Week of June 29, 2009
U.S. Supreme Court case threatens Outdoor Industry, anglers and hunters
A case to be heard by the Supreme Court of the United States might result in serious problems for any person, outlet or entity that shows or sells depictions of hunting and fishing activities.
Taking, selling or publishing images of hunting, fishing or trapping could mean felony charges and jail time for journalists, photographers, magazine publishers, television show hosts and producers, Web content publishers, hunters and anglers, in general and many more.
This summary and the documents listed below explain the serious risk the government's case against Stevens poses to those who produce depictions of hunting and fishing activities.
Summary of the Case
UNITED STATES of America v. Robert J. STEVENS, Appellant. No. 05-2497
Robert J. Stevens of Virginia was convicted of criminal charges for producing and selling films about dogs. Stevens' conviction was overturned as a result of a Third Circuit Court of Appeals decision that said the law relied upon to convict Stevens was unconstitutional.
Stevens may still go to prison. The case is now being heard by the Supreme Court of the United States. The outcome could be devastating to all journalists and specifically to the traditional outdoor sports of hunting, fishing and trapping.
The Third Circuit struck down a federal law banning "depictions of animal cruelty." 18 USC 48. The statute does not ban acts of animal cruelty themselves (and so this case is not about such actions). It bans images of animals being hurt, wounded or killed if the depicted conduct is illegal under federal law or illegal under the state law either (i) where the creation of the depiction occurs, or (ii)
That means that a picture taken of the killing of an animal during a hunt (perfectly lawful where it occurred) could be a federal felony crime if that picture is sold or possessed somewhere in the United States where hunting (or the particular type of hunting, i.e., crossbow) is prohibited.
As the court of appeals explained, the law now makes it a federal felony to buy a picture of bullfighting in Spain or an image shot by a journalist of a hunter or angler taking a shot at a legal game animal or catching a fish ― if that action is unlawful anywhere in the U.S.
The law creates an exception if a jury finds that the images have "serious" value. The government defined "serious" as "significant and of great import." The result accordingly is that all depictions of animal killings that might be unlawful somewhere in the U.S. are now presumptively federal felonies, with the only hope of protection being that a jury in San Francisco (or wherever an eager prosecutor wants to go) agrees that the images are "significant and of great import."
The government and Humane Society, which is pushing this issue hard, are trying to paint this as a case about dog fighting, since that incites peoples' emotions. It's about the
Mr. Stevens is a 69-year-old hunter and Pit Bull dog lover from Southern Virginia. He is a published author. He has no criminal record at all ― other than this conviction. He has been sentenced to more than three years (37 months) in prison for making films, nothing else.
A prosecutor hauled him to Pittsburgh, perhaps because obtaining a conviction in rural Virginia would be difficult, to prosecute him for: one documentary he made about training catch dogs for hunting (called "Catch Dogs"); and two documentaries he made about Pit Bulls and their fighting history.
For that, Stevens faces spending three years in federal prison.
Of particular concern to the hunting and fishing industry is the fact Stevens' prosecution rested on his film "Catch Dogs," which showed how dogs are trained to help catch prey (wild boar, etc.). The film shows a dog making a mistake in trying to catch a hog, but does so with Stevens talking over the images about the training mistake and explaining what should be done to teach dogs to catch prey properly.
There is no allegation that Stevens engaged in dog fighting or any acts of animal cruelty. Nor is it even alleged that the images depicted in his films were illegal when taken. Furthermore, he did not take the images himself, but edited together films taken by others ― films that were recorded in Japan, where the conduct is perfectly legal, and from historic films from the ‘60s and ‘70s in rural America.
To be sure, the latter two films contain extensive images of dog fighting. But Stevens is not a dog fighter, he opposes dog fighting, but loves the traits in Pit Bulls that made them fighters.
Stevens' films were made to document the strength, endurance, and similar features of Pit Bulls to support his argument (made at length in his book) that Pit Bulls make great hunting dogs, protection dogs, and schutzhund (strength contests) dogs.
The case has the potential to make it a felony to sell or publish images of hunting, fishing, trapping, and virtually anything else that's ruled as a "depiction of animal cruelty."
For more info view these links:
Decision of the U.S. Court of Appeals for the Third Circuit in United States v. Robert Stevens
Brief in Opposition – filed before the U.S. Supreme Court
The Professional Outdoor Media Association, a writers group comprised of mainly hunting and angling journalists is playing a leading role in informing the public of this issue, largely because they are at risk as they pursue their vocation and assignments if the Humane Society prevails in court. POMA is also encouraging journalists and others to sign on to the First Amendment Brief defending the Constitutional rights of hunters and anglers as they pursue the culture of traditional outdoor activities.
