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NE Constitution Proposed Amendment No. 2 2012

Editor’s note: For a list of available Election 2012 articles on our site, including downloadable sample ballots and information about the other three proposed amendments, click HERE.

UPDATED November 5, 2012 @10:48pm: I have received a reply from Senator Pirsch and included a link to the newly published article about that conversation, below.

Official language which will appear on the ballot:

A vote FOR this constitutional amendment would set forth a constitutional right to hunt, to fish,and to harvest wildlife and would designate public hunting, fishing, and harvesting of wildlife as a preferred means of managing and controlling wildlife. The right set forth by this constitutional amendment would be subject to certain laws, rules, and regulations, and this constitutional amendment would not be construed to modify current laws relating to trespass or property right laws or constitutional provisions pertaining to water.

A vote AGAINST this constitutional amendment would result in the right to hunt, to fish, and to harvest wildlife not being added to the Constitution of Nebraska and public hunting, fishing, and harvesting of wildlife not being designated a preferred means of managing and controlling wildlife.

A constitutional amendment to establish the right to hunt, to fish, and to harvest wildlife and to state that public hunting, fishing, and harvesting of wildlife shall be a preferred means of managing and controlling wildlife.

Nebraska Proposed Amendment No. 2′s purported purpose is to ensure the preservation of Nebraskans’ rights to hunt, fish, and harvest wildlife. Sponsoring State Senator Pete Pirsch, in responding to questions from skeptical colleagues in the Nebraska Unicameral during floor debate and in interviews with local media, has explained that the measure is needed due to potential future threats to these rights from “deep-pocketed, fringe organizations” which have been increasing their efforts to limit such activities in other states.

Senator Pirsch has explained that organizations such as the Humane Society of the United States (not affiliated with the animal shelter organization), have successfully worked to prohibit certain trapping and hunting activities, and are, even now, working to pass state legislative bans on crating certain farm animals. Most of these HSUS successes have occurred in their home state of California.

Pirsch has reported, however, that HSUS has recently opened a Nebraska chapter and hired a State Director. While HSUS has publicly taken a “neutral” position on Proposed Amendment No. 2, Senator Pirsch believes the opening of a chapter within Nebraska is a signal that the organization will work towards rights-limiting legislative measures, and for that reason, the protections afforded by Amendment No. 2 for hunting, fishing, and harvesting wildlife are needed now.

An article published here on October 24, “NE Ballots: Deciding How to Vote on Those Four Proposed Amendments”, provided a detailed articulation of the criteria we believe should be applied when considering to vote “FOR” or “AGAINST” proposed amendments to a constitution, including the State Constitution.

We find that the problem put forward by Senator Pirsch does meet our stated standard for an amendment, because:

• The protection of hunting, fishing and wildlife harvesting rights is a worthy goal, and it is true that some organizations, and HSUS-NE specifically, may indeed work to undermine them.
• It is troubling that HSUS has established a new chapter in our state – perhaps they have found evidence that they will have the ability to make inroads here? (Such as THIS editorial published in the Lincoln Journal Star?)

In addition, we have to agree with Senator Pirsch’s admission – an astonishing one at that – that the passage of laws in Nebraska is far too easy with our current Unicameral structure.

Pirsch appeared on KLIN’s DriveTime on October 24, 2012, to discuss Amendment No. 2. A transcript of the final question proposed by the show’s host, Kevin, and Senator Pirsch’s answer, is below:

Kevin: “If there is a threat, doesn’t it have to come through legislative action, and at that point, lawmakers could just say ‘no’?”

Senator Pirsch: “Well, keep in mind, we are a one house body, we are not like any of the other 49 states, and we don’t have but 49 Senators, and so, the beauty of our body is that legislation can pass really quickly through our body and can be enacted and the danger of our body, uniquely among states, is that not so good legislation can pass very quickly through our body, and, and without – uh, so – like I said, they are very deep -pocketed, well-funded groups and HSUS that one group has well over $100 million dollars, so that’s what happens when you mount these campaigns are based on emotions and what not and so this is just a way to ensure that deep and meaningful thought has to occur before you would ever carve away from that which we enjoy today in terms of traditional hunting and fishing practices.”

