Cutting-Edge Scholarship on State Laws Against Shooting Fish With Guns

One of several reasons why I have not been writing as much here as I used to is that I have been investing my energy in a few other projects. One of them is my forthcoming article, Shooting Fish, which will be published in Volume 12 of the Kentucky Journal of Equine, Agriculture, & Natural Resources Law. Here is the abstract:

This article sets out to answer the question that’s on everyone’s mind: Is it legal to shoot fish with guns? This burning legal query has never had an exhaustive and obsessively-researched answer. Until now. 

In a fifty-state survey of laws that explicitly or incidentally restrict shooting fish, this article finds that every state has laws or regulations that either explicitly or effectively ban shooting fish — with some narrow exceptions. This article simultaneously serves as an invaluable resource to heavily-armed anglers throughout the country, and illuminates a facet of the complex system of legal rules governing fishing in all states. The regrettable lack of academic discussion of shooting fish and state laws on the subject belies the complex legal, environmental, and constitutional implications of these laws. 

This article explores those implications. States’ statutory and regulatory schemes range from explicitly defining fishing methods, to creating long lists of prohibited fishing techniques (think bans on slurp guns, slingbows, fish pews, tree-topping devices, giant powder, and fishberries, to name just a few). Many states employ location- and species-specific laws and regulations — often targeting invasive fish species by permitting wider ranges of methods for taking them. This article also addresses the environmental implications of fish-shooting laws, and why these laws exist. It also notes historic attempts to loosen shooting restrictions — attempts frequently inspired by the proliferation of high-flying, fast-multiplying Asian carp. 

Not to disappoint mainstream enthusiasts of legal scholarship, the article closes with a discussion of the state and federal constitutional implications of fish-shooting restrictions. While bans on shooting fish do not raise significant Second Amendment concerns, certain states’ prohibitions on firearm possession incidental to shooting fish do. This article also acknowledges state constitutional provisions that set forth the right to hunt and fish, but notes that these provisions are unlikely to give rise to successful legal challenges by fish-shooting enthusiasts.

As always, comments on this draft are welcome. Those who are interested in learning of the extensive and creative variety of methods that people have devised for killing and taking fish will find this article particularly helpful.

California Legislature Passes Plastic Bag Ban

Reuters reports:

The California state legislature enacted a ban on plastic grocery bags on Friday near the end of its two-year session, a measure that if signed into law would become the first of its kind in America. 

A number of cities and counties in California and other U.S. states, including Hawaii's Maui County, have made it illegal for grocery stores to pack purchases in plastic. But at the state level, opposition from plastic bag makers has usually prevailed.


The California Senate voted 22-15 for the bill, which must be signed into law by Sept. 30 by Democratic Governor Jerry Brown, who has not signaled a position on the measure.

I blogged previously about the law here, where I noted that while I was inconvenienced by Los Angeles's similar ban, the law would probably have an overall positive environmental impact. I have since moved to a California city that permits plastic bags so I once again face the prospect of being somewhat inconvenienced in my shopping experience.

I admit that I still have a few hangups over the merits of this law. For example, Los Angeles stores offered paper bags for a small, additional cost after plastic bags were banned. But whether paper bags can be efficiently recycled is a matter of debate.

Still, even if there are some inefficiencies with paper bags, I still suspect that the bill will have a positive environmental impact. But because this issue raises strong opposition from both bag manufacturers and consumers, it will be interesting to see whether Governor Jerry Brown vetoes the bill or signs it despite this opposition.

The Legal Implications of Sinking Countries

From the Legal Theory Blog, I learned of Abhimanyu George Jain's recent article, The 21st Century Atlantis: The International Law of Statehood and Climate-Change Induced Loss of Territory (50 Stan. Int. L.J. 1(?) (2014)). Here is the abstract:

International law demands territory as a precondition for statehood. If the Maldives loses its territory as a result of climate change, will it cease to be a state? In light of the negligible contribution of Maldives and similar states to climate change, if they were to lose their statehood and international legal personality on account of climate change, serious questions would arise as to the legitimacy and efficacy of international law. But these states will not lose their statehood, for three reasons. First, in light of the diminishing utility of territory for states, at least for the continuation of established states, territory need not be a necessary requirement. Second, international law is silent as to the extinction of statehood upon physical disappearance of statehood, and equity demands that statehood be preserved in this situation. Third, the political realities of recognition will operate to ensure continuing statehood. But this continuing statehood begs the question of how these states will exist without territory. There are two options: acquisition of new territory or de-territorialised existence. Both are possible but present significant practical hurdles. In the short term, the de jure statehood of these states will be protected, but in the longer term, it is likely that they will cease to exist as states de facto.

