Could Idaho voters ban the use of bait or dogs to hunt black bears, and codify a tougher penalty for violations?

Plain-English summary

Petitioner Lynn Fritchman filed a black bear hunting regulation initiative in June 1997, similar to but narrower than the Proposition 2 measure that Idaho voters had defeated in November 1996. The proposed initiative would have banned the use of bait to take a bear at any time, banned the use of dogs to take a bear from May 1 through August 31, defined "bait," provided exemptions for some categories of person, and imposed substantially heavier penalties than the existing fish and game code.

The AG's certificate flagged five drafting and policy concerns. First, the bait ban combined with the existing definition of "take" (Idaho Code § 36-202(h)) created a potential photographer loophole. The statutory term "take" includes "hunt," but the definition of "hunting" excludes stalking by an unarmed person to watch or photograph wildlife. So unarmed hound hunters with cameras could potentially stalk and search for bears under the "watch and photograph" carve-out. The petitioner might want to address the loophole. (Note: Idaho Code § 36-1101(b)(6) does prohibit the use of dogs to pursue, track, or harass any big game animal except under commission rule, which constrained but did not fully close the gap.)

Second, the May 1 through August 31 dog ban would eliminate twenty existing IDAPA-authorized black bear dog training seasons (under IDAPA 13.01.08588) and twenty-three existing spring hunting seasons. The dog training seasons under IDAPA 13.01.08588 already prohibited killing the bears; they were training-only. The initiative's Declaration of Intent did not make clear whether the petitioner meant to eliminate these no-kill training seasons too. The AG suggested clarifying.

Third, the exemption for "employees" of Idaho Department of Fish and Game omitted the agency's "agents." When the Department needed to capture or kill a problem bear, it usually contracted with private hound hunters because the Department doesn't keep dogs. The AG recommended adding "agents" to the exemption to preserve this practice.

Fourth, the proposed penalty provisions were far harsher than existing fish and game penalties. The Department had spent six years centralizing all fish and game penalties in title 36, chapter 14. The initiative placed the new penalties elsewhere. The AG suggested rewriting to fit them into chapter 14 if the initiative passed.

Fifth, the initiative included a severability clause, which the AG did not flag as a problem.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The 1996 Idaho ballot effort to restrict bear baiting and hound hunting did not become law, and as of this opinion's date it does not appear that the 1997 initiative made it onto the ballot or was enacted. Idaho's bear hunting framework has evolved through subsequent rulemaking and Commission decisions. Anyone researching current Idaho bear hunting rules should consult current Title 36 statutes and current Fish and Game Commission rules in IDAPA.

Common questions

Q: Why does the Department of Fish and Game need to use private hound hunters?
A: Because the Department doesn't keep its own pack of hunting dogs, and using dogs to track and hold a problem bear is the most effective way to either tranquilize and relocate it or, when necessary, kill it. The Department contracts with private hound hunters as agents when this kind of intervention is needed. An exemption that covered only Department employees would have prevented this practice.

Q: What's the difference between "take" and "hunt" in Idaho fish and game law?
A: "Take" (Idaho Code § 36-202(h)) is the broader concept: hunt, pursue, catch, capture, shoot, fish, seine, trap, kill, or possess, plus attempts at any of those. "Hunt" (Idaho Code § 36-202(i)) is narrower and excludes stalking, attracting, searching for, or lying in wait for wildlife by an unarmed person who is just watching or photographing. The mismatch creates a category of activity that's "hunting" in everyday speech but not "hunting" or "taking" under Idaho law: an unarmed person stalking with a camera.

Q: Why was the placement of penalty provisions a concern?
A: Because the Department of Fish and Game had spent six years centralizing all fish and game penalties in title 36, chapter 14. Placing this initiative's penalties in a different chapter would fragment the code, complicate enforcement, and undercut the centralization effort. The AG flagged this as a drafting fix, not a substantive bar.

Q: What was the AG's role here?
A: Idaho Code § 34-1809 requires the AG to review every initiative within twenty working days for matters of substantive import. The recommendations are advisory; petitioners can accept or reject them.

Background and statutory framework

Idaho's fish and game law is at title 36 of the Idaho Code. The definitions of "take" and "hunt" sit at § 36-202; the prohibition on using dogs against big game is at § 36-1101(b)(6); fish and game penalties are concentrated in chapter 14. The Fish and Game Commission's rulemaking authority, exercised through IDAPA, sets seasons, methods of take, and special provisions like the dog training seasons in IDAPA 13.01.08588.

