Enforcing the Laws of Wildlife and Recreation (Part Two)

By Kenneth J. Peak, Ph.D.
Wildlife officer arresting suspect in front of truck. Photo from Washington Department of Fish and Wildlife.

Washington Department of Fish and Wildlife Photo


People in the United States love to hunt, fish, and spend time in nature. They devote a lot of time and money to these pursuits. However, such activities often bring crime and disorder because some individuals violate the laws intended to protect natural resources. Wildlife and conservation officers fill an important and dangerous role in their enforcement of these laws.1


While policing literature abounds with information regarding federal, state, and local law enforcement agents, comparatively little addresses the role of wildlife officers. To fully explore this topic and to help fill the gap in the literature, the FBI Law Enforcement Bulletin presents this article in two parts. The first addressed legal authority, general duties, forensic examinations, field investigations, inherent dangers, and use of force by and against these personnel.2 This second part focuses on factors affecting conservation officers’ use of discretionary authority, as well as technologies and legal loopholes employed by violators.

Discretionary Use of Authority

Wildlife officers exercise their discretionary authority in terms of when to cite and arrest law violators. The individual’s behavior, as well as the officer’s attitude and emphasis (perhaps influenced by the agency) on enforcing certain types of offenses, can impact the choice to invoke the full letter of the law.

Dr. Kenneth J. Peak

Dr. Peak is a professor emeritus in the Department of Criminal Justice at the University of Nevada, Reno.


Fair Chase Concept


A decision on selective enforcement can turn on the “fair chase” concept, the century-old belief that game animals deserve a sporting chance and that hunters need to follow this practice. One well-known game-scoring and record-keeping organization describes fair chase as “the ethical, sportsmanlike, and lawful pursuit and taking of any free-ranging wild, native North American big game animal in a manner that does not give the hunter an improper advantage over such animals.”3 Today, the concept has expanded; most of the United States has banned nighttime big game hunting with or without artificial lights, with exceptions made for specific animals in certain states and nuisance species.4

Poaching

Illegal trade in wildlife has become a profitable global business—worth at least $19 billion per year. It represents the fourth-largest criminal enterprise in the world, following drug smuggling, counterfeiting, and human trafficking.5

Although rhino horn and elephant ivory black market trading represent international problems, people rarely smuggle these items into the United States. Three prominent types of illegal killing and selling of wildlife prove exceptions because of their religious or perceived medical purposes. They include eagle feathers, deer antlers, and bear gallbladders.

Bald Eagle Soaring with Wings Expanded


Eagle Feathers

Federal law prohibits most people from possessing eagle body parts, even from a poisoned bird or carcass.6 Still, conservation officers commonly see evidence that people disregard this area of law, finding eagles with portions missing, particularly the feet.7

A bald eagle carcass recently sold for more than $1,000. A single feather can fetch $500.8 Authorities arrested one Arizona man for six counts of unlawful possession of raptor parts and one count of unlawful kill of a golden eagle in January 2016 near Elko, Nevada. They also seized 124 eagle and hawk feathers taken from at least two or three separate birds and with a black market value of up to $10,000.9

Deer Antlers and Velvet

Antler tissue grows annually and at a rate depending on the animal’s testosterone and other chemicals. Velvet—the fine, soft membrane cover—also grows. Underneath, the antlers receive a rich supply of blood and nutrients from veins.10

In Asia, people dry velvet antler and sell it in the form of slices or powders. Buyers then boil it in water, usually with other herbs and ingredients, to make a medicinal soup. Doctors often prescribe antler-derived products to treat certain medical conditions. Or, people may make a traditional Chinese soup.11

Bear Gallbladders

Thirty-four U.S. states ban trade in bear gallbladders and other parts, realizing that commercialization leads to poaching. Still, the demand has fueled an international trade industry. As with deer velvet in Asia, people long have coveted bear gallbladders for use in traditional medicine, believing the gall’s bile can cure a variety of ailments, including blood and heart disorders, hemorrhoids, sexual impotency, and fevers.12

Hunters kill an estimated 80,000 black bears annually in the United States and Canada, only half legally. Undercover investigations revealed that a dried bear gallbladder can be worth as much as $30,000, and people will pay up to $1,400 for a single serving of bear paw soup. Worldwide trafficking of bear parts is valued at $2 billion.13

Severity of Offense

The significance of the crime influences conservation officers’ discretionary use of authority and largely determines whether or not they employ the full force of the law. In other words, serious offenses more likely result in arrest.

