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The GTFO Comment on the Arizona Game and Fish Trail Camera Ban

I write to express my strong disapproval of the Commissions proposed trail camera ban in either form proposed.  After reviewing the published PowerPoint demonstration, the Memo requesting approval of rulemaking docket opening, and listening to the audio of the Commission meeting, I have heard nothing to support the Commission’s desire to ban trail cameras.  The Commission brings forth several justifications, but failed to provide any information to support those justifications.  Most significantly, absolutely no information was presented to explain why trail cameras eliminate the Fair Chase ethic from hunting.  Instead, the Commission makes unsupportable claims that trail cameras remove the need to obtain hunting skills and makes it virtually impossible for game to elude take.  Many of the Commission’s claims ring false and/or significantly overblown and have had the effect already of creating animosity among the hunting community towards the Commission, expressed on various internet sites. 

Additionally, the proposed ban, in either form, will be virtually unenforceable and will create an investigative burden on wildlife managers.  It might also create animosity between hunters and wildlife managers.  Finally, an outright ban on trail cameras might ultimately turn away hunters, new and seasoned alike, by removing opportunities to learn about wildlife they wish to pursue.

The commission presented multiple future concerns about the proliferation of trail cameras and the growing market simply for deploying and checking cameras.  These concerns can be addressed short of an outright ban on trail cameras.  It seems that everyone well knows that any actual problematic use of trail cameras is limited to a few specific places around the state.  For a department that has broken the state into over 50 distinct units with differing regulations and manages the take of numerous species through numerous means, it is curious that using trail cameras is the one activity that needs a one-size-fits-all statewide solution.  The Commission is either aware of the problem areas—or can easily learn that information—and can regulate only those areas. 

If the Commission does have statewide concerns, I do not know why a licensing and labeling system was considered and dismissed in the past, but that seems the most effective manner to regulate the use of trail cameras.  Trail camera use in the aid of the take of animals can be tied to the possession of a valid hunting license, with a fee for the privilege of using each camera, and a limit to the number of cameras any licensed hunter can use.  The hunter would have to register the GPS coordinates of any placed camera with the Department to make identification of rogue cameras easier.  This would eliminate the concern of camera setting businesses, it would reduce the number of cameras in the woods—thus both reducing the impact on water holes and any ability for a hunter to pattern an animal.  This could also provide an additional revenue source for the Department—money that could be used to help provide water, restore water holes, provide education to hunters about disrupting wildlife at water, or any other Departmental use.

Some other alternatives might be restrictions on the days that a camera can be checked; restrictions on how close to a waterhole someone can drive (helping to reduce disruption of watering animals); and restrictions on approaching a water hole when there is wildlife or livestock watering. 

The proposed regulations will be virtually impossible to enforce.

Both options use the following language:  “A person shall not use a trail camera, or images from a trail camera, for the purpose of taking or aiding in the take of wildlife, or locating wildlife for the purpose of taking or aiding in the take of wildlife.”  But how will an officer be able to make that determination, short of a hunter simply confessing?  Any ban that can be defeated by labeling a camera as “bird watching camera” is an ineffective ban.   

This language will either result in underenforcement due to the extreme difficulty of connecting a hunter to a trail camera and connecting the trail camera to the take of wildlife; or it will result in overenforcement because of an officer making too many assumptions to support their citation.  And because as the Commission itself notes “cameras may be and are used for many purposes, not just for locating wildlife for the purpose of take” it is unlikely that an officer would have reasonable suspicion that a crime was being committed, or would have probable cause to obtain a warrant to search or seize the camera. 

Commissioner Geiler expressed concern about the burden that a ban on trail cameras would place on wildlife managers.  I have considered a multiple different scenarios and the problems they will present for enforcement from my perspective as a criminal-defense attorney.  Simply put, short of a full confession, I cannot think of a scenario that I could not successfully defend a client against an allegation that they used trail cameras to aid in the take of animals. 

Scenario 1 – Officer finds a trail camera over a game trail.  The officer has no idea whether that camera is being used in conjunction with the take of game.  The officer cannot legally take any action due to the lack of probable cause.

