Opt In, Opt Out Caveats to be Opposed by Council, Erie County Federation

By Rich Davenport, published December 17, 2021

Youth Hunt
Youth hunters participate in annual mentored Youth Pheasant Hunt

New York sportsmen and women endured a busy and not so friendly to conservation activities 2021, as CoVid-19 epidemic mandates continued to restrict many organizations and their ability to offer educational events, such as fishing clinics and mentored youth hunts, not to mention hampered fund raising efforts and even the ability to get together and enjoy the camaraderie of club membership at club facilities and events.

Nothing more trying, however, came about than the precedent that was established in April 2021, when legislation was included in the NYS Budget lowering the deer hunting age with firearms from age 14 to 12, under qualified adult supervision, something the sporting community and the NYSCC has been trying to accomplish for what seems to be forever, a victory was finally in sight. But the final form of the bill brought about unintended consequences that are now truly causing headaches and serious concern within NY’s sporting community.

Dubbed the Youth Hunting Pilot Initiative, the measure, although excluding bear hunting, allowed for parents or qualified mentors with written permission from a parent or legal guardian to take youths age 12 and 13 to hunt deer using firearms, which contains a sunset clause of 12/31/2023. Youths in NY have been able to hunt small game, waterfowl and fur bearers under supervision using firearms – including center fire rifles – for many years without any issues, and in 2014 NY lowered the big game junior archery minimum age from 14 to age 12, while also lowering the junior big game hunting age from 16 to age 14. This change was accompanied by the expansion of early archery opening day in southern zone of NY to October 1, and the establishment of a special youth firearms deer hunting weekend during the Columbus Day holiday – offering 3 days where youths ages 14 and 15 could hunt and harvest deer of either sex with a firearm under direct supervision of a qualified mentor who could not hunt alongside the youth.

Youth hunters in NY have consistently proven to be the safest hunters afield in NY, and although the provision contained a sunset clause, the measure would provide 3 hunting seasons as a test to prove this age group could also safely hunt deer with a firearm, warranting making the law permanent. After years of hard work, the measure gained the support of the NY Sportsmen’s Legislative Caucus, however, another provision in this law brought a poison pill of sorts – the necessity for each county in NY to “opt in” by passing a local law permitting 12 and 13 year olds to hunt deer within any given county before the pilot program would take effect.

NY fish and wildlife governance is set as policy of the state and the state alone. This supremacy is established in the NYS Constitution, and the law which created the NYS Dept of Conservation (later becoming the NYSDEC), clearly provided full authority to the state, binding counties and localities to the state fish and game jurisdiction. Suddenly, in one fell swoop, a new precedent was set that allowed counties to opt in to a state law, but also to opt out through lack of legislative action.

Alarm bells were raised by the NYSCC Big Game Committee Co-Chairman during the Western New York Environmental Federation meeting on April 18, 2021, as this precedent could usher in a wave of similar state fish and game laws that would allow counties to refuse to recognize if they failed to opt in. This precedent would also allow political posturing in any given county to trump the supremacy of NY in matters concerning fishing, hunting and trapping. The WNY sportsman’s rep on the Legislative Sportsmen’s Caucus cited rifle expansion in southern zone as the model, and envisioned no real issues – while finally getting the age lowered to 12, and despite the sunset provision, was confident that the law would be made permanent once safety concerns were proven misguided.

However, after the DEC adopted the southern zone Holiday Hunt later in the spring of 2021, establishing a 7-day extended archery, crossbow and muzzleloader season for the last week of the year (12/26-1/1), the snowmobiling community viewed this as a threat to the opening of the trails, as many counties keep the snowmobile corridors closed until the last big game hunting season ends, and it was considered an economic hit losing that trail opening for Christmas to New Years. The NYSSA, on behalf of several member clubs, found a State Senator and Assemblywoman to sponsor legislation, this time allowing counties to out out of the Holiday Hunt, but before the Assembly version of the bill was brought to a full floor vote, representatives approached the DEC to seek regulatory remedy instead of legislative action.

This resulted in the regulatory proposal to allow counties to opt out of the Holiday Hunt, provided the county passes a local ordinance opting out of the duly established by regulation season, with new measures to continue the opt out having to be passed each year. Inaction meant the Holiday Hunt would go on unimpeded.

The sporting community recognized very clearly the dangerous precedent set, with our collective blessings, by this youth hunt with county opt in requirements. Seeing the largest county in NY for sporting license sales (Erie County) decide to not opt in via County Executive veto, citing political ideology and faulty numbers from anti-gun and anti-hunting groups, drove home the very real danger wildlife and fisheries management is now in through this terrible and potentially in conflict with NYS Constitution provision, which now saw a regulatory (not legislative) proposal to allow counties to opt out. Although the DEC has shelved this opt out proposed regulation for 2021, nothing in that shelving prevents the legislature from resurrecting the opt out bills, which already passed the NYS Senate at end of session in June 2021. The regulatory proposal could also be reconsidered early in 2022.

In response, the NYSCC during the last board meeting held on 12/9/2021 has decided to craft an emergency resolution to immediately make it policy that the Council shall oppose any opt in or opt out language in either legislation or regulatory proposals. On December 16, 2021, the Erie County Federation held discussions on crafting a similar resolution, with West Falls Conservation stepping up to lead the charge to craft the resolution, and attempt to secure sign on from the balance of the counties in Region 9. By bringing the matter up as an emergency regulation, the NYSCC can move more swiftly in adopting the measure as policy, vs. going through standard resolution channels, which would delay consideration of the full membership until the annual Fall convention.

During the Erie County Federation meeting, the Big Game Committee Chair for Erie County, also Region 9 rep and co-chair of the NYSCC Big Game Committee, warned the delegates that although the proposed opt out regulation was shelved for this year, this did not guarantee that the measure was dead, and could be revisited both from a regulation standpoint AND legislative initiative once the 2022 session was called to order in January 2022.

It is expected in the coming days that a resolution will be crafted and circulated to the member county Federations and other associate voting members for immediate consideration, as the urgency is clear, and action in the state legislature could potentially be swift if the measure is brought back up. Many problems and unintended consequences could unfold if this opt out measure is adopted one way or the other, as many landowners that allow a snowmobile trail across their property have indicated revoking this permission if a county legislature can dictate to them what they can and cannot do on their lands concerning a duly established hunting opportunity. Many have cited the lack of snow pack during the end of December preventing trails from being groomed and opened for the Christmas through New Years period.

As it stands today, it appears this year will be another holiday week of low to no snow pack, making the opt out and concerns over economic losses a moot point. But the larger issue of counties opting in or out of state-established fish and game laws and regulations is what must be halted, otherwise NY would see a patchwork of differing rules and regulations, bringing confusing enforcement, handicapped effective wildlife and fisheries management, and ultimately big declines in the conservation fund revenue generating sporting license sales in response.

A strong and unified position opposing such moves now and in the future will best protect the traditions, activities, and effectiveness of conservation in New York State, to the benefit of all.

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