Certain types of crimes, such as the sale and illegal transport of particular animals and game parts, will not result in breaks for poachers of endangered species and other scofflaws. In a study, conservation officers ranked the four most serious offenses.14

  1. Killing or attempting to kill deer by aid of light, or spotlighting
  2. Shooting from the road, especially from a vehicle, to acquire game
  3. Illegally taking fish or game during the closed season and exceeding bag and creel limits
  4. Trespassing on posted property to hunt or fish15

Various factors can influence wildlife officers’ judgment on whether to arrest or cite violators. Sometimes, several may affect the decision.16

“Wildlife officers exercise their discretionary authority in terms of when to cite and arrest law violators.”

Available Evidence

Most boating, fishing, and gaming laws constitute misdemeanors; usually, an officer must witness the offense before making an arrest. For wildlife officers, success requires persistence and the skill to put oneself in a position to observe offending behavior. In addition to on-view arrests, officers also make cases on circumstantial evidence, citizen testimony, and suspect confession.17

And, they often resort to bluffing to outwit offenders. For instance, conservation officers may tell suspects that an anonymous witness will testify. One officer admitted to carrying a plastic bottle filled with hydrogen peroxide. During bow season, he tells suspected violators that he has a chemical that identifies bullet wounds by foaming. Officers can devise inventive bluffs.18

Prior Record or Contact

Generally, a suspect’s police contacts or arrest record will result in more “letter of the law” treatment. Wildlife officers acknowledge the significance of an individual’s numerous complaints, arrests, and encounters with police.19

Offender’s Age

Officers often give leniency to young or elderly offenders. However, they generally do not encounter juveniles because individuals under 16 years of age typically do not need a fishing license. Regarding hunting, although a minority of youths need a license by age 12, they usually do not hunt by themselves or with their peers. Culturally, hunting often serves as a rite of passage for young people who accompany and learn from adult family members.20 Legal and cultural forces, then, limit the juvenile population at risk of violating fish and game laws.

Complainant’s Preference

The preferences of the complaining party often influence an officer’s use of discretionary authority.21 Specifically, if a complainant or victim wants officers to make an arrest, the probability increases; the opposite also holds true. Although most summonses result from proactive, on-sight law enforcement, a complainant’s preference can influence cases. For instance, a property owner may prefer not to cite a trespasser, which, in effect, provides the offender with ex post facto permission to hunt or fish on the property.22

Reason for Violating

Today’s officers generally hold skepticism toward anglers and hunters who claim that they must take fish and game for survival. However, on rare occasions, wildlife officers remain open to the possibility that such circumstances might exist.23

Changes in Applicable Law

Amendments to the law also affect conservation officers’ use of discretionary authority. For example, in one state during the first year in which hunters had a legal mandate to wear blaze orange vests, officers issued few summonses to persons violating the rule. Similarly, when a new personal flotation device was required and boat cushions no longer qualified, violators typically received warnings.24

Deer with Velvet on Antlers

“Today’s technology…presents challenges for wildlife officers.”

Challenges of Technology

Today’s technology has introduced modern equipment to the world of outdoor sports and recreation. This presents challenges for wildlife officers.

Drones

The use of unmanned aerial vehicles, or drones, now presents a major issue in the United States in terms of their use both by and against officers. Today, an unskilled hunter can obtain and use such high-tech equipment to spot and locate game.

Because of the growing use and popularity of drones, some states have addressed their use under the fair chase concept. New state laws prohibit hunters from flying such devices for spotting game within 48 hours before, as well as during, the season.25 Of course, conservation officers themselves likely will adapt drones for their own purposes to a much greater extent in the near future.

Electronic and Precision-Guided Rifles

Another problem concerns the capabilities of today’s hunting rifles. These precision-guided firearms, designed to improve the accuracy of shooting at extended ranges, greatly improve success at distances beyond 1,000 yards.26

Officials in some states want to ban these rifles, which “can make a novice shoot like a pro…‘something out of science fiction.’”27 Such weapons, costing $10,000 to $30,000 each, often have the capability to stream video and heads-up display; the user marks a target with a button and pulls the trigger, and the gun fires itself once the scope locks onto the correct spot.28

Their use for hunting animals obviously raises questions as to whether such firearms violate the fair chase concept. Companion issues center on whether such firearms give those who can afford the technology an unfair advantage over those who cannot and if using such equipment embraces the true spirit of hunting at all.


