Oh Deer…

In August 2017 the Game Management Authority and Victoria Police conducted a crackdown on illegal hunting in northeast Victoria, Australia. One group of men was found to be in possession of two firearms and two high-powered torches. The second group was found to be in possession of a single firearm and four high-powered torches.

doris
Image from here

The Wildlife (Game) Regulations 2012 (Vic.) r.12 provide that –

(1) A person must not be in possession of a spotlight and a firearm in recognised deer habitat from 30 minutes after sunset until 30 minutes before sunrise. Penalty: 20 penalty units.
(2) A person must not be in possession of a spotlight and be in company with a person in possession of a firearm in recognised deer habitat from 30 minutes after sunset until 30 minutes before sunrise. Penalty: 20 penalty units.
(3) A person must not be in possession of a firearm and be in company with a person in possession of a spotlight in recognised deer habitat from 30 minutes after sunset until 30 minutes before sunrise. Penalty: 20 penalty units.

Both groups were presented for trial in Myrtleford Magistrates Court. The court fined two men $1,000.00 without recording a conviction (both of these mens’ hunting equipment had been seized). The third man was placed on a diversion and ordered to pay $250.00 to charity and write a letter of apology (the matter will be struck out if he is of good behaviour for 12 months). The fourth man pleaded guilty and was fined $750.00. The fifth was placed ona good behaviour bond without conviction and ordered to donate $750.00 to charity

Game Management Authority v Flanders* (2018) Country News, 15 May 2018, p.8.

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* No name is given in the report and I have arbitrarily assigned a name drawn from television.

Taxidermy: not always a good idea

In June 2017 staff from the Department of Environment, Land, Water and Planning raided the home of a man in Kilmore, Australia.  They located a stuffed koala mounted as a wall decoration.  The man admitted to shooting the koala with a .22 rifle, stuffing and mounting it.  His only explanation was that it was “something to do”.

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Image from here

It appears he was charged with breaching the Wildlife Act 1975 (Vic.), §§ 43 and 47D.  Section 43(1) provides that –

A person must not hunt, take or destroy other protected wildlife.  Penalty: 50 penalty units or 6 months imprisonment or both the fine and imprisonment and an additional penalty of 5 penalty units for every head of wildlife in respect of which an offence has been committed.

Section 47D(1) states that –

A person must not have wildlife in his or her possession or control if that wildlife has been taken, destroyed, acquired, received, bought, sold, disposed of, kept, possessed, controlled, bred, processed or displayed in contravention of this Act or any corresponding law of another State or a Territory of the Commonwealth.  Penalty: 240 penalty units or 24 months imprisonment or both.

The offender was dealt with in Seymour Magistrates Court in April 2018.  He was found guilty of the offences charged.  He was placed on a good behaviour bond and ordered to pay $1,000.00 to the Court Fund.

Dep’t of Environment, Land, Water and Planning v Simpson* (2018) Seymour Telegraph, 16 May 2018, p.12

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* The offender is not identified in the report; I have taken the liberty of drawing a name from The Simpsons.

Marks and Johnson v Scottsdale Ins. Co. (2015) H&FLR 2015-35

Danny Ray Marks and Timothy B Johnson v Scottsdale Insurance Company (2015) H&FLR 2015-35

United States Court of Appeals (Fourth Circuit)

29 June 2015

Coram: Hamilton, Sen. Cir. J.; Gregory and Harris, Cir. JJ.

Appearing for the Appellant (Marks): John Janney Rasmussen (of Insurance Recovery Law Group).
No appearance for the Plaintiff (Johnson).
Appearing for the Appellee: Mr John Becker Mumford (of Hancock, Daniel, Johnson & Nagle)

Catchwords: Virginia – insurance law – coverage – hunting – hunt club – members – vicarious liability.

Facts: Mr Johnson was a member of the Northumberland Hunt Club.  On 3 January 2013 he was hunting on land leased by the club which was adjacent to a roadway.  He fired a shot which struck and injured Mr Marks, a passing motorist.

Marks commenced proceedings in negligence against Johnson and the Club in a Virginia court.  He issued separate proceedings against the Scottsdale, seeking a declaration that that company was obliged to defendant and indemnify Johnson. The relevant insurance company covered the Club and “any of [its] members, but only with respect to their liability for [the Club’s] activities or activities they perform on [the Club’s] behalf”.