Scenario 2 – Officer finds a trail camera over a game trail with someone retrieving images.  The officer can approach the person and engage in a consensual encounter.  But unless incriminating comments are made, the officer can take no further action due to lack of probable cause.

Scenario 3 – Officer finds a trail camera over a game trail with someone carrying a hunting rifle retrieving images during a hunting season.  The officer can approach the person and engage in a consensual encounter.  But, because of the multitude of uses of trail cameras, it is unlikely that the officer would have reasonable suspicion that a crime was being committed.  Reaching the level of probable cause necessary to make an arrest or obtain a search warrant would be even more unlikely. 

Even if a search warrant was obtained, it is unclear how viewing and seizing images would be of any evidentiary value.  Any individual—even hunters—would still have the right to use trail cameras for any reason other than “locating wildlife for the purpose of take.”  Nothing about a hunter using a trail camera in hunting season means that the hunter was using it in the connection of taking wildlife.

Scenario 4 – Officer finds a trail camera over a game trail, and a hunter with a freshly harvested animal nearby.  The officer may approach the hunter and engage in a consensual encounter.  But unless the hunter makes incriminating statements, the officer can take no further action due to lack of evidence connecting the hunter to the camera, and the camera to assisting the take of wildlife.  It is unlikely that this would even constitute probable cause to obtain a search warrant to view images on the camera. 

Even then, it would be difficult to prove the camera was used to aid the take of wildlife without evidence that the hunter captured images of the specific animal taken, and was aware of those images prior to taking the harvested animal, and used that information to their assistance.

Scenario 5 – Take any of the previous four scenarios, but end them with a citation being issued because the officer made assumptions of illegal behavior.  This citation would likely be defeated in a later challenge due to the inability to prove the camera was being used to aide in the taking of wildlife.  Trust between game officers and the hunting community would erode.  And, depending on the facts of the encounter, the Department could be civilly liable for violating the hunter’s constitutional rights if the hunter was detained without cause, if the trail camera was searched without a warrant, if the trail camera was seized without a warrant, etc.

Scenario 6 – a hunter decides to start quail hunting, but is unable to find sufficiently specific information on quail behavior and hangs a trail camera in his backyard to monitor the quail population there and learn from observation of their habits and diet to assist his hunting pursuits.  This hunter has violated the ban on trail cameras.  How will this be enforceable?

Scenario 7 – a small game hunter regularly finds large feline tracks in his hunting area.  Curious whether these are bobcat or mountain lion tracks, he hangs a trail camera in hopes of identifying the feline and knowing if increased safety precautions are necessary.  The hunter checks his camera while on a hunt and finds that the cat eluded the camera, but the camera takes numerous photos of rabbits and birds.  The hunter has no interest in the images of small game and, other than checking them for cat pictures, completely disregards all information therein.  He does, however, continue hunting rabbit and bird species photographed by the camera.

Assuming an officer observes this and detains the hunter, how does the hunter demonstrate that his use of the trail camera was not to aid in the take of wildlife when he was caught hunting small game, in the possession of harvested small game, and reviewing trail camera images of small game?

Scenario 8 – a hunter/photographer uses a trail camera to help take photos of an elusive desert bird.  In the course of using the trail camera for this purpose, he is surprised to learn that there is a small deer population in the area.  If the hunter purchases a tag and hunts those deer, has he violated the ban on trail cameras?  If so, how long does the hunter have to wait until he can hunt those deer?  Or, since his knowledge of the deer population solely arises from use of the trail camera is he forever prohibited from hunting that deer population?

Scenario 9 – a hunter who also raises chickens in a rural part of the state whose property borders public land is suffering from chicken depredation.  He places several trail cameras around his property and on the public land to help him determine what predators are eating his chickens and their eggs.  The cameras help him determine that racoons, possums, coyote, and bobcat have all preyed on his chickens; he also incidentally captures images of javelina and mule deer.  Again, are all of these species off limits for him to hunt now?  Must he stop hunting the public land in his own back yard?  He had never put in for mule deer in his home unit because he didn’t think there were any there to hunt…is he now forever ineligible to put in for muleys there because the trail camera aided in his take of wildlife—or is he fine to hunt all of these species and the muleys because he didn’t put the cameras out to aide with the take of wildlife, just to learn how to protect his chickens?