Initiative review under Idaho Code § 34-1809 is the AG's twenty-day advisory mechanism for surfacing form, style, and substantive concerns before signature gathering.

Citations and references

Statutes: Idaho Code §§ 34-1809, 36-202(h), 36-202(i), 36-1101(b)(6); Idaho Code title 36, chapter 14.

Administrative rules: IDAPA 13.01.08588 (black bear dog training seasons).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C072297.pdf

Original opinion text

July 22, 1997
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review
Initiative Regarding Regulation of Black Bear Hunting

Dear Mr. Cenarrusa:

A proposed initiative petition was filed with your office on June 30, 1997. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory timeframe in which this office must respond and the complexity of the legal issues raised in this petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."

BALLOT TITLE

Following the filing of the proposed initiative, our office will prepare short and long ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. While our office prepares the titles, if petitioners would like to propose language with these standards in mind, we recommend that they do so and their proposed language will be considered.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative is very similar to an initiative (Proposition Two) that was defeated by the voters in the November 5, 1996, general election.

Section 1(1)

Section 1(1) of the proposed initiative prohibits the use of bait to take a bear at any time during the calendar year. This proposal is identical to the prohibition on the use of bait that was contained in Proposition Two. The term "take" is defined by Idaho Code § 36-202(h) to mean "hunt, pursue, catch, capture, shoot, fish, seine, trap, kill, or possess or any attempt to so do." The definition of "take" is intended to be all inclusive.

However, the term "hunting" has a separate definition which specifically excludes "stalking, attracting, searching for, or lying in wait for any wildlife" by an unarmed person to watch or photograph wildlife. Idaho Code § 36-202(i). With the exception to the term "hunting" and the inclusion of "hunt" in the definition of "take," there is a potential for unarmed hound hunters to stalk and search for bears to watch or photograph. The terms "stalking" and "searching for" are not defined. However, Idaho Code § 36-1101(b)(6) prohibits the use of dogs to pursue, track, or harass any big game animal except as allowed by commission rule. Therefore, unarmed hound hunters with cameras could not pursue or track bears if the proposed initiative were adopted. The sponsors may want to draft additional initiative language to address this potential "loophole."

Section 1(2)

Section 1(2) of the proposed initiative would prohibit the use of dogs to take a black bear from May 1 through August 31. This proposal is a change from Proposition Two's attempt to prohibit the use of dogs during the entire calendar year. There are 23 spring seasons which would be changed by the dog use prohibition. In addition, the proposed initiative would prohibit the current black bear dog training seasons under IDAPA 13.01.08588 (which already prohibits the killing of any bear). There are twenty distinct dog training seasons. All are within the prohibited dates of May 1 to August 31. Based on the Declaration of Intent, it is not clear that the sponsors intend to prohibit black bear dog training seasons that would not result in the killing of any bears. The sponsors should clarify whether it is the intent of the proposed initiative to eliminate these dog training seasons.

Section 1(3)

Section 1(3) of the proposed initiative identifies the persons who are exempted from the proposed law. While employees of the Idaho Department of Fish and Game are exempted, agents are not. In actual practice, when the Department of Fish and Game is required to capture or kill a bear, it usually seeks the assistance of a private hound hunter. That is because the Department of Fish and Game does not keep hunting hounds. The use of hunting hounds is the most efficient way to track and either capture or eliminate problem bears. Section 1(3) should be redrafted to include agents of the Idaho Department of Fish and Game.

Section 1(4)

Section 1(4) of the proposed initiative defines the term "bait."

Section 1(5)

Section 1(5) of the proposed initiative contains a penalty provision. The penalties proposed in the initiative are far more severe than the current fish and game code for similar offenses. In addition, the penalty provision would not be included in chapter 14 of title 36, Idaho Code, with all other fish and game violations. Over the past six years, the Department of Fish and Game has attempted to centralize all penalty provisions in chapter 14 of title 36, Idaho Code. If the proposed initiative is approved by the voters, the sponsors should rewrite section 1(5) so it is codified in chapter 14 of title 36, Idaho Code.

Section 1(6)

Section 1(6) of the proposed initiative contains a severability clause.

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Lynn Fritchman by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,
ALAN G. LANCE
Attorney General