Don't expect AZ any time soon

[wmidbrook]

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

Raising Resident fee's to be equal with Nonresident fee's would be a great way to end hunting for the average guy.[/b]

I scrimp & save to do my annual out-of-state hunt. Why should I have to subsidize residents?

It's okay to agree to disagree. The system sure seems unfair to me. States not honoring their publications and stated quotas, unfair two-tiered pricing systems...arg!

I guess it's justified under "hunting is a privilege, not a right" ethic....but, it sure seems to me that that ethic's a bit stretched when it comes to quotas, tag pricing structures and the like.

 

[Outdoor Writer]

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

Two years ago I drew a tag after 7 years of applying and there was 150 total tags. Of this 11 were non resident. Where did the other 4 go?[/b]

The statute that regulates this doesn't say nonresidents WILL get 10 percent of the tags. It says nonresidents are LIMITED to 10 percent of the tags. Big diff.

In the case you cite above, it means only 11 non-residents were picked in the lottery before all 150 tags were gone. Thus, the statute didn't even come into play.

Now as an example only, let's say 15 nonresidents were drawn within the first 100 choices. If another non-resident was selected after that, he could not get a tag for that hunt. BUT, his second choice would then come into play, and if there are tags left and the 10 percent cap was not hit for the 2nd choice, he would get his tag.

And it's also possible that NO nonresidents tags might be included in any one unit if the computer selects NO nonresident names.

*****

The following is meant for everyone, and it might clear up some points on what has occurred with this suit.

This is a part of a column I wrote in Feb. 2003 -- BEFORE the AGFD appealed the case to the Supreme Court, which subsequently TURNED the appeal down. Thus, the 9th Circuit Court remanded the case back to the district judge, ORDERING him to follow its ruling. IOW, the judge who ruled this week had NO CHOICE in the matter; the 9th Circuit overturned the original district court ruling made here more than a year ago that actually backed the AGFD. -TONY

Copyright 2003 by Tony Mandile

Appeal Planned

It all started on Feb. 10, 1998 when Conservation Force, Inc. and several outfitters and guides from New Mexico filed suit in the United States District Court in Arizona against the members of the Arizona Game & Fish Commission who were in office at that time.

The plaintiffs, including United States Outfitters (USO) of Taos, N. Mex., claimed the 10-percent cap on nonresident permits for bull elk (statewide) and for deer north of the Colorado River (North Kaibab) violates the Commerce, Privileges and Immunities and Equal Protection clauses of the U.S. Constitution. They requested “a declaration of invalidity as well as damages.”

When the case eventually came before the federal district court in Arizona, the judge granted the Arizona Game and Fish Department’s (AGFD) cross-motion for summary judgment dismissing the commerce clause claim as a matter of law.
Subsequently, Conservation Force, Inc. dropped out, and the other plaintiffs-- Lawrence Montoya, Filberto Valerio and Carole Jean Taulman, wife of George Taulman who owns USO -- appealed the decision as individuals to take advantage of the commerce law. The case moved to the 9th District Court of Appeals in California.

It was argued and submitted in Dec., 2001. On August 20, 2002, the 9th District Court issued its opinion.

It pointed out that Arizona is home to what is considered by many hunters to be some of the best deer and elk hunting in the world, exemplified by the world-record animals harvested from its lands.

“The quality of the hunting in Arizona is in large part a result of the conservation efforts supported by Arizona citizens and administered by the Arizona Game and Fish Department,” the court files state.

It also states, “In early 1990, the department conducted a poll of resident big-game hunters and found that nearly 75 percent favored restricting the number of hunting tags issued to nonresidents, many expressing the opinion that nonresidents should be excluded from hunting in Arizona entirely”.

For many years, Arizona distributed the limited hunt tags for antlered deer and bull elk through a lottery without regard to the residence of the applicant. In the late 1980s, however, the AGFD began to receive vocal complaints by Arizona hunters objecting to competition with nonresidents. Many felt that nonresidents were getting more than their fair share of the hunt opportunities, especially for premium hunts. To better meet the overwhelming desires of the resident hunting public, in 1991 the game commission amended Rule 12-4-114 of the Arizona Administrative Code. It placed a 10-percent cap on the number of tags that could be awarded to nonresidents for the hunting of bull elk throughout the state and for antlered deer in the area north of the Colorado River.