Law, Legal Loopholes, and Moral Dilemmas

Wildlife officers apply certain federal and state court decisions in the field. These include such major U.S. Supreme Court rulings as Miranda v. Arizona (right to remain silent and right to counsel during custodial questioning), Terry v. Ohio (reasonable suspicion to detain a suspect or stop the individual’s vehicle), probable cause to search and arrest, and others that govern police actions under the rule of law.29

Missouri v. McNeely addresses the involuntary drawing of blood from someone suspected of an alcohol-related offense. In short, the Court held five to four that such a blood draw is a “search” as referred to in the Fourth Amendment and that officers generally need a warrant.30

The Lacey Act

Passed in 1900 the landmark Lacey Act became the first federal law protecting wildlife. It provides for civil and criminal penalties for the illegal trade of animals and plants and forbids importing, exporting, selling, acquiring, or purchasing prohibited fish, wildlife, or plants.31 Today, multiple U.S. government agencies, such as the Fish and Wildlife Service, Department of Justice (through its Environmental and Natural Resources Division), and Immigration and Customs Enforcement, enforce the act’s provisions.32

History has shown that state laws often do not deter criminal trafficking of fish and wildlife; further, they often vary. Thus, the Lacey Act provides consistent legal standards and enforcement support while allowing successful prosecutions that carry higher fines and tougher penalties.33

Fraud Involving Residency

An area of law that can prove time consuming for wildlife officers to enforce concerns states’ residency requirement for hunting and fishing. This matter carries tremendous potential for violators to commit fraud. Some may, for economic reasons, seek a cheaper hunting or fishing tag, which harms state revenue and takes a highly coveted tag from a resident. Others might cross a state line to pursue a particular species.34

Some hunters and fishers obtain a post office box or use a friend’s address to support their claim of residency. Conservation officers often find investigating these matters difficult, often amassing a considerable amount of information concerning the suspect’s utilities, place of employment, cell phone, vehicle registration, additional addresses, taxes paid, and other data. Then, the district attorney must have sufficient evidence with which to file charges. Officers may hesitate to pursue these arduous cases because while some states categorize lying about one’s residency as a felony, others consider these offenses misdemeanors.35

Other Ploys

Wildlife officers also must address ruses used in hunting. For example, hunters caught spotting game out of season simply can say that they seek coyotes, for which some states allow hunting year-round. Officers must catch them in the act of shooting, for instance, a buck.36

Also, state laws may prohibit the use of artificial light for hunting big game animals, but counties could allow spotlighting at night for coyotes so ranchers can protect their livestock.37 For conservation officers, do they opt to wait until the hunter shoots an animal to make a case? To overcome this dilemma, some states have statutory language that prohibits “casting of light while in an area where game animals are found, while in possession of a weapon.”38 Therefore, if an officer sees someone using light in a game area, it is prima facie evidence of a crime.

Conclusion

This two-part article has described facets of wildlife law enforcement and conservation. Clearly, many parallels exist between the work of these officers and their municipal and county counterparts. Both work in increasingly dangerous environments, often alone and confronting perhaps well-armed violators who use enhanced technologies to commit their crimes. The roles of each also have become more complicated as new laws, methods of detection, offenders’ attempts at evasion, and forensic investigations challenge even the most seasoned veteran.

With human populations and their desire for outdoor recreation growing, conservation officers must help preserve nature’s gifts and resources for future generations. They need to do their part to educate the public about and protect the nation’s natural resources. “If the flora, fauna and wild places we treasure are to survive for future generations, we must conserve them. And to conserve them, we must protect them.”39

“With human populations and their desire for outdoor recreation growing, conservation officers must help preserve nature’s gifts and resources for future generations.”

Dr. Peak can be reached at peakk@unr.edu.