WASHINGTON, DC, June 18, 2009 – The Senate Committee on Environment and Public Works approved six water-related bills on June 18, including the controversial Clean Water Restoration Act, S. 787. The bill would amend the Clean Water Act to clarify the jurisdiction of the federal government over waters of the United States.
Over time, several U.S. Supreme Court decisions and previous administration policies have created uncertainty regarding federal protection for some waters, especially headwater streams and so-called isolated wetlands. Headwater streams are the small swales, creeks and streams that are the origin of most rivers.
Committee Chairman Senator Barbara Boxer of California said, "Today the Environment and Public Works Committee took historic steps to restore, in a balanced way, the common-sense Clean Water Act protections that have been in place for decades. We also passed important measures to ensure our families have clean, safe water, to promote conservation of migratory birds, and to protect America's beaches, lakes, rivers, bays and wetlands. I look forward to working with my colleagues on both sides of the aisle as these bills are considered by the full Senate.”
The Clean Water Restoration Act replaces the term "navigable waters," which are subject to the Act, with the term "waters of the United States."
This change in language would bring under federal protection all waters subject to the ebb and flow of the tide ― including the Great Lakes, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams, including intermittent streams, mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress.
The bill declares it does not regulate under the Clean Water Act return flows from irrigated agriculture; or uncontaminated stormwater runoff from oil, gas, and mining operations.
It does not impose federal regulation on dredged or fill materials resulting from normal farming, silviculture, and ranching activities, from upland soil and water conservation practices, or on activities regulated by the states under a federally approved water quality program.
Nor does it regulate dredged or fill materials for the maintenance of currently serviceable structures, the construction or maintenance of farm or stock ponds, irrigation ditches and maintenance of drainage ditches, or farm, forest, or temporary roads for moving mining equipment in accordance with best management practices, or the construction of temporary sedimentation basins on construction sites for which discharges do not include placement of fill material into the waters of the United States.
Even so, Senator James Inhofe of Oklahoma, the ranking Republican on the Environment and Public Works Committee called the bill, "a dagger directed right at America's heartland."
"I see this bill as a significant part of a hostile agenda aimed squarely at rural America," Inhofe said. "Allowing EPA and the Corps to exercise unlimited regulatory authority over all inter- and intrastate water, or virtually anything that is wet, goes too far and is certainly beyond anything intended by the Clean Water Act. But, that is what S. 787 does."
Inhofe said the bill, "vastly expands federal control of private property, despite assurances contained in S. 787. In fact, the very premise of the bill is to override a state's fundamental right to oversee waters within its borders and to usurp the power of land owners to manage their property as they see fit."
Inhofe listed groups that have expressed concerns with this bill including: The Associated Builders and Contractors, the National Stone, Sand & Gravel Association, the American Forest and Paper Association, the American Farm Bureau Federation, the National Association of Home Builders, the National Association of Realtors, the American Highway Users Alliance, and the American Association of Airport Executives.
Inhofe says he and fellow Republicans intend to fight this bill on the Senate floor.
Environmentalists say this bill is a major step in the right direction after Supreme Court decisions in 2001 and in 2006 and subsequent directives from the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have confused which waters are protected under the Clean Water Act and which are not.
Chris DeScherer of the Southern Environmental Law Center said the court and agencies, hinging their rationale on the term “navigable,” have muddied the scope of protections for so-called “isolated” wetlands and headwater streams that are "ephemeral or intermittent." "This bill is critical to protecting drinking water, wildlife habitat, recreation opportunities, and any number of community economies in the South," DeScherer said.
Virtually all U.S. waters were once protected, but the current approach is to make determinations on a case-by-case basis, which creates uncertainty for all interests, including developers and others in the regulated community as each Corps district is applying its own criteria for determining what waters are and are not covered.
DeScherer says regulating the nation's water resources in this piece-meal fashion disregards the interconnectedness of our watersheds upon which clean, healthy water relies.
The impacts of confusing jurisdiction of the Clean Water Act protections has taken an especially heavy toll in the water-rich South, where clean, plentiful water is directly related to the health of a web of tributaries and wetlands, DeScherer said, adding that, "These smaller waters are considered the first-responders to controlling pollution and floods."
"Although SELC and many others have fought hard to protect these waters, I can't tell you how many wetlands or small streams may have been lost forever because of misinterpretation of the Clean Water Act," he said.
