Judge dismisses lawsuit based on TN ‘right to hunt and fish’

A judge has dismissed a lawsuit contending that commercial fishermen’s rights under a 2010 amendment to the Tennessee constitution were violated by restrictions imposed on catching paddlefish in state lakes and streams.

The May 14 ruling by Davidson County Chancellor Russell T. Perkins is apparently the first judicial opinion interpreting Article XI, Section 13, of the state constitution, which declares Tennesseans have a “personal right to hunt and fish.”

The Tennessee Commercial Fishermen’s Association and the Tennessee Roe Fishermen’s Association had also challenged on other grounds paddlefish restrictions — including a complete ban in some areas — that were adopted in 2008 by the Tennessee Wildlife Resources Commission, now known as the Tennessee Game and Fish Commission.

Perkins ruled for the commission and against the associations on each of the other claims as well. They included assertions that the Legislature had wrongfully delegated its authority to the commission, that the regulations were adopted contrary to requirements of the state’s Open Meetings Act and that one commission member had a conflict of interest.

Paddlefish, native to Tennessee, are commercially valuable both for their flesh and their eggs, which are processed as caviar. State fishery biologists say populations have been substantially reduced by overfishing in some areas.

The judge said in his ruling that the constitutional amendment, while granting Tennesseans an individual right to hunt and fish, declares that right is subject to “reasonable regulations and restrictions” and shall not “limit the state’s power to regulate commercial activity.” He also observed that the questioned restrictions were imposed before the amendment was adopted by voters in November 2010.

“Contrary to plaintiffs’ assertion, the language of this amendment does not appear to limit any right the state had to regulate commercial activity before the amendment passed nor does it indicate that it should be interposed to retroactively set aside previously adopted wildlife regulations,” Perkins wrote.

“This provision does not, in itself, restrict the state’s right to regulate commercial fishing and does not turn the personal right to fish using traditional methods ‘to take non-threatened species’ into a limit on the state’s power to regulate commercial fishing,” he said.

The fishermen groups contended that, since violation of commission rules can result in criminal penalties, the Legislature lacked authority to delegate its constitutional role in setting penalties to the panel. But the judge said the penalties are actually set by legislatively-enacted statute and the legislatively-approved laws establish “adequate guiding standards” for developing commission rules.

He also found the commission had properly followed the Open Meeting Act requirements for notice and public hearing, including one meeting where a lawyer for the fishermen made an hourlong presentation.

Perkins wrote that it was “problematic” that Michael Chase of Knoxville, a commissioner at the time, had “expressed a personal preference for fishing for sport or subsistence as compared to commercial fishing” and then voted for one of the regulations, which was approved on a 5-4 vote.

But the judge said Chase ‘testified credibility” at trial that his vote was based on a belief that there was a “risk of depletion” of paddlefish and observed the commissioner had “no pecuniary interest” in the outcome of the vote. Given those circumstances, Perkins found there was “no cognizable conflict of interest” that should impact validity of the vote.

Michael Butler, CEO of the Tennessee Wildlife Federation, said the judge’s ruling is “a significant win for wildlife and wildlife enthusiasts.”

The Federation actively pushed for enactment of the constitutional amendment, initially in the Legislature and later in a 2010 campaign. The amendment was approved by voters Nov. 2, 2010, with support of 1,289,544 voters and opposition from 147,506.

“First, it (Perkins’s decision) reinforces that the wildlife experts at TWRA will continue to be able to manage wildlife for the public, without interference from groups promoting their own self-interests,” said Butler. “Secondly, it is clear in the language of the ruling that our recently ratified amendment to the Tennessee Constitution — the Right to Hunt and Fish — has been properly interpreted and does not provide commercial interests special rights over our public wildlife resource.”