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January 24, 2008

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Discussion Topic: On High-Fence Hunting in Colorado

According to this NRA press release, proposed Colorado House Bill 1096 would:

[E]nd all hunting behind "enclosures" in Colorado. Under the far-reaching and vague bill, every piece of fenced property would be off-limits to hunting, no matter how large the enclosure. As written, it could preclude a farmer or rancher who fences his or her property from allowing anyone, including family or friends to hunt, regardless of the size of the property.

The bill itself reads:

What do you think? Does this bill overreach? Would you support any bill restricting high-fence hunting?


Tommy S.

Dang my conscience!
Mr Diehl you have a point!!!!!!
And I must apologize!!

If and this is an if to be legislated on, but...

If one were to own a large tract of land that wildlife biologists were to state: that deer would not leave as their home range - (whitetail deer do have home ranges that only really expand for bucks during the rut), then you could say one would be denying access to deer even if they had no high fence!!!!

So, in fact, if one owned say 500,000 acres or even less, and wildlife biologists proved to congress the deer were confined *by their nature* to this land; Mike is right.

Although, smaller tracts of land would not qualify because the deer come and go as they please.

Mr. Diehl - do we have an agreement?

Mike Diehl

"How can you say high fencing is OK, which is obviously keeping the deer from the public, but posting is not, which does not keep the deer on your land?"

I did not say "high fence hunting is ok." I said that raising deer as livestock on your own land, fencing them off, and doing any damned thing that you want with them (including chaining 'em to a stake and charging some slob $15K to shoot 'em or whatever), is legal, because deer raised *as livestock* are in fact private property, not public property.

If a high fence operation is allowing their livestock to damage public herds, or if they're allowing publically owned animals onto their land and then restricting access, that is a taking for which the public should be compensated, in my view.

Tommy S.

Mike read above your last post at 2:00 - I believe we can compromise.

Chad Love

I was pondering Mike's position a little more, and it got me to thinking.
On the face of it I can't support Mike's position, especially for small landowners of say, up to a thousand acres or so, but what about an upward-sliding scale?
What about huge, corporate-owned ranches that encompass 10, 15, 20,000 acres or much more? Those areas hold large numbers of the public's wildlife and it's highly unlikely that most of those animals will ever venture off that land, in essence making them the exclusive property of the landed gentry.
Hmmm, Ted Turner, anyone?
I could maybe get behind something like that, Mike.
I have no problem with enacting double standards for the mega-rich. They have legions of little people to deal with those trifling details...

Tommy S.

Damn Chad, read what I posted before yours - spooooooky!

Mike Diehl

[Trying to keep up here)

Chad Love: "But I think it's a stretch to say a landowner who hunts and has land with fences that don't impede wildlife can't post that land to other hunters unless he pays a fee to the government."

My Response: The game are publically owned. In my view all persons have the right to equal access to that game. This is an inherent property right that pertains to all citizens. It definitely comes face to face conflict with private property rights under land ownership. Under our system of governance, where public domain rights and private rights clash, there are usually exceptions for maintaining public access. In my view, it is a suitable compromise to require that anyone who posts private land not hunt on that land or else pay a fee for, in effect, establishing privileged access to public property.

Tommy S: "I would suggest you buy 30 acres that directly borders gameland."

My reply: "That's the plan. At this time, my plan does not envision posting the land, since I think maintaining open access is the kind of thing good neighbors and good citizens do."

Yooper Jack says: "Why would anyone own land if they couldn't use it?"

My reply: "That is a straw man argument. There are all manner of things that you cannot do on your own private land, and there are already public access rights that are recognized under US law and many states' laws that allow people on your land, even if it is posted. Since game animals are public property, I do not view my position as either exceptional or unprecedented or in any way unfair to private landowners. Nor does it follow that it would destroy private landownership. Private property rights have come with explicit limitations for 200 years and more, yet there is no Marxist banner waving over any state house in this great land. Thank the fates!"