The AGFD explained that the continued management of Arizona’s big game “is dependent on the continued support of Arizona residents” and that Arizona residents should be afforded the opportunity “to hunt Arizona’s best.”

On the other side of the aisle, the plaintiffs, who are all professional guides who apply for hunting tags around the country for their clients, claimed that profit making is their sole purpose in hunting these animals in Arizona, and that they do not hunt for recreational enjoyment. Instead, they argued that they hunt to “obtain the meat of the animals, their hide, their ivories, and especially their head and rack of antlers to profit from the sale and use of the non-edible parts.”

Judge Raymond C. Fisher of the 9th District Court wrote the following conclusion for the majority opinion:

“We hold that Arizona’s cap on nonresident hunting substantially affects and discriminates against interstate commerce and therefore is subject to strict scrutiny under the dormant Commerce Clause. Arizona has legitimate interests in regulating hunting to conserve its population of game and maintain recreational opportunities for its citizens. We remand for further proceedings to determine whether Arizona has met its burden of showing that it has no other means to advance its legitimate interests.”

In effect, the 9th Circuit Court overturned the Arizona court’s decision, thus finding in favor of the plaintiffs. The rationale behind the decision involved the sale of elk and deer antlers, as allowed under state law in Arizona. In other words, the plaintiffs convinced the appeals court that their purpose for applying for permits was obtaining these antlers to sell and not for the recreational hunting provided.

The decision forced the AGFD to pick one of several options available:

· Dump the nonresident cap
· Outlaw the sale of deer & elk antlers by anyone
· Raise the cost of nonresident permits high enough for a de facto cap
· Appeal the decision to the U. S. Supreme Court

The Arizona Game and Fish Commission voted unanimously last October to choose door #4 – an appeal to the Supreme Court, which will have the option to hear the case and rule or simply decline hearing it altogether.

On almost the same day the game commission voted for the appeal, U.S. Attorney Paul K. Charlton’s office in Phoenix indicted two individuals on charges stemming from an investigation known "Operation Navajo Buck (ONB)." One of them happens to be George Taulman, owner of USO.

Conducted during 1998 and 1999, the ONB investigation led to the arrest and conviction of several big-game guides based in Utah, Arizona, and New Mexico. They unlawfully used aircraft prior to and during hunting seasons to locate deer and elk for hunting clients on the Navajo Indian Reservation in northeast Arizona. As a result, 12 individuals have paid fines of $85,000 and have forfeited one aircraft and unlawfully taken wildlife.

Taulman’s indictment charges him with one felony violation of the Lacey Act, two felony violations of conspiracy to violate the Lacey Act, and two misdemeanor violations of the Airborne Hunting Act.

The felony violation of the Lacey Act alleges one of Taulman’s clients killed an elk with the aid of an aircraft in 1999. The felony conspiracy counts allege that Taulman conspired to use aircraft to aid hunting clients in the taking of elk in Arizona during 1998 and 1999. Taulman’s business, USO, is also under indictment on three felony counts related to the 1998 and 1999 hunts. The indictment also seeks the forfeiture of the outfitter’s Cessna 182 aircraft, which he allegedly used during the hunts.

Another indictment cited David Holton III, of Lake Montezuma, Ariz., who is listed as an employee of USO. He is charged with one felony violation of the Lacey Act, one felony violation of conspiracy to violate the Lacey Act, and one misdemeanor violation of the Airborne Hunting Act. All violations relate to aiding a client with an aircraft so he could kill an elk in 1998 near Payson, Ariz.

The federal Lacey Act makes it unlawful to transport, sell, receive, acquire or purchase wildlife which was taken, transported, possessed, or sold in violation of state, federal, or indian tribal laws or regulations. Violations carry maximum fines of up to $250,000 for a person, $500,000 for a corporation, and up to five years in prison. All vehicles and aircraft used in violation of the Lacey Act are subject to forfeiture.

The federal Airborne Hunting Act makes it unlawful to shoot animals from an aircraft or to harass animals with an aircraft. The Airborne Hunting Act Regulations prohibits a person, while on the ground, from taking or attempting to take wildlife by means, aid, or use of an aircraft. Maximum penalty for violations of the Airborne Hunting Act include fines of up to $100,000 for a person, and $200,000 for a corporation, and one year in prison.