Scenario 10 – a trophy hunter places trail cameras at multiple tanks to determine which are frequented by large bull elk and buck deer.  He checks them regularly and determines where his best chance of taking a trophy will be.  He successfully draws a bull elk tag in his preferred unit and relocates all of his cameras there to fully reconnoiter the elk. He is observes that a mature 6x6 visits a particular water hole every 3-4 days.  He sets up a stand and early in the season harvests the animal.  On the pack out he also removes and packs out his cameras.  A wildlife manager finds him with the elk and the cameras.  The hunter explains that the cameras were used to pattern cattle to ensure that his hunts were done in a place and time that wouldn’t disrupt the cattle at the nearby water hole.  Given that the Commission explicitly acknowledged that using trail cameras for hunting is such a minor portion of the total use of trail cameras that its ban won’t have an economic impact, how does the wildlife manager issue a citation or even gain access to the camera images after being given an explanation for the cameras that doesn’t violate the ban?

 

Decision is based on anecdotes rather than substantial evidence, it is not least the intrusive method or most effective of the alternatives available

The Commission identifies multiple concerns related to the use of trail cameras, but justifies its proposed rule change solely as a “fair chase” issue.  Interestingly, the Commission appears to be the only hunting body in the US that considers a trail camera (without wireless or cellular technology) a violation of fair chase principles and is on the verge of making Arizona the only state in the country to ban their use.[1]  In fact, the Pope & Young Club doesn’t even consider the use of a wireless trail camera to be an automatic violation of fair chase principles.[2]  So the Commission’s belief that the use of any trail camera violates fair chase ethics is breaking new ground—and doing so without a reasonable perspective on the effectiveness of a trail camera.

The Commission implies that trail cameras permit a hunter to locate or take wildlife without possessing hunting skills or competency and/or that their use almost guarantees harvest because the use of a trail camera would prevent wildlife from eluding take.  The Commission, however, provides no support for these sweeping, fantastical, claims about the effectiveness of a trail camera.  As a hunter who has never realized such enormous benefits from the mere use of a trail camera, I can only conclude that the Commission either has no actual or anecdotal knowledge about the use of trail cameras; that this justification is a mere pretext; or that the Commission is addressing a problem limited to a small population in the hunting community, namely guides and outfitters, in a heavy-handed manner that impacts all hunters.

First, for a trail camera to have any effectiveness, it has to be placed in a location where animals already exist.  Simply finding a productive location to place a trail camera already requires a meaningful amount of hunting skill and effort to scout that location.  The commission expressed concerns that skills “grandpa” taught would be overrun by technology.  This ignores the fact that most hunters deploying trail cameras need to be able to utilize those skills to determine placement of a trail camera.

Second, merely knowing that animals exist in a location—or even patterning their behaviors—in no way “almost guarantees harvest.”  As almost any hunter who has used trail cameras to aid their personal hunt knows, finding an animal with a trail camera is in no way a guarantee of being able to harvest that animal.  Cameras do not prevent game from eluding a hunter or from changing their behaviors due to hunting pressure or rutting behavior.  Cameras do not destroy an animal’s sense of smell, hearing, or sight.  Indeed, almost as common as sharing photos of a successful harvest is sharing photos of the animal that showed up on the camera all year then vanish once the season starts.

I have used trail cameras on my family’s farm in Virginia for years, both to help decide where to hunt and to simply see what wildlife exist.  Those cameras always capture images of deer, bear, coyote, and turkey.  But despite weeks of hunting each year, I have never even seen—much less harvested—any of the animals that were captured on camera in the preceding months.  By contrast, this year in Arizona I used a trail camera to try to verify the existence of deer in a nearby hunt unit.  The camera was hung after multiple scouting trips that logged many miles afield.  I finally located what appeared to be an active game trail and hung the camera.  When I returned to check it, the only photos taken were of me leaving and returning.  It turns out, that placing a camera is no guarantee of locating an animal, much less killing it.