(Yikes! Yes, this statement has general implications.)

In addition to the reasons already noted, we would also support the philosophy behind Proposed Amendment No. 2, based on its relationship to the inalienable right to keep and bear arms, already enshrined in the U.S. Constitution.

BUT, despite all that I have mentioned above regarding a supportive position of the ideas behind Amendment No. 2, I must report that we find ourselves, at best, ambivalent about the actual measure.

We have found several problems with the specific language that would be included in the Nebraska Constitution if the Amendment is approved by voters, with the issues occurring in the following phrase:

“…a constitutional right to hunt, to fish,and to harvest wildlife and would designate public hunting, fishing, and harvesting of wildlife as a preferred means of managing and controlling wildlife.”

Our concerns, in brief are…

• Reference to “public hunting, fishing…”, may have very particular legal references attached to State / government-control of hunting. Much preferred, then, would be: “Hunting, fishing, etc…by the general public”

• MORE IMPORTANTLY of concern is the employment of “a preferred means” rather than “THE preferred means”.

Remember the devastating Missouri River flooding in 2011? The U.S. Army Corps of Engineers used flood control as “a” criteria for river management. They also used the creation and preservation of habitat for piping plover and pallid sturgeon as “a” criteria. Ask property owners up and down the river valley what resulted from the latitude granted by vague legal language.

Submerged gazebo on the Sioux City, Iowa Riverfront in June 2011 – photo facing south toward South Sioux City, NE condos protected by sandbags – Photo copyright Tarah Dawdy

In a nutshell, we must question whether the choice of language employed in Proposed Amendment No. 2 potentially renders it not only ineffective in protecting the rights noted, but whether it may even stand to impinge upon them.

Because we would like to support the amendment, I sent an email to Senator Pirsch on Wednesday, October 31, via his legislative address, in effort to alleviate these concerns. That email has been published here in full and provides a more complete explanation of our concerns.

We originally planned to publish this article on Thursday, but because we were busy investigating another issue and preparing for our scheduled presentation, we thought we’d just wait an extra day for a response. Should Senator Pirsch opt to respond after this, we will update this article and/or publish a separate one to report that fact to readers, as we explained to him.

If no satisfactory answers come from Senator Pirsch, we cannot recommend a vote “FOR” Amendment No. 2.

NOTE: I have spoken with Senator Pirsch. After reading the email to him, below, click HERE for an update.

A couple of notes about the email: I have copied the sent message here in its entirety. The only changes made here were the correction of two typos found later by Linda (thank you), the addition of purple for emphasis lost in this format, and a couple of additional links.

Senator Pirsch,

I am writing with a couple of questions about Proposed Amendment No. 2 because I will be publishing an article about it on our website tomorrow and including our position on it in our voters’ guide within the next day or so as well. We have reviewed media coverage, including a recent interview on KLIN’s Drive Time Live and cannot find answers to our questions.

I have provided additional information about Grassroots in Nebraska and the level of interest in what we publish at the bottom of this message, so simply note that our group’s mission and principles embrace Constitutional, limited government. That means we heartily support the right to keep and bear arms and would have a natural affinity for the general principle embodied in your amendment.

However, due to the fact that we embrace an originalist philosophy, we also believe that changes to a constitution must meet a set of high standards. We have problems with the language of Proposed Amendment No. 2; we find a couple of terms so vague as to have potential negative consequences, which include limitation of hunting and fishing rights and potential for future litigation. The key phrase with such problems is:

“…and would designate public hunting, fishing, and harvesting of wildlife as a preferred means of managing and controlling wildlife.”

Had you and/or the organization which brought the legislation to you, the NRA, contemplated the following problems, and if so, what were the conclusions?

1) What is the definition of “public” in this context? As in “public hunting”, “public fishing”? Does a definition exist in current statutes and/or does legal precedent address the subject, and if so, what were the results?

We wonder if the wording of the amendment has the potential to actually limit private individuals, but more explicitly, the operations of private enterprise such as private hunting clubs or small business which operate a hunting tourism business, etc..