 

['Ike']

OW, I thought the case against USO had been dropped? Maybe I heard wrong, but it was supposidly thrown out.........

 

[Outdoor Writer]

Ike,

Are you asking about the permit issue or the charges against Taulman?

If the permit issue, the ruling this week was the final action of THAT case, which began in 1998.

Here's the squence that occurred.


Several Plaintiffs file suit against Shroufe and the AZ game commission

Federal district judge (AZ) rules in favor of AGFD (Shroufe)

USO and other plaintiffs appeal to the 9th Circuit Court (CA based)

9th overturns AZ district court, citing the Commerce Clause and remands it back to AZ district court

AGFD appeals the 9th CC's ruling to the Supreme Court

SC refuses to hear it, thus the 9th CC's ruling stands

AZ District court overturns the ORIGINAL ruling that went in favor of the AGFD (this week's action)

-TONY

 

[wmidbrook]

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

It says nonresidents are LIMITED to 10 percent of the tags. Big diff.[/b]

Thanks UW. That clears up my confusion--I'll have to look up NV and OR regs to double-check the language used again.

Still it doesn't change how I feel about non-res quotas and two-tiered pricing structures.

 

[Outdoor Writer]

Latest update:

State asks court permission to continue current hunt draw process

PHOENIX — The Arizona Game and Fish Commission is asking a federal court to allow it to continue the fall hunt permit drawing—with the nonresident cap intact.
At a public meeting of the commission today, Assistant Attorney General Jim Odenkirk informed the public that the Game and Fish Department has filed a motion for temporary relief from a court order imposed July 13. That order, by U.S. District Judge Robert Broomfield, declared Arizona’s 10 percent cap on nonresident hunt permits unconstitutional and directed the department to refrain from enforcing the cap.

In the midst of the commission meeting, Broomfield’s office responded to the motion by scheduling a teleconference with plaintiffs’ and department attorneys the morning of July 19. The teleconference will be held at 10 a.m.

Following the teleconference, the Game and Fish Commission will hold another public meeting to take further action. The commission meeting will be held at noon, Monday, July 19, at the Wildlife Building on the Arizona State Fairgrounds, 1826 W. McDowell Rd.

The motion for temporary relief asks the judge to allow the department to finish the fall hunt draw already begun. In the motion, Odenkirk calls the judge’s injunction “an extraordinary circumstance that will lead to unexpected hardship” and says the department had almost completed the process of issuing hunt permits. The motion also says the order jeopardizes the department’s ability to issue permits before the first hunt on Aug. 6.

Meantime, the commission has ordered the department to release the names of applicants who have been drawn for species not affected by the court ruling: buffalo, bighorn sheep, turkey and antelope. That information will be released by 5 p.m. on July 20.

The court ruling directly affects those hunters who applied for a bull elk permit or who applied for a permit to hunt antlered deer in Hunt Units 12A, 12B, 13A and 13B (north of the Colorado River), and delays draw results for all deer and elk hunt applicants.

More than 270,000 people applied for big game permits for the fall hunt.

More than 120 of those applicants turned out for today’s Game and Fish Commission meeting, many of them to implore the commission and the department to find new ways to protect residents’ opportunities to hunt.

Game and Fish Director Duane Shroufe says they intend to do just that.

“This court decision does not mean that the department will abandon its efforts to maintain the highest possible level of resident hunting opportunity,” he says.

The department’s deputy director, Steve Ferrell, says it’s critical that Arizonans have a fair opportunity to benefit from, and protect, the state’s wildlife resources.

“We are very disappointed with the ruling,” says Ferrell. “We believe that maintaining resident opportunity is the best way to support conservation. Engaged residents are crucial in the support of wildlife management, by way of volunteerism, guardianship, and by financial and political means. Anything that diminishes resident interest in their wildlife resources ultimately threatens the support Arizona residents are uniquely positioned to provide.”

Montoya vs. Shroufe began in 2000, when Lawrence Montoya, a self-described professional hunter from New Mexico who also runs a guide service, sued the Game and Fish Department claiming that Commission Rule 12-4-114E, which established the 10 percent cap on nonresident hunt permits, violated the Commerce Clause of the U.S. Constitution.

