SB 241 in the 2023 Kentucky Legislative Session was a continuation of SB 214, pertaining to the 54,000-acre Elk Project in southeast Kentucky, with partners Cumberland Forest LP, enabled by the Nature Conservancy, the Rocky Mountain Elk Foundation, and the Kentucky Department of Fish and Wildlife (KDFW). Funding was allocated in the 2022 Session to join the states of Virginia and Tennessee with this historical project that protects habitat and provides public access to hunters and outdoor enthusiasts.
Also contained in the legislation were provisions to remove interagency barriers that could negatively affect requisite timelines regarding this project and others, as to property acquisition, technical assistance, and allowing the KDFW more autonomy in fulfilling their mission. The provisions gave operational parity to KDFW, which are already available to other agencies.
As the sponsor of SB 241 in Kentucky, I wish to clarify a false narrative by the media regarding a provision in the bill. As an attorney, longtime lawmaker, and sportswoman who works on fish and wildlife issues on the national level and throughout the United States with many stakeholders, I am baffled by the interpretation of the small change in KRS 150.170(4). I am a strong advocate for the North American Wildlife Model based on the doctrine that fish and wildlife are the public trust, which is supported by United States Supreme Court decision and is the envy of the world for conservation and species management. I hope to clear up some confusion regarding the status of the law in Kentucky, past and present.
I will preface the discussion with the fact that media did not speak to me, the bill sponsor, prior to writing articles that misrepresented the law, past and present, and the impact of the definition of farmlands. I have spoken with a few outlets and sent copies of the existing law with the changes, with little impact. This leads me to believe that there may be agendas associated with the dissemination of information which is not accurate.
The longtime statute generating the discussion is as follows:
KRS 150.170 is the statute that is captioned “Requirement of hunting, fishing, trapping, or guide’s license-exceptions, and it has been in effect for many years.
(1) Except as provided in the following subsections of this section, and subject to administrative regulations promulgated under this chapter, no person, resident, or nonresident shall do any act authorized by any kind of license or permit or assist in any way any person in doing any act provided for in this chapter with respect to wildlife unless he or she holds the kind of license or permit, resident or nonresident, that authorizes the act. It shall be the specific purpose of this chapter to prohibit the taking or pursuing of any wildlife, protected, or unprotected, or the fishing in any stream or body of water whether public or private, without first procuring the license provided for in KRS 150.175, except to the extent as may beotherwise provided in this section.
Exemptions are enumerated for youth, resident furloughed servicemen and women, etc., are set forth.
The long-time statute is very clear. If you hunt or fish on public or private land in Kentucky and you do not qualify for the longstanding exemptions, you must buy a license.
The exemption that has been the subject of much misinformation and misunderstanding is the exemption designated for farmlands. This has been the law for many years and is an exemption limited to farmlands. So, let’s talk about that. KRS.150.170
(4) The resident owner of farmlands or his or her spouse or dependent children shall, without procuring any sport hunting or sport fishing licenses, have the right to take fish or hunt during the open season, except trapping, on the farmlands of which they are bona fide owners. Tenants or their dependent children residing upon these farmlands shall have the same privilege.
This statute has been the law and still is subject to the following
SB 241 added the words, “five acres or more” after the word farmlands, twice in the (4) of the existing statute.
Clearly, there was no residential or property ownership exemption in the law previously to the five-acre definition, except for resident owners of farmlands.
The definition in the already narrow exemption was requested by the KDFW for clarification and to bring the term into conformity with other local, state and federal definitions of what constitutes “farmlands”, or by analogy agricultural lands. As substantiated instances of abuse and fraud under the existing law has arisen and become a law enforcement issue that is undermining the funding of the KDFW, as they receive no general fund tax dollars and rely upon license and permit sales, along with dedicated federal recreational tax dollars per the Pittman-Robertson Act.
The law enforcement division requested that a definition be put in the bill, as a tool and to remind hunters and fishermen that the farmlands exemption is and always has been a limited exemption.
Most farmlands or agricultural lands definitions are ten acres or more and with agricultural related activities. It was my feeling that five acres would serve the purpose of the KDFW in setting defined parameters for enforcement purposes, not be too onerous on resident owners that may have farmland characteristics for purposes of the exemption, and to remind Kentuckians of the law that has been in effect for years as to license requirement.
Even the Governor, who vetoed the bill on other grounds, did not mention anything regarding the definition in the veto message.
The media and other interests have reported on this measure as though license requirement on private property is new. It is not. The farmlands exemption, which has also been there for years, is being abused and misused.
Over a decade ago, a bill was introduced to not require a license on certain private ponds. It did not advance for many reasons, a few of which are touched on in this article.
I will forgo a lengthy and legalistic discussion regarding the North American Model and the public trust doctrine, as the courts have upheld the model, but there are valid reasons for license requirements on private lands.
There was a time when the KDFW stocked ponds throughout Kentucky; they don’t do that now, but there is an assistance program in the agency for landowners of all sizes who want to utilize the expertise the agency does provide; this is the public trust. Most of us with ponds on our property, regardless of size, have caught fish, including minnows, in public waters and brought them back to our private property, which is also the public trust. The KDFW and its funding through licenses allows a lot of opportunity for private landowners of all sizes.
Private stocking and ponds are also conducive to allowing invasive species, such as the Asian Carp, and/or aquatic disease to invade public waters, either intentionally, by accidental release, or by nature due to flooding.
There has been much adverse public trust impact by these occurrences to be dealt with by federal and state agencies.
The KDFW is the agency that manages the North American Fish and Wildlife Model that is the envy of the world. The agency does not receive tax or general fund dollars. They provide private farm and residential pond assistance and public access to habitat; purchase, manage, and preserve habitat; employ biologists to survey species; set seasons; provide junior conservation education, law enforcement, education, and facilities; manage disease; network with other states and stakeholders; and promote and preserve our cultural heritage, to name a few.
There may be anti-hunting ideology that wants the agency to fail and, believe me, they are out there. There may be ideology that what you take on your property is your right and you are raising a property rights issue, with no concern that the North American Model and licenses and permits that support same, ensure the opportunity for future generations to participate in our cultural heritage. Perhaps, there are journalists or readers who don’t utilize due diligence in investigating or verifying information in our social media and cut-and- paste culture. The most hurtful and dangerous may be political agendas where sportsmen and women are being divided, when we need to stand together.
But I am optimistic that most are like me and believe in the historical public trust doctrine that includes our fish and wildlife, and that we support our rights to fish, hunt, and trap in Kentucky (and so participate), but realize that we are subject to regulatory models that are necessary due to humankind not managing species well without history without management models that include statute and regulation.
When you participate in an activity, it is incumbent upon you to know the law pertaining to that activity. The statute is clear. If you are not in compliance with the law, you are not a sportsman, but you are a violator, a poacher, in the eyes of true sportsmen and women. Further, you are undermining the preservation of our cultural heritage for future generations.
I grew up in east Kentucky when the deer herd was nominal, there were no turkey, no elk, or bear. With the dollars of sportsmen and women, that has changed, as we enjoy these species. Even if you aren’t a hunter, fisher, or trapper, if you enjoy the bounty of species of all types, even in your backyard, rest assured. It would not be plentiful without the efforts of KDFW through license and permit sales. I will continue to support KDFW and hope you will too.
Senator Robin L. Webb
Unapologetic supporter of the North American Wildlife Model and Kentucky Department of Fish and Wildlife.