"Our most cherished iconic waterways, Lake Michigan and the Mississippi River, can only be as healthy as the streams and wetlands that feed and clean them," said Max Muller, program director at Environment Illinois.
The U.S. EPA estimates that over half of Illinois streams are headwater or seasonal, the types of streams most in danger. At least 800 polluting facilities located on at-risk streams have their discharges limited by Clean Water Act permits, permits that Muller worries may no longer be required if this legislation is not enacted. He cites EPA data indicating that more than 1.6 million Illinois residents receive drinking water from supplies fed at least in part by these streams.
Washington Times June 26, 2009
Opponents of the Obama administration's plan to expand the definition of "switchblades" and block the importing of many common pocketknives suffered an early setback in Congress this week, but they vow the Capitol Hill knife fight isn't over.
"Everyone from our first responders, law enforcement officials, Boy Scouts and hunters will be affected by this regulation," said Rep. Bob Latta, Ohio Republican, after the House Rules Committee rejected his bill to block the change. "It is unacceptable to think that we as citizens cannot carry a pocketknife for work or recreation purposes."
Mr. Latta, who has teamed up with Democratic Rep. Walt Minnick of Idaho to fight the measure, is currently exploring other legislative moves to stop the administration's plan, said Latta spokesman David Popp.
The two lawmakers had submitted an amendment to a spending bill that would have blocked the new regulation, but it was rejected on procedural grounds.
Critics of the regulation - including U.S. knife manufacturers and collectors, the National Rifle Association, sportsmen's groups and a bipartisan group of at least 79 House members - say it would rewrite U.S. law defining what constitutes a switchblade and potentially make de facto criminals of the estimated 35 million Americans who use folding knives.
Opponents are in a race against time because of the quick pace of the rule-making process - a 30-day comment period that ended Monday, followed by a 30-day implementation schedule.
"We now move to the Senate side where we hope for better luck and have more time to prepare, coordinate with other groups and marshal our forces," said Doug Ritter, executive director of Knife Rights Inc., an advocacy group fighting to defeat the measure.
The new knife rules proposed by U.S. Customs and Border Protection (CBP) would affect the interpretation of the Switchblade Knife Act of 1958 to include any spring-assisted or one-handed-opening knife.
The law defines a "switchblade" as any knife having a blade that opens automatically by hand pressure applied to a button
or other device in the handle, or by operation of inertia or
Customs officials dismiss fears that the new language will outlaw ordinary pocketknives, saying the change was issued to clear up conflicting guidelines for border agents about what constitutes an illegal switchblade that cannot be imported into the United States. The rule could be imposed within 30 days if not blocked.
A review of case law "in consideration of the health and public safety concerns raised by such importations" prompted the agency to revoke the ruling that allowed the importing of knives with spring- and release-assisted opening mechanisms, CBP spokeswoman Jenny L. Burke said.
Customs officials argue the rule deals only with imported merchandise, and does not affect knives already in the country or that are manufactured domestically.
The 1958 law bans the possession of switchblades on federal lands and prohibits the mailing or sale of switchblades across state lines. It does not mandate prohibition within states and localities, though a number of states, including Maryland, have passed their own statutes banning or limiting the possession and carrying of switchblades.
Possession of switchblades is legal in Virginia if not intended for sale.
Critics of the rule say that broadening the definition of switchblades in federal law would instantly make previously permitted knives illegal in states that have adopted the ban. Hunters and hikers who cross state lines with their knives may find themselves guilty of a federal felony, they warn.
The bipartisan Congressional Sportsmen's Caucus, boasting one of the largest memberships on Capitol Hill, sent a letter to Department of Homeland Security Secretary Janet Napolitano, who oversees CBP, urging her to quash the proposed rule change. The letter was signed by 61 Republican and 18 Democratic lawmakers.
In much the same way that gun rights issues have cut across the partisan divide in Congress, the threat of a knife grab by the government has especially rankled members from western and southern states, regardless of their party.
After severe weather hit much of the southern Lake Michigan region last weekend, dropping up to 8 inches of rain in some areas, hot and humid weather with temperatures climbing above 90°F arrived across most of the Great Lakes basin this week. Severe thunderstorms were also reported across Wisconsin. More showers and thunderstorms are expected this weekend. The week will see drier weather, while the eastern half of the Great Lakes basin may get thunderstorms later in the week.