I was reminded of an article that I had the opportunity to look over while I was an articles editor for the UCLA Pacific Basin Law Review. That article is Migration for Environmentally Displaced Pacific Peoples: Legal Options in the Pacific Rim, by Gil Marvel Tabucanon. The citation is 30 UCLA Pac. Basin L.J. 55 (2012), but unfortunately I cannot find a publicly available version of the article to link to here. Here is the abstract, though:

This paper explores the complex relationship between the environment and migration, namely the various protection options available for environmentally-displaced Pacific peoples under the laws of the United States, Canada, Australia, and New Zealand. It seeks to ascertain whether flexibility exists in these countries' domestic laws for environmental migrants from neighboring Pacific countries. It asks if humanitarian and ministerial discretion admissions and preferential admission schemes sufficiently address potential Pacific island relocations brought about by global warming and climate change, and identifies both opportunities and challenges in legislation. 

This paper argues that in the absence of an international legal protection regime for environmental migrants, states need to expand immigration opportunites for persons fleeing from environmental threats. In recent decades, the four above-mentioned Pacific Rim states have developed relatively open and liberal migration policies, albeit not specifically geared towards environmental migration. Admitting environmental migrants under equitable and just terms is not only in line with the fundamental values and interests of these Pacific Rim states, but it is also central to their ethical, humanitarian, and domestic legal obligations, although the latter are ad hoc and limited.

These are two of a growing number of articles on how island nations and people living there will be able to address the seemingly insurmountable challenge of rising oceans. This is a growing problem that the international community will need to address at some point soon.

The Legal Treatment of Beached Whales

The BBC reports:

The residents of a town on Canada's Newfoundland island fear a blue whale carcass that washed up on its boardwalk last week could explode at any time. 

The 25m (81ft) whale on Trout River's rocky beach is one of several believed to have died in heavy ice weeks ago. 

Town Clerk Emily Butler says the body is bloated with methane gas caused by decomposition and will soon reek, regardless of whether it explodes. 

Local and federal authorities disagree which are responsible for its disposal.

Wondering what the stakes are in this case, I turned to the internet and found this (warning, graphic) video of an exploding whale. It would seem that the bloated whale on the shore by Trout River poses a real threat.

On reading this story, my thoughts turned immediately to the (fortunately fictional) case of Tinrib, Rumble, and Others v. The King and Queen or the "Fish Royal" case from A.P. Herbert's Uncommon Law. In that case, the inhabitants of Pudding Magna, a small town, bring a lawsuit in an attempt to prompt the Crown to remove the body of a whale which has washed up on the shores of the town. The whale was "Fish Royal" and was therefore the property of the King, so the people of the town turned to the Crown to oversee the removal of the whale.

The case describes the Crown's elusive behavior, noting that it punted at the suggestion of using the whale as a military target, and was leery of destroying the whale with explosives because it would be using public resources to destroy the government's own property. At the end of the case, the Ministry of Agriculture and Fisheries refuses to handle the matter because the whale is a mammal and not a fish. At that point, the townspeople have all left, due to the overwhelming stench of the decomposing whale.

While Herbert's Fish Royal case was a joke, The inhabitants of Trout River, and another nearby town, Rocky Harbour, are in an eerily similar situation as the townspeople in Fish Royal. Canadian federal authorities claim that they aren't responsible for removing the whale. CBC News has detailed coverage of the story, including the towns' dispute with the government:

Rocky Harbour Mayor Walter Nicolle said the government and DFO [Department of Fisheries and Oceans] are telling the communities they have to deal with the carcasses. 

Nicolle said it's a difficult task to get rid of such a big animal, and small communities like his don't have the resources. 

"We talked to DFO and they don't want to take responsibility to remove the whale. The whale is in the Rocky Harbour boundaries, so the cost should be [covered] by the town," said Nicolle. 