Chad Love

You do raise a good point Mike, about some of the limits of private ownership in terms of navigable waterway access and public right-of-ways.
As I understand it there is a huge and ongoing debate over this in Great Britain right now between that nation's longstanding tradition of public rights-of-way for walkers and hikers versus wealthy landowners who are trying to bar access through their properties.
Same thing in Montana with stream access laws, same thing in Malibu with beaches. Neverending struggle between the have-a-lots and the have-nots...

Tommy S.


Read my and Chad's last posts, I think you will be pleased.

Mike Diehl

It seems to me to come down to this, the unspoken problem. Slob Hunters. Usually when I encounter people who have posted their land, it is because some yahoo was too close to their house, or trashed or vandalized property, or..... &c. I have no sympathy for people who simply post their property to that they can lease hunting access to someone else.

Is there a middle ground, however, for people who want to hunt their own land but don't want their own land trashed by others? There ought to be a way to do that, which weeds out yahoos, but presumes general public access to publically owned animals.

What the answer is I do not know.

Mike Diehl

"Read my and Chad's last posts, I think you will be pleased."

"Encouraged" is more like my feeling. At least we seem to understand each other, and agree that the problem is one of conflicting rights.

Funny that Chad should mention Ted Turner. I really don't know what his views are about public access, although I think he's done a splendid job restoring habitat and game on his ranch in SW New Mexico. As I recall, he charges a big fee, and his rates are waaaaaay out of my league.


What gets me is "normal movements." In the Lower Hudson Valley, we have lots of stone walls made of the crops of rocks farmers removed from their fields that the winter freeze-thaw would heave up every spring -- a gift of the glaciers. Now, we intentionally use these walls because they define funnels; deer do not move freely. If anybody allowed someone use of their property with such features, it COULD be construed as a violation of that law. Yes, it is supposed to simply make it illegal to run an 80,000,000 acre exotic game ranch, but it can be construed as making it illegal to hunt given any impact of any man-made structure on game movement.


Chad Love

I don't know for sure what his views are either, Mike, to be honest.
I do know there are a lot of people in Montana who despise him. I do know that if I make a short 60-mile drive across the border into SW Kansas and ask if I could take a walk and maybe snap a few pictures on Turner's Z-Bar ranch security would boot me off the place since I'm not wealthy and/or powerful and/or a celebrity.
So regardless of what he's done for the shortgrass prairie (a special concern of mine) it benefits only an elite group of have-a-lots, so I really pay no attention to Turner and I don't understand all the fawning he gets in the press.

Mike Diehl

He gets good press because he is a very generous philanthropist who, despite his preferences for managing his ranches, does alot of things to help lots of people, including poor n middle class mokes like you n me.

Why don't you write him a letter? Introduce yourself, explain openly that you can't afford his rates, but want to be able to pursue game on his land (or whatever you propose)? I know he probably wouldn't want you to shoot an Eland or whatever, but you might get a letter back that at least explained his position, even if it did not get you access.

Let me also be the first to admit this. The way most people read the law, "posting land and then hunting on it or leasing hunting rights" is perfectly legal, even though probably lots of people would agree with me that it's a kind of taking from the public. So whatever Turner is doing it is, at this time, apparently, legal.

And if I've given the impression that I regard people who post private land as two-headed demons, I regret it. I know some people post land bacuse they're desperate to keep yahoos away.

I'm just trying to avoid a future where every hunk of private land is posted, and where you can't cross private land to get at the public land because the public land is enclosed all around by posted private land, and where to get access to anything you have to pay large fees.


The restrictions that you describe include things like zoning, eminent domain, public thouroughfares, etc., are all considered "Public Good". In MI, I cannot block a navigable waterway. I have to surrender that property for a roadway, if ruled by a court. I cannot have a junkyard or nuclear power plant. What public good comes from me, either not being allowed to post my property, or me not being allowed to hunt on my property? Yeah, that opens another 80 acres for public hunting, but the land would be logged, sold to a timber company and the township tax base would suffer. At some point, the local governments and schools would cease to exist.


