Virginia High Court Upholds Bowhunting Victory

by Whitetail Solutions

Aug. 12, 2008 (703) 266-4134

Bowhunting returns to Reston, Virginia, after state Supreme Court sides with ATA and local bowhunters in their battle to bowhunt deer in their back-yard woods. The decision also awards ATA more than $50,000 in legal fees.

In a ruling likely to provide a national precedent, the Virginia Supreme Court in mid-July upheld a lower court’s ruling that bowhunting is a safe, science-based tool of wildlife management, and that local authorities cannot stop citizens from bowhunting deer on their property when hunting itself is a right conferred by the state’s Constitution.
The High Court, in choosing not to hear an appeal by the Reston Homeowners Association, also upheld the Fairfax County court’s decision to allow the Archery Trade Association to recover all legal fees incurred during the dispute.
After being alerted to the dispute by Suburban Whitetail Management of Northern Virginia (SWMNV), the ATA brought legal action against the Reston Homeowners Association in January 2007. ATA won the case in Fairfax County court in December 2007, as well as its request to recover more than $50,000 in legal fees. And because the homeowners’ association appealed to the Supreme Court and lost, the ATA is now seeking to recover legal fees incurred by the appeal process. In total, the ATA stands to recover all of its legal costs from having to defend bowhunting.
As a result, bowhunters are returning to Reston’s woodlots to reduce deer numbers and browse-damage problems. Eric Huppert, president of SWMNV, credits ATA for restoring Reston’s bowhunts. “This important precedent for bowhunters and homeowners wouldn’t have happened without the ATA,” Huppert said. “The ATA took on the fight on behalf of property owners and bowhunters. Homeowners in Fairfax County now know there’s a safe, court-approved, scientific way to solve deer-damage problems in suburbs.”
Jay McAninch, the ATA’s President/CEO, said the victory’s importance has national significance because it strongly endorses Virginia’s right-to-hunt Constitutional amendment and the state’s wildlife-management program that relies on bowhunting in urban areas. McAninch said the Virginia Supreme Court reinforces four critical points that form the foundation of bowhunting in America:
— First, bowhunting in urban areas can be done safely without harming people or property.
— Second, individual property owners can use bowhunters to address their deer-damage and nuisance problems.
— Third, wildlife is a public resource that’s held in trust and managed by states — in this case, the Virginia Department of Game and Inland Fisheries — for the public’s benefit.
— And four, individuals or a homeowners’ association cannot usurp local or state authority, or use the courts to shut down or interfere with a legitimate bowhunting program.
“When people or groups violate these historical, well-established lines of authority and take actions based on personal opinions, it’s going to cost them,” McAninch said.
Bob Duncan, executive director of the Virginia Department of Game and Inland Fisheries, said it’s difficult to overstate the victory’s importance. “Virginia has 7.1 million people, with urban folks moving into suburban and rural areas with little knowledge of wildlife management or bowhunting’s safety record,” Duncan said. “We can now point to this benchmark ruling and say, ‘Before you try to outlaw bowhunting and demonize it, realize it’s a vital part of Virginia’s game-management program and it’s protected in our state Constitution.’
“I’m proud of the ATA for giving us a bellwether victory,” Duncan said. “They did the right thing. By working with the Department of Game, the ATA showed Virginia’s bowhunters that we’re in their corner, protecting their rights and honoring their help in our wildlife-management efforts. By standing up for Virginia’s bowhunting programs, the ATA stood up for bowhunters everywhere.”
The ruling caps a long-running legal dispute that began in 2005 when homeowners in nearby McLean, Virginia, got a court injunction to shut down a bowhunting program run by the SWMNV. With the ATA’s help, a local judge tossed out the McLean injunction and bowhunters returned to the woods.
Then in 2006, the Reston Homeowners’ Association adopted a covenant that shut down the suburb’s bowhunting program with the SWMNV. Two residents and the SWMNV opposed the covenant and worked with the ATA to challenge it in court.
The ATA filed its initial complaint in January 2007, maintaining — among other things — that the landowners’ bowhunts were not subject to the revised covenant. Because the property owners had been bowhunting in their backyards for two years, their activity was “grandfathered” in, and not subject to restriction. The ATA argued that by preventing these bowhunts, the homeowners association was violating Virginia’s Constitution regarding wildlife management and the citizens’ right to hunt.
In December 2007, after reviewing presentations by both sides, the Fairfax County court ruled that the homeowners’ association did not have the authority to regulate the bowhunting program. In addition, in a precedent-setting action, the court awarded legal fees to the ATA. In May 2008, the homeowners association appealed the award. In July 2008, the Supreme Court found no error in the ruling and refused to review the case, and let stand the reimbursement of ATA’s legal fees.
Carol Bambery, general counsel for the Association of Fish and Wildlife Agencies in Washington, D.C., said the rulings send a strong message. “The fact the Courts awarded attorney fees is an indication of the righteousness of this case and the decision,” she said. “Here you had a homeowners’ association that imposed a restrictive covenant on landowners after they acquired their property. That restriction was a basic violation of Virginia’s Constitution. The case was handled extremely well by the ATA and their attorneys. Homeowners associations now know that before they restrict someone’s ability to hunt on their own property, their action will be subject to strict scrutiny by the Courts. ATA is to be applauded for their perseverance in this case.”
The ATA attorneys were Edward “Sunny” Cameron and David Gutkowski of Odin, Feldman & Pittleman, P.C., of Fairfax, Virginia, who led the legal team on behalf of the local bowhunters. Cameron said if the ATA had not intervened, the landowners’ hunting rights would have been crushed.
“Homeowner associations seldom lose a case because they have deep pockets and flat-out intimidate people with their legal teams,” Cameron said. “Here we had two retirees who did everything right and played by the rules. The homeowners association tried to shut them down, knowing they can’t mortgage their retirement savings and pay $50,000 to $75,000 just to go toe-to-toe in court. Not many people have the staying power to prevail against them. The ATA saw that this case had merits and stood beside these guys. Without the ATA, the homeowners association would have easily prevailed.”
McAninch said the case has far-reaching implications because other property owners can now assert their right to bowhunt in similar environments. “We’re extremely gratified to win a ruling of such stature,” McAninch said. “This sets a strong precedent in Virginia and elsewhere. Virginia’s long-standing approach to urban deer problems is to use bowhunting whenever possible. Bowhunters in Reston were part of that solution and had a proven track record.
“Unfortunately, the homeowners association went ahead and revised their covenant even after they were advised they were exceeding their authority,” McAninch continued. “The facts were against them from the start. Maybe now they’ve learned they can’t make laws just because they don’t like bowhunting. Just as importantly, when local groups or local governments force bowhunters to restore their rights in court, it’s going to cost them.”

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