[Trout River restaurant owner, Jenny] Parsons said the council in Trout River is dealing with the same problem — what to do with the world's largest mammal when it washes up on your shore? 

Nicolle said the DFO won't pay to remove it, and has to grant clearance before the town is allowed to move it. 

"It's in their jurisdiction when it comes to us removing the whale, but it's in our jurisdiction when it comes to costs of removing it." 

Nicolle said time is running out for Rocky Harbour to find help getting rid of the whale, and every day the stink is getting worse.

The threat of an impending explosion makes this case even more dramatic than the Fish Royal scenario. Rumors that this is a publicity stunt for the upcoming season of 24 have not been confirmed. Hopefully the federal government gets its act together so that the citizens of Trout River and Rocky Harbour avoid the unpleasant fate of the citizens of Pudding Magna.

Does Removing Lead from Gasoline Reduce Crime?

That's the question this BBC article explores in detail. From the article:

Many Western nations have experienced significant declines in crime in recent decades, but could the removal of lead from petrol explain that? 

Working away in his laboratory in 1921, Thomas Midgley wanted to fuel a brighter tomorrow. He created tetraethyl lead - a compound that would make car engines more efficient than ever. 

But did the lead that we added to our petrol do something so much worse? Was it the cause of a decades-long crime wave that is only now abating as the poisonous element is removed from our environment? 

. . . 

If you want to understand the causes of crime - and be tough on them - you need to start with lead, says Dr Bernard Gesch, a physiologist at Oxford University who has studied the effect of diet and other environmental factors on criminals. 

"Lead is a very potent neurotoxin," says Gesch. "It has a range of effects on the brain that have been demonstrated through hundreds of different biological studies. Lead alters the formation of the brain. It reduces the grey matter in areas responsible for things such as impulse control and executive functioning - meaning thinking and planning."

The article goes on to discuss how the amount of lead in the environment corresponds to whether there is lead in gasoline, citing this study by Rick Nevin, published in 2000 in Environmental Research, as an early example of research on the issue.

The article notes that studies carried out in different countries reveal crime rates corresponding with the amount of lead exposure. For example, "[l]eaded petrol was removed from British engines later than in North America - and the crime rate in the UK began to fall later than in the US and Canada."

The theory remains difficult to test, and there are those who question the validity of connecting health impacts from environmental factors to criminal, rather than behavioral, activity. But the article raises some interesting points, and is worth reading in full.

Why Wells?: Exploring the Freedom of Information Act's Ninth Exemption

Yesterday in my administrative law class, we discussed the Freedom of Information Act (FOIA) (5 U.S.C. §552). There is a lot in that act, but for purposes of this post, I am focusing on §552(b), the subsection of the act that exempts certain information from FOIA's requirement that governmental agencies provide information to parties' requests. Specifically, I am focusing on the ninth exemption to FOIA's requirements, which exempts "geological and geophysical information and data, including maps, concerning wells" from FOIA's disclosure requirements.

Other exemptions to FOIA allow the government to retain information that pertains to trade secrets, national security, or private information about agency personnel. Those exemptions make sense to me, but in light of those exemptions, I was led to wonder, "why wells?"

After some searching, I found the Department of Justice Guide to the Freedom of Information Act, which explains the breadth of the subsection nine exemption. In doing so, the guide illustrates the lack of cases that address the exemption.

I decided to look through the few cases that discuss the ninth exemption, and I found that they outlined an evolution in courts' interpretation of FOIA's ninth exemption. I explore this evolution after the jump.

The Inconsistent Enforcement of the Migratory Bird Treaty Act

At Energy an the Law, Charles Sartain has an interesting post on the mixed enforcement of the Migratory Bird Treaty Act. He notes that while CITIGO was fined over one million dollars for the death of ten birds in 2012, wind turbine operators now have permits allowing them to kill a certain number of eagles (a reform to the law that followed soon after a notable case where turbine operators were fined for the deaths of golden eagles). And while the deaths and injuries of birds at the hands of wind turbines and solar plants are met with studies, nobody in government has yet said anything about the potential thousands of bats that are killed each year by wind turbines.

Sartain concludes that there is no consistent policy behind current enforcement practices. It will be interesting to see if these practices change as the government's studies on solar and wind energy plants' environmental impacts proceed.