If “public hunting” becomes a preferred means, in other words, could bureaucrats make decisions and/or interest groups bring legal challenges which result in policies that would edge out private enterprise involvement in the management of game and wildlife?

To avoid such problems the language should have referenced “general public” or similar:

“…and would designate hunting, fishing, and harvesting of wildlife by the general public…”

2) What is the definition of and the potential impact of “a preferred means”, specifically, the difference in using “a” versus “the”?

The usage of “a” provides wide latitude; policy makers are only instructed to apply this “preferred means” as one part of an array of any number of considerations, not as its primary means.

A very stark example of such a vague requirement recently resulted in the devastating floods all along the Missouri River valley; the Army Corps of Engineers had as “a” criteria for river management the consideration of flood control. They also had as “a” consideration the protection of wildlife habitats for the piping plover and pallid sturgeon. Armed with vague legal empowerment, they were able to chose wildlife habitat preservation as primary.

It seems that your amendment’s potential to achieve the objectives you have stated publicly, has been potentially disarmed. Should any Nebraskans find in future that game and wildlife management is not conducted with hunting and fishing rights at the forefront, and should legal challenges result, history proves that a ruling from a court would find the simple difference between “a” and “the” and uphold that management officials have much discretion, including putting other means of management before hunting and fishing rights.

We find the problematic phrase could actually be further improved, beyond problems with “public” and “a” so that it would result in the effects you state you desire – the use of “preferred” without an included definition or the employment of words with more explicit meaning has some potential legal implications in future.

We support the concept of your amendment, but absent evidence that the problems which I’ve explained do not exist, we are inclined to recommend to voters that they vote against Amendment 2 and that they urge you and other legislators to redraft it and that it be placed on the ballot in 2014. We are comfortable in this recommendation due to the fact that you and others have stated that there have been no specific problems in Nebraska with attempts to erode these rights. Since HSUS has only recently arrived on the Nebraska political landscape, the worst scenario we can imagine is that they would attempt some action to erode rights that would take at least as long as a “redo” of Amendment No. 2.

I recognize that your motivation in taking the time to answer these questions is necessarily tied to potential questions about the value in doing so. In other words, beyond the fact that I and other members of this group are Nebraska citizens, voters, and taxpayers, and for that reason our questions legitimately command attention, does what we have to say about this amendment have much potential impact?

While that may always be a difficult question to answer definitively on such matters, we can provide some historical insight on this point. First, other legislators believed our requests were worth their time. For example, Senator Tony Fulton wrote an “editorial” at our request, explaining why voters should vote against Amendment 2 in 2010 (elimination of the Treasurer). Another example: U.S. Congressman Steve King found us credible enough that he took the time to comment personally on an article we’d written about an action he’d taken in Congress regarding the health care law.

And, note that our website has become increasingly popular since those gentlemen found it worth their time. It is especially popular during election seasons, whether they be primaries, congressional, or general. But this may be the most true particularly regarding bond issues and ballot measures. We have found that more often than not, such ballot items do not receive anything like the effort, funding, and attention as do candidates, and therefore, voters make additional efforts to seek out information about them.

The available statistical tools on our website heartily support that trend; we are once again receiving new record highs of incoming traffic, with the number one search for sample ballots and number two such search terms regarding the amendments on Nebraska’s ballot, including specific searches for information on Amendment No. 2. While we do not as a practice share specific traffic numbers outside of our group, suffice to say that currently, at the low end, many hundreds of unique visitors are visiting our site daily looking for election information and, if we stay on trend, it will be more than hundreds daily by Tuesday.

As noted, I will be publishing the aforementioned article tomorrow, likely in the late afternoon or early evening, and I will include in the working draft the fact that I have contacted you with this inquiry with a note that I will update the information in that regard should I receive a response after publication. Should I hear from you prior to publication time, I will revise the article accordingly. And note, that means regardless of your disagreement or agreement with our position. We would actually encourage you to write an editorial style piece of whatever length, again, regardless of your position, and we would publish such, unedited, if you are so inclined. We’re certain voters would find such open dialogue informative.

And finally, for additional information about our group, please see the About page of our website.

I thank you for your time and attention,

Shelli Dawdy

Founder – Grassroots in Nebraska