. Nelson to personally profit from Vermont's publicly-owned wildlife.

 The VBA opposes private ownership of native wildlife because of the harm it causes to wildlife, wildlife habitats and long-standing public values.  These actions by the Vermont legislature will serve to undermine the foundation of wildlife management in Vermont and North American by giving the public's wildlife resources to an individual for his personal private gain.  It is unfortunate that such language allowing this to occur was added to the FY2011 appropriations bill.  We urge you to repeal this section and restore Vermont's wildlife to its rightful owners, the citizens of Vermont.

 The VBA supports H.91 which rescinds the transfer of deer, moose and wildlife animals from the regulatory authority of the Agency of Agriculture Food and Markets and a private individual and returns the regulatory authority to the Vermont Fish & Wildlife Department and Vermont Fish & Wildlife Board.

Note, this has no impact on Mr. Nelsen's hunting pen and leaves intact the herd of elk , buffalo, sinka deer and red deer which is located on his property.

 Clint Gray, V.P.

Legislative Liaison