California Mulling Statewide Ban on Plastic Bags

The New York Times has an interesting article about the rise of plastic bag bans and the politics of these bans:

The case against plastic shopping bags is simple and, with more than 150 communities across the country embracing some kind of anti-bag laws, increasingly familiar. Plastic bags are used once or twice but can last up to a millennium. Only a small fraction of the bags are recycled, in large part because they jam sorting machines at recycling plants and so must be separated from other plastics. Many bags end up snagged on trees, stuck in storm drains or sitting in landfills.

. . .

Hilex Poly, one of the nation’s largest manufacturers of plastic bags, single-handedly spent more than $1 million lobbying against a bill to ban plastic in California in 2010. That bill failed, as did another attempt in 2013. Hilex Poly, based in Hartsville, S.C., has made political donations to every Democrat in the California Senate who joined Republicans in voting against last year’s bill. 

. . .

But support has been steadily growing in the California Legislature. The Los Angeles Times endorsed a statewide ban last week, and several senators who voted against the ban last year have come out in support of it this year. Some environmentalists say they now believe they have the momentum to push bans across the country, starting with California.

The article does a compelling job of presenting the environmental impacts of plastic bags and the benefits that follow in the wake of plastic bag bans. Speaking from firsthand experience, I can say that it has not been particularly easy to adjust to the Los Angeles plastic bag ban -- I often forget my reusable bags (or make an impromptu trip to the store from school) which has caused me to wind up with an influx of paper bags. But I will begrudgingly admit that the plastic bag ban is probably the most environmentally friendly approach to this issue.

Federal Permits for Wind Farms to Kill Eagles

Via Will Baude of the Volokh Conspiracy, I learned of a recently released-rule by the United States Department of the Interior.  The Wall Street Journal reports:

The U.S. Interior Department on Friday issued a rule that highlights a tension lingering between two key goals of the environmental movement: developing renewable energy sources and protecting wildlife. 

The newly finalized rule would grant 30-year permits allowing wind farms and other projects to accidentally kill federally protected eagles, provided they meet certain criteria.

Those criteria include proving that the wind companies are taking safety measures to try to minimize the damage that their wind turbines do to eagles.  Environmentalists seem divided on the issue, with some noting that the benefits of renewable energy outweighs collateral damage of wind turbines, and with others arguing that this permit will simply "lead to more dead eagles."

This development follows shortly after the first prosecution of a wind company for killing eagles -- so these permits may indeed have a practical impact.

Kaplow on First Criminal Prosecution for Bird Deaths by Wind Turbine

At Green Building Law Update, Stuart Kaplow has a post entitled, "First Ever Criminal Prosecution For Deaths Of Birds By Wind Turbine."  The case Kaplow discusses involves the death of over 150 birds that were killed by wind turbines.  The turbines were owned by Duke Energy Renewables, Inc.

Kaplow writes:

In a criminal information, Duke Energy Renewables Inc., a subsidiary of Duke Energy Corp., was charged with violating the 1915 era federal Migratory Bird Treaty Act in connection with the deaths of federally protected birds at the two of the company wind projects in Wyoming. 

Duke Energy plead guilty on November 23, 2013 to 2 misdemeanor counts. “This case represents the first criminal conviction under the Migratory Bird Treaty Act for unlawful avian takings at wind projects,” said Robert G. Dreher, an Acting Assistant Attorney General.

Kaplow argues that this case is the first avian taking case against a wind company and that this type of prosecution is not good public policy in light of broader environmental considerations.  I am inclined to agree, and Kaplow highlights this other post that discusses the possibility of permits for wind turbine companies to cause the deaths of birds without violating the law.

Quirky Law Review Article of the Week: Banning Lawns

Here's an article I discovered a little while back.  I took a look at it before its destination was finalized, but it looks like it ultimately got picked up by the George Washington Law Review.  The article is Banning Lawns, by Sarah Schindler.  I think that the abstract does a pretty good job of showing how the article caught my attention:

        Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.        Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing.          In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns.

 I recall that when I first read the article, Schindler did not address the political problems raised by her thesis.  It looks like she may have done more to deal with this issue, though I still have my doubts over whether towns will ever adopt the policies she suggests.  Nevertheless, it is a very interesting article with a lot of compelling arguments showing that lawns are very, very bad.