A number of years ago, the Maine Department of Inland Fisheries and Wildlife (MDIF&W) elected to join a national trend to consolidate and slick up its Plain-Jane hunting and fishing law book. With the help of a private publishing firm, the law book was dressed up in an attractive magazine format, complete with eye-catching graphics and color advertising. The Department saw this, at the time, as a win-win move: DIF&W received a percentage of the advertising dollars and was able to “farm out” much of the publication preparation to its private partner.
Insofar as I know, the transformation has been well accepted and free of controversy. Of course, nobody likes the idea that there is such a hopeless labyrinth of hunting /fishing laws and regulations, but this is a fact of life that cannot be attributed to the change in the law book’s format.
There has been a new twist, though. In a recent court case, a trial judge ruled that IF&W’s law book is not a law book. The judge writes,”I don’t consider that publication a law book. I consider it to be what it says it is, it’s a magazine…”
The case involved a hunter, Harvey Austin Jr., who was summonsed by three Game Wardens after failing to label a tree stand that he erected last October. Austin went to court, arguing that the tree stand had not been completed and — under the law as he read it in the “law book” — he should not have been charged.
The magazine “law book” states that a person must label the stand before he “erects and uses” it. The defendant told the judge that he was innocent because he had written permission from the landowner, and the unused stand was not yet completed and ready for use.
At the outset of the trial, the judge, calling a recess, urged the district attorney and Austin to settle the matter between them. According to Austin, the DA offered to drop the case if he would simply donate $20 to Operation Game Thief. (According to Austin, it was an anonymous tipster call by a disenfranchised relative to OGT that led to the summons).
Austin, still protesting his innocence, said “No way” to the DA. “ I wouldn’t pay 20 cents to that outfit.”
The trial continued.
Although Austin was not exonerated by the judge, he did get off light with a suspended fine, and didn’t even have to pay court costs. The judge, clearly annoyed by the language problem with IF&W’s regulation handbook, was more or less sympathetic, asserting that the magazine “misstates the law.” In the actual statute, the phrase in question is slightly different. It is “erect OR use.” Although this may be a hair-splitting distinction, it can be argued that there is, indeed, a difference in the meaning between “erect or use” and “erect and use.”
Austin, not wanting to have this misdemeanor infraction on his record, appealed his case to the Maine, Supreme Judicial Court. The Law Court affirmed the lower court ruling, with one exception. It disagreed
that the language difference between “or use” and “and use” held any legal significance for this case.
Bottom line, the Law Court ruled: the defendant broke the law when he failed to label his stand after putting it up, use or no use, finished or not finished.
What does all of this bode for the future? Are there implications for us sportsmen in the lower court conclusion that the IF&W law book is not a law book, but a magazine? To be honest about it, I am not sure. My email query to the Chief Warden has not been answered as of press time.
The Skowhegan attorney, Lawrence Bloom, who handled the appeal to the Law Court and who is not a sportsman, believes that despite the final ruling, there are “huge” implications for sportsmen, and the credibility of the magazine “law book,” as well.
Austin’s thoughts, now that it’s over? He spent over $10,000 fighting this through the courts and, even though he could have resolved the issue by merely ponying up a $20 donation to Operation Game Thief, he has no regrets.
“There was a principle involved,” he argues. “ The wardens were unreasonable and so was the entire governmental process, from the DA’s office to the Fish and Wildlife Department. They finally returned my confiscated tree stand and trail cam, but you wouldn’t believe the warden manpower and time they spent on this issue, an unlabeled tree stand. What a joke!”
The author is editor of the Northwoods Sporting Journal. He is also a Maine Guide, co-host of a weekly radio program “Maine Outdoors.” His e-mail address is paul@sportingjournal.com . He has two books “A Maine Deer Hunter’s Logbook” and his latest, “Backtrack.”
Send questions/comments to the editors.