A good friend has been chasing the same bull elk in the San Francisco Peaks for years.  Each year the elk shows up on camera.  And each year the elk eludes harvest either by changing his behavior or detecting the hunter. 

The idea that the use of trail cameras removes fair chase aspects from a hunt for the average hunter is laughable. 

The Commission notes that guides or outfitters use dozens to hundreds of cameras.  This behavior cannot be compared to the use of trail cameras by the average hunter who may have a handful of trail cameras, at most.  Using hundreds of cameras certainly could impact fair chase principles and remove some skill from a successful harvest. But that is a problem that requires a solution that doesn’t needlessly impact all hunters, and both proposed options the Commission has put forth are overly broad and impact individuals who are not the problem.  It is a drift net solution for a hook-and-line problem.

Effect on normal hunters (i.e. not guides or outfitters)

This overly broad ban on trail cameras (under either option) may have a deterrent effect on normal (non-guide) hunters by limiting the amount of information they are able to obtain about game, which would increase the difficulty of their hunts, which may deter them from hunting in the future.  Let’s not pretend that Arizona presents an easy landscape to hunt, overrun with big game animals, that results in all tags being filled.  It is a challenging environment to even the most seasoned hunter.

The commission notes “areas within Arizona become increasingly urbanized, more people are now living isolated from nature and outdoor activities such as hunting.”  Hunters are not immune to this isolation when their urban home, work commitments, family responsibilities, social activities, etc. combine to limit the amount of time they can spend in the field and place many miles between their homes and their hunting area.  For my friend who lives in Phoenix and hunts the Peaks, despite his efforts to spend many summer weekends in the woods scouting, a few well placed trail cameras are indispensable to his ability to make sure that his precious week off of work for an elk hunt is as productive as possible.

When I was drawn for elk in 2018, also in the Peaks, I used one trail camera to aid my scouting because I was also unable to constantly drive from Phoenix to Flagstaff.  And that year the camera was especially valuable because the lack of rain led to a severe fire risk and total closure of the forest for months.  Without that trail camera, I would have been limited to one weekend in April and one in September to gather as much information as possible about my hunt. 

Thanks to hunting knowledge and abilities gained from a lifetime of hunting, I was able to identify a portion of terrain that I felt would be utilized by elk.  When I hiked into that area, my instincts were somewhat confirmed by the presence of a large game trail.  And when I returned in September, in fact there were multiple images of bull elk taken by the camera.  Despite the trail camera’s taking pictures of elk, I was unable to replicate that success on my hunt.  Again demonstrating that a trail camera is in no way a guarantee of successful hunt.

Presently, my family responsibilities have drastically limited how much time I can spend hunting and scouting.  To maximize my few available Saturdays of hunting I had to relocate to the desert outskirts of Phoenix.  What these areas have in convenience, the lack in deer populations.  I don’t currently use a trail camera but intended to simply to determine if the area I want to hunt actually contains deer so that I can determine if my efforts would be completely in vain.  Too many unsuccessful efforts would lead to decreased interest on my part, and decreased patience with my absence from my wife...potentially resulting in me skipping an OTC deer tag next year. 

The Commission overlooks the excitement about hunting that trail cameras can create, and the web of benefits that can accrue from that excitement.  Like I mentioned above, I never had success harvesting any of the bear or large bucks captured on trail cameras.  But knowing there was a 12 point whitetail and a black bear that regularly visited the area of my tree stand motivated me to get up at 3:30 every morning to hike to my stand and sit all day in below or near freezing temperatures.  Knowing that animals existed got me out hunting.  The same applies here.  Knowing animals are present encourages hunting.  Sharing their presence with friends generates more hunting by demonstrating proof that a hunt in that area could be worth the effort.  New hunters may be motivated to take the field by learning that game is not as scarce as they imagined.

