Airborne Hunting

Kevin Cox, Associate Member, University of Cincinnati Law ReviewPicture2

In 2017, the U.S. Department of the Interior released a new five-year report that showed 101.6 million Americans participated in hunting, fishing, or other wildlife activities.[1]  Of that, only 11.5 million participated in hunting.[2]  While hunting is, to many, a highly controversial activity, the United States is deeply dependent on it for its nationwide conservation efforts.  In fact, the excise tax on firearms, ammunition, and archery equipment garners more than $1.6 billion annually for the nationwide effort.[3]

Hunting has not always been recognized for its conservation efforts.  In 1969, NBC showed a documentary entitled “The Wolf Men,” in which there were several scenes depicting the slaughtering of wolves and other animals from aircrafts.[4]  This resulted in a public outcry for government intervention, and in 1971 Congress enacted the Airborne Hunting Act.[5]  This Act amended the Fish and Wildlife Act of 1956, 16 U.S.C.A. §§ 742 to 754, to provide for criminal penalties for shooting at or harassing birds, fish, and other animals from aircraft.[6]  The issue was heavily debated in both the House and the Senate, and the first few proposals created inflexible blanket prohibitions on the conduct.[7]  However, after extensive discussion with other government agencies, the final statute permitted government agents, as well as individuals licensed by state governments to continue the conduct.[8]

Under 16 U.S.C. § 742j-1, any person who, while airborne in an aircraft, shoots or attempts to shoot for the purpose of capturing or killing any bird, fish or other animal can be subject to up to a $5,000 fine, or up to a year of jail time, or both.[9]  The statute does provide an exception for government agents and any individuals licensed by the State, so long as the State reports to the Secretary of Interior the identities of those individuals, and the number and type of animals taken.[10]

The need for this legislation was obvious; hunters, using aircrafts, were hunting wolves, bald eagles, and other animals near extinction and the government had no means to regulate it.[11]  Congress, while debating the constitutionality of the statute, proffered several arguments for this legislation, but the prevailing argument was the need to regulate U.S. airspace from unsafe conduct such as discharging firearms from aircrafts at low altitudes.[12]  Furthermore, the statute has been upheld by the courts as a valid exercise of congressional power under the Commerce Clause[13] since it pertained to safety of flights in air commerce.[14]

Today, at least for city folk, the idea of hunting from an aircraft, or the need for federal laws prohibiting it sounds absurd and unnecessary.  In Texas, however, the hunting of feral hogs by helicopter is not only legal, it is a commercial enterprise.[15]  Due to an estimated $400 million of yearly damage caused by millions of feral hogs, the State determined that licensing helicopter hunts might curb the populations explosive growth.[16]

Under the statute, states are free to issue licenses to individuals, but only a few states like Texas or Oklahoma have chosen to do so to combat the feral hog populations.  So, if one is curious about hunting from helicopters, the best option might be with an outfitter in Texas; otherwise, beware of the $5,000 fine and potential jail time if choosing to hunt from an aircraft in a state without these commercial permits.

[1] See Press Release, Department of the Interior, New 5-Year Report Shows 101.6 Million Americans Participated in Hunting, Fishing & Wildlife Activities (Sept. 7, 2017), https://www.doi.gov/pressreleases/new-5-year-report-shows-1016-million-americans-participated-hunting-fishing-wildlife (last checked Feb. 14, 2019)

[2]Id.

[3] Id.

[4] S. Rep. No. 92-421, 92 Cong., 1st Sess. 1971.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] 16 U.S.C.A. § 742j-1 (2018).

[10] Id.

[11] See S. Rep. No. 92-421, 92 Cong., 1st Sess. 1971.

[12] Id.

[13] U.S. Const. art. I, § 7, cl. 3.

[14] See U.S. v. Helsey, 463 F. Supp. 1111 (D. Mont. 1979) (reasoning that there must be a rational nexus between the regulated activity and interstate commerce for the statute to be valid).

[15] Kolten Parker, Texas Lawmaker Wants to Legalize Hunting Feral Hogs from Hot Air Balloons, Texas Observer, Apr. 18, 2017, https://www.texasobserver.org/texas-lawmaker-feral-hogs-hot-air-balloons/.

[16] Shannon Najmabadi, New Law Allows Hunting Hogs from Hot Air Balloons, but Few Balloonists will Offer it, Texas Tribune, Sept. 7, 2017, https://www.texastribune.org/2017/09/07/new-law-allows-hunting-hogs-hot-air-balloons-few-balloonists-will-offe/.