In the July 13 ruling, Judge Broomfield agreed and said it was up to the state to demonstrate the cap was the least discriminatory means available to protect its interests, which the judge said the state failed to do.

However, Broomfield also left the door open for the Game and Fish Department to find another method. Citing an earlier decision by the Ninth Circuit Court of Appeals, Broomfield said that “Arizona has complete freedom to craft a rule which adequately serves its legitimate interests so long as it does not violate the Constitution.”

The Game and Fish Commission will discuss long-term options at a meeting to be held in Flagstaff, Aug. 13-14.

The department will keep hunters informed about the situation by posting news about the fall draw on its Web site, azgfd.com.

 

[Outdoor Writer]

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

Still it doesn't change how I feel about non-res quotas and two-tiered pricing structures.[/b]

Yeah, it would much better if they get rid of both those and just prevent all nonresidents from hunting here.

Perhaps then I might get a bighorn permit. This was the 35th year I've applied.

-TONY

 

[wmidbrook]

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

Yeah, it would much better if they get rid of both those and just prevent all nonresidents from hunting here[/b]

I needed a good laugh...

 

[wmidbrook]

Hey, maybe states will wise up and start defining residency by the GMU you live in and charge non-resident rates to hunt outside your Game Managment Unit of residency.....now that'd be the ticket

 

[Coues]

Today at the meeting, a suggestion was brought up. If this is forced down our throats, require all non-residents to hire a guide or outfitter are residents of the state.

I thought for sure the G&F would shoot that down immediatly, but they actually said it was being discussed.

I was not at the meeting, I heard that second hand. So take it for what it's worth.

 

[warren nelson]

How many NR apply each year is it 10% of the total number of tags or applications. If they DON"T issue 10% to NR then yea there is a problem, How many residents buy Just a license to get there bonus point, Not very many and they don't have to spend a 118 bucks either. Hell yes the resident fees should be higher, how many would quit hunting if they raised the resident tags fees a $100 bucks. If a ton of guys dropped out because of that you sure could draw a tag sooner. I don't think raising the tags fee will help because those that Want a trophy buck or Elk will still paid to get into the draw, The guy who puts in just because it cheap will be the guys who drop out will they still hunt I'm sure they would put in for those areas close to home since they don't want to travel a great distance to hunt. The 2-tier system for resident and NR is outdated and need to be address, Hey this is first round of alot of legal battles that will be changing the face of hunting as we know it, Get ready to deal with it, Maybe a area should be resident only.Some States have places that is for resident only hunts maybe that is a option for some areas in AZ, Now with all that said and done Do I Get a tag this year. If I spend a $ 1000 dollars on drawing a 13-b tag over 8-9 years(buying licenses) who has put more money in to the fish and Game system( to help the wilflife) the resident who spent maybe 200 in the same time. I have been saying for along time if they don't raise the resident tags in several States some-one will find a way to do it for them and they will not like the results.

 

[DAWG]

Cool. We are in the denial/punishment of the innocent phases. Outfitters brought the suit up, so reward them and punish those who will not use their services by mandating nonresidents use one.

 

[paulc]

Problem is larger population/more hunters and less hunting oppurtunities.

I apply in 10 states every year and i spend alot of time on it. I believe that there needs to be a better balance between res and non res hunters. 10% for non res is ridiculously low.
I agree that Non Res should pay more.
I believe that using an outfitter should not give you better odds as it does in NM.
I also think that they could utilize lifetime hunt oppurtunities or using a 5 year unable to apply rule as they do in CA.

Its not all about money. Its also about how much effort you are willing to put out. Are you willing to spend the time reading other states regs?
Are you willing to do the do diligence to research a good hunt?

Lots of people whine about hunting oppurtunities, but it is like everything else in life. There are those that whine about how things are and there are those that do something about it.

USO did something about it for selfish financial reasons, but, indirectly they are reprenting alot of us that are just trying to apply for tags.

There will be no easy answer because quality hunting oppurtunities are not increasing to keep up with the number of hunters.

 

[subfan]

I am not in favor of the mandatory guide requirement. Like others have said, this helps USO get more clients.

 

[Coues]

Don't get me wrong.I am not in favor of mandatory guide's either. Just telling you what was said.

 

[arizona jim]

If AZ game and fish considers requiring all out of state hunters to have a guide doesn't that play into USO's hand ? ( not that I am against that yet, just thinking out loud ).