Scottsdale successfully aplied to transfer the matter to a federal court, which found that Scottsdale was not obliged to defend or indemnify Johnson: Marks and Johnson v Scottsdale Ins. Co. (US Dist. Ct for E.D. Va, Novak Mag.J., 30 July 2014, unreported).  Mr Marks appealed.

Held: Dismissing the appeal,that –

1. Virginia law requires the contract’s words to be given their “ordinary and customary meaning”.

Salzi v Va Farm Bureau Mut. Ins. Co, 556 SE.2d 758 (Va. 2002), followed.

2. Coverage of liability for “the Club’s activities” restricts coverage to the member’s vicarious liability for activities the club as an entity undertakes (for example, entering contracts or buying or selling property).  Members are however not covered with respect to their actions “during in connection with the club’s activities”.  In this case, no facts were alleged against Johnson which (if proved)would render Scottsdale liable to defend or indemnify him.

Lenox v Scottsdale Ins. Co. (US Dist Ct for Dist of NJ, Chesler Mag.J., 5 May 2005, unreported); CACI International Inc v St Paul Fire and Marine Ins. Co., 566 F.3d 150 (4th Cir., 2009), followed.

Judgment

The Court’s judgment is available here.

Louisiana Sportsmen Alliance LLC v Vilsack (2014) H&FLR 2014-60

Louisiana Sportsmen Alliance LLC v Tom Vilsack and Ors (2014) H&FLR 2014-60

United States Court of Appeal (Fifth Circuit)

28 October 2014

Coram: Prado, Elrod and Graves JJ.

Appearing for the Plaintiff: Charles D Elliott (of Vilar & Elliott)*
Appearing for the Defendant: Jennifer Frederick, Courtney Joiner and Katherine Vincent (of the US Attorneys Office)*

Catchwords: Louisiana – hunting – hunting with dogs prohibited – standing to sue

Facts:  For many years the US Forest Service allowed the use of dogs in deer hunting in Kisatchie National Forest (forest).  In 2009 the Service proposed banning hunting deer with dogs, and after significant consultation the ban was adopted in 2012.

The Plaintiff – an organisation representing the interests of deer hunters using dogs – challenged the decision and issued proceedings in the US District Court.  It was asserted that the Service’s decision was arbitrary and capricious pursuant to 5 USC §§702 and 706 of the Administrative Procedures Act.  The application was dismissed: Louisiana Sportsmen Alliance LLC v Vilsack, 984 F.Supp.2d 600 (W.D. La. 2013).  The plaintiff appealed.  On appeal the defendant for the first time raised an argument that the plaintiff lacked standing to sue.

Held: Per curiam, allowing the appeal –

1.  Standing to sue is a jurisdictional requirement which cannot be waived and which may be raised by the parties or Court at any time.

NAACP v City of Kyle, Texas, 626 F.3d 233 (5th Cir., 2010) and MCG Inc v Great Western Energy Corp., 896 F.2d 170 (5th cir., 1990), followed.

2.  For an organisation to have standing to sue, it must show that –

(a) Its asserted legally protected interest is relevant to its purposes.

(b) One of its members would have standing to sue in their own right.  To satisfy this requirement, one of the organisation’s members must show that –

(i) They have suffered (or will imminently suffer) a specific identifiable invasion of a legally protected interest.
(ii) The defendant’s challenged action is fairly identifiable as the cause of the injury.
(iii) It is likely (viz., not speculative) that a favourable decision will redress the injury.

(c) Participation of individual members in the proceeding is not required.

Hunt v Washington State Apple Advertising Commission, 432 US 333 (1977) and Lujan v Defenders of Wildlife, 504 US 555 (1992), followed.

3.  The plaintiff had neither alleged nor established any details regarding its nature or purpose, nor that any of its members had suffered a specific injury.  Accordingly it had failed to establish standing and so the Court of Appeals lacked jurisdiction to consider the matter.

Judgment

The Court’s judgment is available here.

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* I have not been able to confirm the involvement of these practitioners, who appeared in the matter at first instance; I have assumed that parties retained the same counsel on appeal.