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.