If they did that they should also .......

1) triple the cost of out of state tags

2) Eliminate the out of state hunters ability to earn bonus points ( of course let them use up the ones they have already earned ).

3) Give AZ residents an additional permanent bonus point if they have purchased a hunting liscence & applied for the big game draw for at least ten years in a row.

We pay for the majority of AZ big game habitat, conservation efforts, and game management here. We should get the majority of the tags.

wmidbrook you can't say it is the same as movie tickets or ski lift tickets because those can be increased at will. They are man made / created. Big game is a natural resource.

 

[arizona jim]

If AZ game and fish considers requiring all out of state hunters to have a guide doesn't that play into USO's hand ? ( not that I am against that yet, just thinking out loud ).

If they did that they should also .......

1) triple the cost of out of state tags

2) Eliminate the out of state hunters ability to earn bonus points ( of course let them use up the ones they have already earned ).

3) Give AZ residents an additional permanent bonus point if they have purchased a hunting liscence & applied for the big game draw for at least ten years in a row.

We pay for the majority of AZ big game habitat, conservation efforts, and game management here. We should get the majority of the tags.

wmidbrook you can't say it is the same as movie tickets or ski lift tickets because those can be increased at will. They are man made / created. Big game is a natural resource.


P.S. This is a "States Rights" issue and the Feds. should keep their noses out of it. Pretty soon they will want to come in and run our elections for us.

 

[widgnwhacker]

Im a bit pissed at the whole deal. For instance, as a NON-Resident of CALIFORNIA we are not able to even apply for a California Elk Tag

So when I hear people hear sniviling about what is not fair and so on I say GET OVER IT

I buy a California Non-Resident hunting license and Duck stamp so that I can hunt ducks on the California side of the Colorado River. It is mighty EXPENSIVE but I ain't bitching about it. I pay the price because I want to hunt ducks and geese.

So I hope they raise the price of Non-Resident Elk Tags through the roof.

I would also like to see the ONLINE application process be limited to Residents only. That way the Non-Residents would have to put their money up front. That would slow down the FLOOD a bit. How would you Cali guys like it if we Non-Residents that don't Live, Work or Pay Taxes just walked right into your favorite hunting areas and took away what was once yours

WW

 

[superduty]

widgn, I can see how you seem to be upset but <div class='quotetop'>QUOTE </div>

GET OVER IT[/b]

. You have a high fence mentality. Buy it up and put a fence around it so no one else can enjoy it. Your putting a fence around your state Bro. We need to watch the fences around our Country not your State.

The programs are put into place to protect what you enjoy so much. Yea, politics gets their grubby hands into the monies every so often to get their butts out of a pinch but the day we give up on the people that are trying to preserve our rights as hunters is the day we ALL lose out.

Enjoy your duck and goose hunting on the California side.

 

[muskeg]

WW is correct .....

If I want to hunt Elk in Cali I have to hire a guide / go on a canned hunt / or buy a Landowner tag / or bid a tag at a fundraiser (have you seen those bid prices)..... Tejon gets $20,000 for a bull Elk.

The same with Antelope.

But at least it's those choices and not like in NV where you must by a license and put in for 1 of 2 tags (in some units) for non-res. Some hunters have put in for 20 years and not drawn. In Oregon some hunters have put in for the draw for as long as the draw has been in established and not drawn!!!!

Alaska has the Guide law mainly as a management tool, hunter safety issues are a small piece of the pie. If Grizz Bear tags went over the counter for non-res it would not be long (probably the first season) that the Grizz Bear harvest quota set by law (4% male, 1 1/2% female of the base population of the given area) would be reached or exceded and it would go to a once in a lifetime draw like the Cali sheep tag or even closed to hunting.

Az has developed a good big game management system over many years. I think most hunters, were and are, OK with the system.

No states are perfect with there non-res systems. But in all the west Az has it down probably the best. Cali not to well. Oregon with it's 2% and 5% non-res caps is about medium and Wash is the pits for the non-res hunter.

But I'm sure we all agree that when push comes to shove with any particular hunt or species that the RESIDENT hunter should get the upper hand. The problem is defining when 'push comes to shove' should be.

In the upcoming process in Az public opinion will play a big part in the changes to come. Get involved if you don't like things like they are.