Endnotes

1 For this article the titles “wildlife officer” and “conservation officer” are used interchangeably to represent all such personnel who enforce wildlife and environmental laws.
2 Kenneth J. Peak, "Enforcing the Laws of Wildlife and Recreation (Part One)," FBI Law Enforcement Bulletin, September 2017, accessed October 19, 2017, https://leb.hgwc.me/articles/featured-articles/enforcing-the-laws-of-wildlife-and-recreation-part-one.
3 “Fair Chase Statement,” Boone and Crockett Club, accessed April 25, 2017, https://www.boone-crockett.org/huntingEthics/ethics_fairchase.asp?area=huntingEthics.
4 “Technology and the Fair Chase Ethic,” Congressional Sportsmen’s Foundation, accessed April 25, 2017, http://sportsmenslink.org/policies/state/technology-and-the-fair-chase-ethic.
5 Robin Sax, “Advocating for Wildlife,” Al Jazeera America, December 15, 2014, accessed April 25, 2017, http://america.aljazeera.com/watch/shows/techknow/articles/2014/11/7/advocating-for-animals.html.
6 Registered Native Americans can possess eagle feathers under certain circumstances. See 50 C.F.R. § 22 (2008).
7 Kris Millgate, “Fighting Eagle Poaching When a Single Feather Goes For $500,” Oregon Public Broadcasting, May 18, 2015, accessed April 25, 2017, http://www.opb.org/news/series/wildlife-detectives/fighting-eagle-poaching/.
8 Ibid.
9 Pat Thomas, “Man Arrested for Illegal Killing of Eagle,” KOLO 8, December 28, 2016, accessed April 25, 2017, http://www.kolotv.com/content/news/Man-Arrested-for-Illegal-Killing-of-Eagle-367380051.html.
10 Subhuti Dharmananda, “Deer Antler to Nourish Blood, Bone, and Joints,” Institute for Traditional Medicine, January 2005, accessed April 25, 2017, http://www.itmonline.org/arts/antler.htm.
11 Ibid.
12 Joonmoo Lee, “Poachers, Tigers, and Bears...Oh My–Asia's Illegal Wildlife Trade,” Northwestern Journal of International Law & Business 16, no. 3 (Spring 1996): 497-515, accessed May 17, 2017, http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1437&context=njil.  
13 INTERPOL, Assessment on Illegal Bear Trade (Lyon, FR: Environmental Security Sub-Directorate, 2014), 1-5.
14 Timothy J. Carter, “Police Use of Discretion: A Participant Observation Study of Game Wardens,” abstract, Deviant Behavior 27, no. 6 (November 2006): 591-627, accessed April 5, 2017, http://www.tandfonline.com/doi/pdf/10.1080/01639620600781555.
15 Ibid.
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.
21 Lawrence W. Sherman, “Causes of Police Behavior: The Current State of Quantitative Research,” abstract, Journal of Research in Crime and Delinquency 17, no. 1 (1980): 69–100, http://journals.sagepub.com/doi/abs/10.1177/002242788001700106.
22 Carter.
23 Ibid.
24 Ibid.
25 Nev. Admin. Code 503.148 (2016).
26 Brian Dodson, “TrackingPoint Precision-Guided Rifles Decide When to Take Their Own Best Shot,” New Atlas, December 3, 2012, accessed May 17, 2017, http://newatlas.com/trackingpoint-precision-guided-firearms-scopes-digital/25264/.  
27 T. Turnipseed, quoted in Alex Corey, “Nevada Hunters Give Thumbs-Down to Drones, Electronic Guns,” Las Vegas Review-Journal, February 1, 2016, accessed April 25, 2017, http://www.reviewjournal.com/news/nevada/nevada-hunters-give-thumbs-down-drones-electronic-guns.
28 Corey.
29 Miranda v. Arizona, 384 U.S. 436 (1966); and Terry v. Ohio, 392 U.S. 1 (1968). For an excellent overview of the rule of law regarding wildlife officers across the United States, see Brian Surber, “Search and Seizure for the Oklahoma Game Warden,” The Oklahoma State Game Warden Association, accessed April 26, 2017, http://www.okgamewarden.com/PastIssues/2005-Issue2/Search_and_Seizure.html.
30 Missouri v. McNeely, 569 U.S. ___ (2013). McNeely involved a routine driving-under-the-influence case in which no exigent circumstances were present.
31 U.S. Fish and Wildlife Service, International Affairs, Lacey Act, accessed April 26, 2017, https://www.fws.gov/international/laws-treaties-agreements/us-conservation-laws/lacey-act.html.
32 U.S. Department of Homeland Security, Illegal Trafficking of Wildlife and Other Natural Resources, September 14, 2016, accessed May 17, 2017, https://www.dhs.gov/sites/default/files/publications/Immigration%20and%20Customs%20Enforcement%20-%20Illegal%20Trafficking%20of%20Wildlife%20and%20Other%20Natural%20Resources.pdf.
33 U.S. Fish and Wildlife Service, The Importance of the Lacey Act: The Nation’s Champion Legislation Against Wildlife Crime and Illegal Wildlife Trade (April 2, 2014), accessed April 26, 2017, http://www.fishwildlife.org/files/LaceyAct_FactSheet.pdf.
34 Randy Lusetti, game warden, Nevada Department of Wildlife, Division of Law Enforcement, interview by author, Reno, NV, February 26, 2016.
35 Ibid.
36 Ibid.
37 Ibid.
38 Ibid.
39 “A Better Planet,” North American Game Warden Museum, accessed April 26, 2017, http://gamewardenmuseum.org/wp/why-a-museum/about-a-better-planet/.