By Ryan Trapani
It was a week or so ago that I had cut some trees down, split, and stacked them for firewood. Soon after, I noticed deer curiously walking between the stacked piles of wood. They are curious animals. I once called in a deer using a dying rabbit call – normally used to call in coyotes!
There is probably more than meets the eye behind their curiosity of humans. For thousands of years, our knowledge of fire helped shed sunlight onto the forest floor, creating growing space for low-growth – herbaceous plants, shrubs, and tree seedlings. In spreading this knowledge, deer numbers thrived. After farm abandonment in the late 19th century, deer numbers once again soared on young reforesting fields. In today’s maturing forest, deer still seek out human habitats. Instead of hovering around burned over areas, or abandoned agricultural land, deer are left to more cultivated settings – apple orchards; corn-fields; rights-of-way; and more recently – our backyards.
In many areas of the Catskill & Hudson Valley, our backyards have become feeding grounds for deer. It is not that today’s deer are curious to see the most recent model of Ford Mustang is parked in the driveway, but instead the habitat that is created when a home is built. In the 19th century, deer faced extirpation from a lack of forest cover, and a different kind of ownership. Land-clearing for agriculture peaked then in New York State. Deer require a diversity of forest types, ages, and size classes. Contiguous grassy fields just do not meet all of their food and cover requirements, but they did for cows! Ownership of deer was more private then. If a deer ate a farmer’s crops, that deer was eating his livelihood and would at least feed his belly and never eat his crops again. Wolves and mountain lions were also extirpated in our region since they predated upon the farmer’s livestock. During this time, public regulations pertaining to wildlife were scarce.
Today’s deer (and humans) face an interesting challenge. Most agricultural fields have been abandoned and have reforested. After many decades, brushy areas have grown into the mature woodlands we know today, leaving scant undergrowth for deer to reach and feed upon. Instead what little does grow can be found near our homes – alongside driveways, yards, roads, gardens, and houses. Ownership has also shifted. Today, the people of the State of New York manage the deer. The people are represented by its managing agency – New York State’s Department of Environmental Conservation (NYS DEC).
How did this happen? In reality, the federal government has supreme jurisdiction on wildlife management, since wildlife cross state boundaries either by themselves or commercially. The federal government cites the Commerce clause which states that the US Congress has power to “regulate commerce with foreign nations, and among the several States, and with the Indian Tribes.” Other acts of Congress include the Migratory Bird Treaty Act, and Endangered Species Act. So, why doesn’t the federal government directly manage New York State’s deer herd? According to the 10th Amendment, the federal government concedes its power to the states when it does not delegate it themselves. Even more abstract than wildlife being considered interstate commerce, is the concept of public wildlife management and its relationship to private land ownership. Wildlife is not owned by the government per se, but kept “in trust in accordance with the public trust doctrine to be used by all citizens and managed for the benefit of all citizens by the DEC”, a state agency created in 1970. The public trust doctrine goes back to 1842 when the Supreme Court ruled in Martin vs. Waddell that tidal lands used by oyster fisherman, could not be owned privately, but are instead “held as a public trust” so its resources (oysters) can be used by all.
However, it can be difficult for those who manage land either for – apples, corn, soybeans, timber, biodiversity etc. to reconcile with the people’s deer eating the fruits of their labor. A farmer who plants crops and erects a fence with his own animals inside can harvest that animal and sell its meat as long as it has been USDA certified. But, if the same person grows a crop, does not put up a fence and the people’s deer comes along and eat his crop – he will have to have public permission to shoot that animal. The person doing the shooting can only take ownership of that animal after filling out a NYS DEC issued harvesting tag and attaching it to the carcass. However, he can never sell its meat, since selling the flesh of deer and other wildlife is illegal.
One can see how farmers and foresters are challenged by publically-owned wildlife. Some farmers are compensated in other states by the government since the people’s wildlife is eating their crops, but not in New York State. Nuisance tags are available, but this can be more difficult than one thinks. Instead, today’s landowners are taking the opposite approach of farmers in the 19th century. Instead of fencing in animals, they are fencing them out in order to level the playing field! Traditionally, fencing in animals made sense when a landowner was compensated by selling its meat after careful tending, time, and labor. Today, fencing out animals makes more sense when animals are eating your hard earned crops and provide no compensation. Unfortunately, fencing is extremely expensive.
One hypothetical solution may be to blend both historical and present wildlife management and ownership practices. A regulated market hunting season may fulfill this balance. Marketing healthy, organic, and local venison within a set of guidelines may serve as a greater incentive for hunters to harvest deer for meat, especially as the average age of hunters is exceeding 51 years of age. In doing so, deer herd sizes could be decreased, increased, or left alone in relation to the health of the habitat and herd in order to better balance landownership goals and objectives. This would require jumping a metaphorical fence much higher than eight feet!