Lake Level Conditions
Lake Superior is 1 inch below the level it was a year ago while Lakes Michigan-Huron, St. Clair, and Erie are 10, 9, and 6 inches, respectively, higher than their levels of a year ago. Lake Ontario is at the same level it was a year ago. Lakes Superior and Michigan-Huron are predicted to rise 2 inches and 1 inch, respectively, over the next 30 days. Lakes St. Clair and Erie are predicted to drop by 3 inches while Lake Ontario is predicted to drop by 2 inches over the next 30 days. Over the next several months, Lake Superior is predicted to be around its level of a year ago. Lakes Michigan-Huron, St. Clair, and Erie are forecasted to remain at or above last year's levels. Lake Ontario is forecasted to be at or below its levels of a year ago over the next six months. See our Daily Levels web page for more water level information.
Current Outflows/Channel Conditions
In May, the outflow from Lake Superior through the St. Mary's
River was below average, as was the outflow from Lake Michigan-Huron through the St. Clair River. The Detroit and Niagara Rivers carried near average flows during May. The outflow from Lake Ontario through the St. Lawrence River was above average.
Users of the Great Lakes, connecting channels and St. Lawrence River should keep informed of current conditions before undertaking any activities that could be affected by changing water levels. Mariners should utilize navigation charts and refer to current water level readings.
For the last three years, the free DNR Fishin' Pond has been a highlight of the State Fair, and the DNR needs volunteers to keep the tradition going this year, Aug. 7-23, in Indianapolis. Volunteers not only make this feature enjoyable and educational, they receive a free ticket to the fair, good for the entire day of their four-hour shift.
No experience is needed. Optional training, which is highly recommended for new volunteers, is offered twice in July and will serve as a chance for early ticket pick-up. All volunteers also receive a T-shirt to wear during their shift.
Training for new volunteers will be July 24, from 3 to 5 p.m., or July 25, from 10 a.m. to noon. The same material will be covered in both, so volunteers need attend only one session. There are morning and evening four-hour shifts at the Fishin' Pond. Times run 8:30 a.m. to 12:30 p.m. and 3:30 p.m. to 7:30 p.m.
There are four types of opportunities: fishing instructors,
equipment workers, registration workers, and educators (crafts). More details are provided below.
Those 18 years old and older who are interested may register at http://www.IN.gov/dnr/5495.htm or contact the GoFishIN program at (317) 562-1338 e-mail fishpond@dnr.IN.gov with questions or to register a minor (under 18 years old).
► Fishing Instructors: Work individually, directly with two or three children and their parents at the pond fishing, assisting the youth during fishing time and helping them with fishing skills (casting, baiting hooks), catching the fish and returning it back to the pond.
► Equipment: Keep fishing instructors supplied with hooks, bobbers, sinkers, bait, etc., and help in the daily setup of fishing area and equipment.
► Participant registration: Sign up youth for the event.
► Educators: Help the children with a hands-on educational activity (craft activity). We will supply the activities. This role is ideal for those who don’t want to get fishy but want to help.
The Department of Natural Resources’ Becoming an Outdoors-Woman (BOW) program is offering a Fly Fishing Workshop July 24-26 at Cronk’s Oakridge Motel and Restaurant in Newaygo.
This workshop has a limited enrollment of 20 to ensure plenty of hands-on instruction for each participant with Orvis-endorsed guides.
The cost of the workshop is $220, and includes all instruction, lodging, two breakfast buffets and a lunch buffet on Saturday. Fly fishing equipment will be provided, and women are encouraged to bring their own waders and fly rods, if they have them. Lodging will be provided at Cronk’s Oakridge Motel, with two guests per room. Each room has two beds, and participants may designate a roommate if they are participating with a friend.
Participants should also plan to bring rain gear, long pants, a long- and short-sleeved shirt, a jacket, hat, bug spray and sunscreen.
Check-in begins at 7 p.m. Friday, July 24, at Cronk’s Oakridge
Restaurant with a get-acquainted party and beginning instruction. On Saturday, July 25, a breakfast buffet will begin the day at 8 a.m., with instructional sessions from 9 a.m. to noon, followed by a lunch buffet.
After lunch, participants will receive additional instruction for an “on the water” experience. From 3:30 to 5 p.m., there will be casting practice outside, with further practice on an individual basis with an instructor. At 6:30 p.m., fishing on the Muskegon River will begin.
On Sunday, July 26, there will be an 8 a.m. breakfast buffet, and participants have the options of a half-day float trip (an additional $110 per person based on two people per boat to be paid to the guide at the time), additional private instruction with a guide (fee negotiated with guide) or fishing on your own on the river or a nearby lake.
For more information about this opportunity or other BOW programs, call DNR BOW Coordinator Sue Tabor at 517-241-2225 or visit the DNR Web site at www.michigan.gov/bow.