Additional Concerns

1 - Has the commission considered the impact on habitat and wildlife behaviors that will result from hunters spending additional time afield doing additional in-person scouting to make up for the information lost due to the trail cam ban?

As the Boone & Crocket Club says in its Fair Chase Statement, a fundamental ethic to “all hunting is the concept of supporting the conservation of natural resources.  [H]unting . . . in a manner that conserves, protects, and perpetuates the hunted population, known as sustainable use.”[3]

The Commission’s proposed trail camera ban, while giving lip service to fair chase ethics, will actually undermine the fundamental underpinnings of that ethic:  respect for and conservation of wild animals in their habitats.  “A variety of studies conducted over the last decade on wildlife like elk, wolverines, coyotes, and bobcats suggests that any human presence—be that on skis, snowmobile, ATV, or even on foot—can change the way animals travel, forage, and live in their home ranges. As more people venture into the wilds, animals are subjected to stress and must expend additional energy to flee from recreating humans, which in turn affects reproduction rates and individual survival.”[4]  While encouraging hunters to earn more sweat equity by spending more time afield scouting their hunts sounds noble, it will actually have deleterious effects on game and non-game animals as more hunters spend more time putting boots on the ground.  (The alternative is that hunters do not make this effort, have fewer successful hunts, and leave the hunting community—perpetuating one of the major problems of the sport’s future.)

Additionally, the ban on trail cameras and its consequential requirement of scouting afield, may result in considerably more miles being driven by hunters who have to drive back and forth to their hunting unit to engage in scouting due to the lost information from a trail camera.  Just taking myself into account, this would entail potentially thousands of miles driven to make more frequent trips back and forth to Flagstaff every year to scout.

2 - Has the commission considered the increase disruption of cattle at water tanks and elsewhere that will result from hunters spending additional time afield? Water sources will not stop being hot spots for hunting and scouting just because a trail camera cannot be used; it will simply mean that hunters/guides will have to make more frequent and/or longer trips to these tanks to scout—which would mean increased disruption to cattle.

As an aside related to the disruption of cattle, what about cattle ranching gives them preferential use of Arizona’s wild resources over hunters, outfitters, and guides?  Why must the hunting community bear the burden of the common resource rather than the rancher whose cattle cause more disruption to habitat than a hunter.

Conclusion

The Commission’s proposed trail camera ban is an overly broad and unnecessary prohibition against an important hunting tool.  The Commission fails to justify its proposal through anything but conclusory statements for which it presented no support.  The Commission’s justification of this ban as a fair chase issue is undermined by the Boone & Crockett Club’s support of the use of trail cameras, as well as the impact that additional boots-on-the-ground scouting will have on wildlife habitats and behaviors.  And the Commission fails to realize how important trail cameras can be to the recruitment and retention of hunters by being able to demonstrate the existence of game animals in a hunter’s preferred hunt area.  Finally, the ban is both essentially unenforceable and easily evaded.  For these reasons as well as every other expressed above, I urge the Commission to abandon this proposed ban and consider any of the suggested alternatives or to take no action at all.



[1] https://harvestingnature.com/2021/01/03/arizona-to-become-first-state-to-ban-trail-cameras/

[2] https://www.bowhunting.com/blog/2020/08/05/pope-young-club-clarifies-stance-on-cellular-trail-cameras/

[3] https://www.boone-crockett.org/fair-chase-statement#:~:text=HUNTER%20ETHICS,population%2C%20known%20as%20sustainable%20use.

[4] https://www.backpacker.com/stories/the-pacific-northwest-trail-is-pitting-hikers-against-grizzly-bear-activists#:~:text=Stories-,The%20Pacific%20Northwest%20Trail%20is%20Pitting%20Hikers%20Against%20Grizzly%20Bear,hanging%20on%20for%20dear%20life.&text=It%20was%20nearly%20dark%2C%20the,Trail%20through%20the%20Yaak%20Valley.

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