Vermont Hunter’s v. Winooski Valley, No. 258-03 Cncv (Katz, J., Oct. 6,
2003)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]




STATE OF VERMONT                                      SUPERIOR COURT
Chittenden County, ss.:                            Docket No. 258-03 CnCv



VERMONT HUNTERS, ANGLERS

v.

WINOOSKI VALLEY PARK DISTRICT




                                  ENTRY




       Vermont law provides that no municipality shall “directly regulate
hunting . . . .” 24 V.S.A. § 2295. The question here posed is whether that
prohibition bars defendant Park District from prohibiting hunting on its
lands. The answer must be that it does not.

        Were the City of Burlington to bar the shooting of varmints in City
Hall Park, that would strike no one as noteworthy or violative of the cited
statute. It is a small park, in the midst of Vermont’s busiest downtown.
Shooting guns, even .22s, in such an environment would strike any
reasonable person as unsafe. This pedestrian conclusion, if it requires
support, would find it in the second sentence of § 2295, which notes that
Vermont law “shall not limit the powers conferred upon a [municipality]
under section 2291(8),” which specifies the particular authority to
“regulate or prohibit the use or discharge, but not possession of, firearms
within the municipality or specified portions thereof.” So, were
Burlington to bar hunting from City Hall Park, it would not be directly
regulating hunting and not violating § 2295.

        What apparently separates the Park District from City Hall Park, in
the thinking of Vermont Hunters, is that the District is in the unique
circumstance of owning all the lands within its boundaries. There is no
land within the municipal Park District which is not also owned by the
District. The District is Vermont’s only municipality whose actions as a
landowner affect the entire municipal district. When the District bars
hunting on its own lands, it bars that activity from the entire municipal
district.

       The District is entitled to acquire lands. 10 V.S.A. § 6303. Having
so acquired, it is entitled to enforce rights “as are available to an owner of
real property under the laws of this state . . . .” 10 V.S.A. § 6307(a). The
promulgation and enforcement of a hunting ban is one of the rights of
private property, and it is not surprising that municipal entities would have
similar authority over the lands they happen to acquire. Although it is not
for the court to pass on the wisdom of this, or any, municipal regulation,
that issue would seem beyond discussion here. The Park District’s lands
are neither extensive nor remote. They lie in Chittenden County and are
primarily accessed for walking. The banks of the Winooski River owned
by the District are in places only a few yards wide. Permitting hunting in
such an urban space would obviously imperil those seeking a hermit
thrush, a quiet amble, or possibly a tryst (though we withhold judgment on
the value of any of these activities, especially ambling). When the
District bars hunting on its lands, it is acting under its private and
proprietary function. Town of Stockbridge v. State Highway Board, 

, 369 (1965). This does not “directly regulating hunting” although
it creates an obvious, indirect effect. Finally, the Park District’s role as
both municipal entity and
land manager must be balanced with a certain degree of subtlety.
Vermont Hunters’ coronation of section 2295 as the final word on hunting
and trapping in Vermont forces their analysis into the untenable position
of denying nearly any rights of ownership to municipalities or municipal
corporations, thereby advocating a second-class level of ownership.
        We therefore conclude the District is within its authority to ban
hunting on District lands.

       Vermont Hunters second contention is that an injunction is
necessary to force the District to immediately change or replace every
single sign and publication pertaining to the possession of firearms. The
District has voluntarily begun removing or altering their signs, web site,
and pamphlets to reflect this change. More importantly, it has officially
altered its position to allow the possession, but not discharge of firearms,
within its lands. This is, or rather was, the heart of Vermont Hunters’
contention on this issue. The right to possess firearms lays unchallenged
by the District. Vermont Hunters have not shown any other source of
controversy about the issue. They have not, for example, been prohibited
by any member of the District’s staff, armed with a ambiguous sign or
outdated pamphlet, from carrying firearms within the Park District. Nor
have Vermont Hunters shown any legal grounds that mandate the District
to track down and stamp out every outdated pamphlet in existence or
create signs that satisfy the Vermont Hunters’ sense of clarity about the
issue. Any further action at this time is unwarranted as there is no longer
a justiciable controversy left to support a declaratory judgment. Doria v.
University of Vermont, 

, 117 (1991) (“Unless an actual or
justiciable controversy is present, a declaratory judgment is merely an
advisory opinion which we lack the constitutional authority to render.”).

       Finally, Vermont Hunters present no persuasive evidence or legal
reasoning for abandoning the “American Rule” for attorney fees.

      Unless cause is shown by October 31, 2003, this action will be
dismissed.

       Dated at Burlington, Vermont, _________________, 2003.




                                            __________________________
                                                                 Judge