I wonder what group (PETA, etc) contibuted to writing this Bill. Apparently it's intent is to eliminate high, confining fences.

The taking of game animals in Colorado is well regulated and a tag is needed to take game animls by the non-landowner public.

Mike Diehl

"Yeah, that opens another 80 acres for public hunting"

That's a public good, and seems to me not to be the point.

"but the land would be logged"

That does not follow. As far as I know, no state declares vegetation on private land to be public property. The decision to log it or not would rest with the landowner, as I understand it.

"sold to a timber company"

Or to some other person who doesn't view taking public property as business as usual.

"and the township tax base would suffer"

I don't agree.

"At some point, the local governments and schools would cease to exist."

I don't agree.

Mike Diehl

Wups. Should have been "...and seems to me to be the point."


Mike ,Im trying to understand you. Maybe Im not the sharpest knife in the drawer. You are saying if I own say 100 acres that I payed for with my hard earned money and I post it legally I should not be allowed to hunt it myself? If this is what you are saying I just dont get it.Im not trying to chastise you. I just dont understand what you are getting at.

Mike Diehl

I don't see how I can be more clear. Unlike plants, livestock, capitol improvements, and most other forms of tangible property, wild game are publically owned property. Anyone who restricts access to publically owned property so that they can make exclusive use of it or exclusive profit from it should compensate the public.

I'd only make an exception for people who post property and do not hunt on that property, because (1) no one would be establishing exclusive access to public property, and (2) it would in effect create a safe harbor that would probably benefit game populations (caveat under the admin of G&F depts).


Mike, you missed my point. The utility that we derive from this land is hunting. We have timber, but its the only "old growth" in that area, so even though its way overmature. If we couldn't enjoy this utility, we would sell it. To maximize this sale, we would sell the timber first, then the land. Taxes on this are about $400/year. The timber company would buy that land, treat (poison) the new growth, and plant this to pine. They would also list this as CFA. This would reduce the taxes to $88/year.

This would happen throughout rural MI if a change like that were made. The highest and best use of forest land would be as forest.

Mike Diehl

"You are saying if I own say 100 acres that I payed for with my hard earned money and I post it legally I should not be allowed to hunt it myself?"

Short answer, "Yes, that is what I am saying."

Mike Diehl

"The utility that we derive from this land is hunting."

There's no "we" in that if the only person who can hunt publically owned animals or profit by leasing access to them is *you.*

"If we couldn't enjoy this utility, we would sell it."

If you can't hoard public property for your exclusive use, you would sell the property. Fine. Sell the property. If a timber company buys it, they still in my view can't shut the public out from hunting animals on it. Either way, it seems to me that the public is better off than having some person sit on it and tell the public to "just go away thanks very much these animals that are public property are for my exclusive use."

Mike Diehl

"You are saying if I own say 100 acres that I payed for with my hard earned money and I post it legally I should not be allowed to hunt it myself?"

OK, to help you get it, I'll explain.

You don't "hunt the land." You *hunt the animals* on the land that you own. Unless you raised those animals on your land as livestock, *the animals do not belong to you.* They belong to the public. Depriving the public access to animals that the public owns so that you can make exclusive use of them is, in my view, not acceptable.


1) When I refer to "we", I'm in a small club. I don't own it, we own it.Maintain the camp, split the taxes,etc.
2) You're confusing "Public Good" with "Public Benefit". The public gains because we have maintained our canopy. Because we have chose this option there are more deer and grouse. If the timber co. owned this, that canopy would be gone. Deer and grouse numbers would diminish. If all camps disapeared, the tax base for the township would evaporate. I believe that the public benefit from such a law would be a negative. These are cmmonly called unintended consequences.


Ok Im startin to get ya. let me throw this at ya. You are tracking the damndest buck you have ever seen. He walks on to my posted property. You feel you should be able to follw him onto my posted property because the deer belongs to the public? The buck is not wounded you are just following.

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