Saturday, April 23, 2005
Sighting in on the issue in right to hunt trial
Deciding whether shooting clay targets is hunting will require a judge to make distinctions as fine as No. 12 shot. Cast your vote for or against clay targets
An air horn blares, which is Barton's cue. From a bluff overlooking the field where the gunman is standing, an Orion employee takes a pen-raised pheasant from its cage and throws the bird into the air. As the pheasant flies overhead, Barton aims and fires. The bird crumples in midair and falls to the ground with a thud. Is this hunting? It is to the Virginia Department of Game and Inland Fisheries, which issued a release-hunt permit to Orion.
Next, an electric machine shoots a saucer-sized clay target into the air. As the disc follows the same trajectory taken by the pheasant, Barton opens fire again. The target shatters, and clay fragments rain down onto the field.
Is this hunting? That is the question for Circuit Judge Michael Gamble, who toured Orion Estate and watched shooting demonstrations Friday as part of a right-to-hunt trial.
Orion has filed a lawsuit claiming that Nelson County violated its constitutional right to hunt when it turned down a zoning request for a shotgun sports center, where its clients would shoot at moving clay targets from different stations just as they would a driven pheasant, a flushed quail or a scampering rabbit.
"You try to simulate as closely as you can every live game target you are going to hunt," Orion general manager James Slaughter explained to Gamble, who traded his black robe for boots and rain jacket for the unusual site visit.
Although Virginia is one of a dozen states to make hunting a constitutional right, Gamble is believed to be the first judge in the country asked to interpret that protection.
His decision, which is not expected until at least June, will be watched closely by hunters, the National Rifle Association and Orion's neighbors, many of whom oppose the shotgun sports center.
The county board of supervisors rejected the center because of concerns about noise and safety. Lawyers for the county say Orion is trying to cloak a commercial operation with a constitutional protection that should only apply to the traditional definition of hunting - the pursuit or killing of live game. The county called no witnesses during the trial, which ended Friday.
Washington and Lee University law professor Ronald Krotoszynski said earlier this week that while Virginia courts generally are reluctant to apply broad definitions to the language of law, Orion has what he called a colorable claim.
"It sounds like the sort of question that will find its way to the Virginia Supreme Court," said Krotoszynski, who specializes in constitutional law.
When Virginians voted in 2000 to add the right to fish, hunt and harvest game to the constitution, hunting advocates said the protection was necessary as their sport faced future threats from growing urbanization, the loss of wildlife habitat and increased activism by animal rights groups.
Those same forces were cited during this week's three-day trial as witnesses for Orion described an evolution of hunting. As sportsmen have fewer open places to hunt on and less prey to shoot at, Gamble was told, hunting preserves such as Orion have gained popularity.
So too has the notion of hunting without killing, the concept behind shotgun sports centers. Sometimes called "golf with a shotgun," the centers use remote control-activated machines to present different challenges to shooters who work their way through a course.
One station at Orion called "fur and feathers" sends one clay target through the air like a flushed bird and a second one skipping along the ground like a spooked rabbit.
Although some participants might be content to shoot at nothing but clay, most are expected to also seek out live targets at the 450-acre preserve. For that reason, witnesses for Orion testified, the shotgun sports center is also needed for safety training and pre-hunt warm-up sessions.
Animal rights groups have decried the use of release hunts like the one at Orion on Friday, where birds raised on game farms are released directly from cages into the line of fire. But that was not an issue before Gamble. Instead, the trial turned on whether clay target shooting should be included in the definition of hunting.
The way Orion sees it, the case is a landmark battle for the rights of all hunters.
But with out-of-town clients paying $35,000 a year for use of the estate's corporate training facility and the shotgun sports center, the estate may not be the best representative of the average hunter.
Asked about that during Friday's tour, owner Morris Peterson said he will also offer some hunting to members of the community at cheaper prices.
"There are no class issues with regard to our customer base," Peterson said. "There is no elitism with regard to our customer base."
During the three-hour visit, a caravan of four-wheel-drive vehicles carried the judge and a small army of attorneys and journalists through creeks and across cornfields to tour the estate and witness shooting demonstrations by Barton, an Orion employee.
Concerned neighbors, who were not allowed along, watched as best they could from property lines marked by "No Trespassing" signs.
In the end, two pheasants were dead and dozens of clay targets were toast.
Stephen Halbrook, a Fairfax attorney who represents Orion, said he was not sure how the half-dozen or so pen-raised birds who escaped Barton's shot would fare in the wild.
"There might be some that will survive and there will be others that will make good fox food," Halbrook said. "Foxes have to eat, too."