The Department of Natural Resources announced that the Bergland Dock Boating Access Site, located in Bergland Township in Ontonagon County, will undergo construction beginning July 13.
The $200,000 project will include a parking area for 35 vehicles with trailers, a 36-foot wide by 70-foot long ramp, a new ADA compliant vault toilet, and a 5-foot by 30-foot universally accessible courtesy pier. The DNR construction crew plan to start mobilizing equipment and supplies on July
6, but construction is not expected to begin until July 13.
The launch will remain open during construction but users may experience congestion and, at times, the crew may require temporary closures of the launch. During these times, Lake Gogebic can also be accessed at four alternate locations which include a facility on the east shore, two Gogebic County facilities and one launch at Lake Gogebic State Park.
Completion of this project is tentatively scheduled for Sept. 1.
ALBANY, N.Y. (AP). – A state judge has upheld rules to require commercial ships in New York waterways to retrofit with ballast water treatment systems by 2012 and to require such systems in new ships starting in 2013 as a means of killing invasive species.
The state Department of Environ-mental Conservation rules, which also prohibit bilge discharges, are meant to keep additional foreign aquatic plants and animals from the St. Lawrence River, Great Lakes and other New York waterways. The court rejected the arguments of a coalition of large shipping interests that claimed the state had illegally placed further restrictions on a U.S. Environmental Protection Agency nationwide discharge permit for these vessels.
In his May 21 ruling, New York State Supreme Court Justice Robert Sackett agreed with the state of New York and dismissed a challenge to permit requirements issued by the New York State Department of Environmental Conservation designed to control discharges of invasive species to the Great Lakes and other waterways by ocean-going vessels.
"This decision is a critical win for New York's right and responsibility to protect our Great Lakes and resources," said NY Attorney General Andrew Cuomo. "The court's decision not only defends our state's actions, but affirms our right to take necessary measures to fight the plague of invasive species. Ensuring the continued health of Lake Erie and Lake Ontario is vital to our quality of life, our economic growth and our environment."
Like California's regulations, they add ship overhauls to the new federal requirement for offshore ballast exchanges by inbound commercial ships at least 79 ft. long. Justice Robert Sackett rejected Albany, Oswego and Great Lakes ports' concerns of economic harm.
In July 2008, Cuomo, together with five other attorneys general from states bordering the Great Lakes and several environmental groups, won a federal court decision confirming that large vessels and other oceangoing freight ships require a permit to discharge ballast water.
Earlier in 2008, New York signed onto a successful amicus brief in support of a Michigan law to control invasive species pollution by vessels. The Michigan law, too, was upheld in federal court, defeating a legal challenge by various shipping companies. The Department of Agriculture spends millions of dollars each year to combat invasive species. A study by Congress' General Accountability Office estimated the total annual economic losses and associated costs related to invasive species totals $137 billion ― more than double the annual economic damage caused by all natural disasters in the United States.
The bill was originally introduced into the NY State Assembly by then Assemblyman Richard Smith, former GLSFC vice president and present charter captain on Lakes Erie and Ontario.
MADISON – Anglers heading out for northern zone bass should prepare for post-spawn, hungry fish. Anglers will find plenty of nice smallies and largemouth bass now that the northern bass zone season has opened.
“Both largemouth and smallmouth bass will have recently completed spawning in the north. They will likely be found in relatively warm, shallow waters making them accessible to both shore and boat anglers,” says Joe Hennessy, warm water fisheries specialist with the DNR. “Post-spawn bass should feed actively and be willing to strike a variety of lure presentations. Spinners, plastics, and top-water baits are all good choices when fished near available cover this time of year.”
More on bass lures, techniques, and the best time of day to go fishing can be found in a June 2002 Wisconsin Natural Resources magazine article: “Bassin’ Basics.”
Anglers looking for places to fish can check the DNR Web site for quality bass fishing opportunities in Wisconsin or take a look at the 2009 Fishing Report to see which waters biologists predict will offer good bass fishing this year.
The northern bass season runs from June 20 to March 7, 2010, and most waters have a daily bag limit of five and a minimum length limit of 14 inches. The northern zone is the area north of highways 77, 64 and 29, with Highway 10 as the dividing line. More information can be found in the 2009-2010 Guide to Wisconsin Hook and Line Fishing Regulations and the Fishing Wisconsin Web pages.
The opinions expressed here are those of the authors and not necessarily those of the GLSFC, its officers or staff.
Reproduction of any material by paid-up members of the GLSFC is encouraged but appropriate credit must be given.
Reproduction by others without written permission is prohibited.
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