Battle over non-res license limits may go to

[spectr17]

December 31, 2002

22 states take aim at hunting ruling

HELENA (AP) -- Montana and 21 other states are asking the U.S. Supreme Court to overturn a ruling that struck down Arizona's limits on big-game licenses to out-of-state hunters.

In Montana's request to the nation's high court, Brian Morris, state solicitor, said the decision by the 9th U.S. Circuit of Appeals threatens the ability of the states to "conserve, promote and develop wildlife populations within their borders."

Other states signing Montana's appeal are Alaska, Alabama, Arkansas, Colorado, Delaware, Idaho, Indiana, Kansas, Kentucky, Minnesota, Nevada, New Mexico, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont and Wyoming.

The August ruling that Arizona's limits are an unconstitutional restriction on interstate commerce conflict with numerous other court decisions, Morris said.

He said the court's logic "runs squarely into a long line of cases holding that recreational hunting does not qualify as interstate commerce and that wildlife does not constitute an article of commerce."

The case is important for Montana, which has similar caps on the number of licenses available to out-of-state hunters. It also charges nonresidents more for licenses, something that Morris said could be jeopardized if the appeals court decision is allowed to stand.

A three-judge panel of the Circuit Court said in August that Arizona's 1991 law allotting 10 percent of bull elk and antlered-deer hunting tags to nonresidents was an act of "overt discrimination." It said the limit violates the constitutional ban on interfering with interstate commerce.

It sent the case back to federal District Court, giving Arizona a chance to prove that its restriction is the only means the state has to carry out a legitimate state interest in managing wildlife.

Morris said it was unlikely any state could successfully make that legal argument.

He said the case centers on whether recreational hunting is a matter of commerce and whether the limits on out-of-state tags affect the comings and goings of nonresident hunters to the point of affecting interstate commerce.

Morris cited several court decisions to support his arguments, including one that says a purely intrastate business cannot be converted to an interstate business simply because it has out-of-state customers.

At least 23 states other than Arizona impose limits on the number of nonresident hunting permits and at least 32 states charge more for some nonresident hunting permits than for resident permits, he said.

Those "differential fees and limits on nonresident hunting permits remain vital to the conservation and development of wildlife throughout our nation," Morris said.

 

[wmidbrook]

<div class='quotetop'>QUOTE </div>

Brian Morris, state solicitor, said the decision by the 9th U.S. Circuit of Appeals threatens the ability of the states to "conserve, promote and develop wildlife populations within their borders."[/b]

What a typical sheister! The only point to Morris' argument that I can see is that somehow revenues could be affected which would impact the amount of money the state has to 'conserve, promote and develop' wildlife populations.

The demand for tags, up to a point, is most likely highly inelastic like gasoline--the price doubles, we still buy it. There's not much difference between spending $25 on licenses tags vs. $100. When you start bumping the price north of $100 is when I bet demand starts dropping off a lot.



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Those "differential fees and limits on nonresident hunting permits remain vital to the conservation and development of wildlife throughout our nation," Morris said.[/b]

I just don't see any logic to this argument either. I can only manage to scape up a vague inference that revenues from tags & licenses to the state will somehow be affected by the current decision in AZ.

The state still has the ability to control the overall number of tags issued per unit. All they'd have to do is raise the price of the tags for everyone a bit to keep the revenues the same if they rid of 'overt price discrimination' for non residents.

I hate to see out-of-state hunting for a non-resident continue in the direction of becoming a rich man's sport.

Plus, the states probably would have loopholes (hopefully reasonable caps are placed on these), for auction/lottery tags to drum up even more revuenue, landowner tags etc.

Bill

 

[spectr17]

State seeks to dismiss hunter's lawsuit

By JEFF GEARINO, Casper Star Tribune Southwest Wyoming bureau

1/4/03

GREEN RIVER -- The state's system for allocating nonresident hunting licenses does not violate federal equal protection laws or federal commerce laws, according to briefs filed by state attorneys representing the Game and Fish Department.

Attorneys filed an amended motion Thursday in U.S. District Court in Cheyenne that seeks to dismiss a hunter's lawsuit that is challenging the constitutionality of the Game and Fish Department's policies regarding out-of-state hunters, officials said.

Disgruntled Florida hunter Donald J. Schutz filed the suit Sept. 11 against the state of Wyoming and Wyoming Game and Fish Department Acting Director Tom Thorne. The suit alleges the agency's pricing structures and rules governing nonresident hunters are unconstitutional

Schutz's lawsuit said the nonresident quota system used by the Game and Fish Department violates his rights under the United States Constitution.

Schutz, an attorney in Florida and a former Laramie resident and University of Wyoming graduate, also alleges in court documents that both the guide requirement for nonresidents hunting in wilderness areas and the existing nonresident price structure for hunting licenses are unconstitutional.

Wyoming Attorney General's Office attorneys filed a motion to dismiss the lawsuit in November, according to court documents and attorneys involved in the case.

Schutz filed an amended complaint with the court on Dec. 13 and state attorneys on Thursday filed an amended motion to dismiss, officials said.

In the motion, Wyoming attorneys said the lawsuit should be dismissed for a lack of jurisdiction because Schutz has no standing to bring the claim that the rules governing nonresident hunters violates the federal Equal Protection Clause or the Commerce Clause.

The plaintiff's claims under the two clauses "should be dismissed as a matter of law because nonresident hunters are not a suspect class, hunting is not a fundamental right, and the (Wyoming) statutes are rationally related to a legitimate state interest," the state's brief said.

Wyoming regulations that allocate hunting licenses do not violate the federal commerce clause, the brief said.

The brief noted that the Wyoming Supreme Court found the agency's statutes to be "rationally related" to a legitimate state interest, that game is not considered an article of commerce and any effect on interstate commerce of nonresident hunters is minimal.

The suit said it is unconstitutional for the Wyoming Game and Fish Department to allocate a higher percentage of hunting licenses to state residents - particularly for exotic species such as bighorn sheep - through its nonresident quota system.

Many of the department's big game license allocations are currently set by the Legislature through state statutes.

For example, the 20 percent of deer and antelope licenses and the 25 percent of the sheep licenses going to nonresidents is statutory. Other license allocations are done by Game and Fish Commission regulations.

The lawsuit said Schutz purchased Wyoming elk licenses in 1998 and 2002 and that Schutz plans to participate in the 2003 drawing for bighorn sheep. If successful, Schutz intends to sell the inedible portions of big game in interstate and international commerce, according to the lawsuit.

Wyoming statute does not prohibit the sale or barter of any inedible portion of any game animal, game bird or game. But Schutz contends in the lawsuit that Wyoming residents have a "significant economic advantage" over nonresidents in that commercial enterprise.

The Schutz lawsuit marks the second time in the past few years that the agency's license distribution system has been challenged in U.S. District Court.

In 2000, a federal judge ruled in favor of the Commission in a lawsuit brought by the Wyoming Outfitters and Guides Association over the state's hunting license distribution. The U.S. Supreme Court refused to hear an appeal filed by the association in March of 2002.