MT Fielder's Constitutional Referendum

[Nameless Range]

Here's the new wording.

I don't have a legal mind. What's the verdict on the new wording?

 

[teamhoyt]

It seems well intended. Can anyone offer insight as to what this accomplishes?

It says everyone has the right to do all this.... As long as you have a license.

Which seems to make it all mucked up.

We can put it in the constitution and down the road when someone don't want trapping they just don't issue a trapping license.

 

[JBS]

I read that RMEF is now in support of this. What are the thoughts of the politically astute individuals on this site? Thanks

 

[Oak]

How did this conclude?

 

[Oak]

So I see this passed 2nd reading today. Are sportsman's groups now in favor of it?

 

[Nameless Range]

It's been strange how quiet sportsman's groups have been on this. Maybe just too much else going on that is crazier.

 

[Gerald Martin]

Maybe that's because it's the first piece of supportable legislation she's proposed this session and maybe in her career and even now may well be fraught with unintended consequences. I think sportman's groups are tentatively supportive of this legislation, it's just hard to get excited over the digestability of this bill when you are used to seeing her serve stink sandwiches as normal fare.

 

[katqanna]

This was sent earlier, written by former FWP Chief Counsel Bob Lane, a legal assessment of SB 236.

SB 236 Poses a Significant Risk for Montana Residents Who Hunt, Fish and Trap

SB 236 risks Montana’s ability to differentiate between residents and nonresidents in issuing or awarding hunting and fishing licenses. The risk SB 236 poses is significant and unavoidable. Passage of SB 236 could mean that
resident and nonresidents will be required to pay the same license fees and compete equally when FWP limits the number of licenses available.

The Risk​

• Right now, the Montana Constitution, in Article IX, section 7, protects hunting, fishing, and trapping against attacks. FWP has always and continues to support this protection of hunting, fishing, and trapping as part of our heritage.
• SB 236 would provide no more protection than we currently have. However, by using the term “right” there is, ironically, a significant risk of unintended consequences.
  
  The Reason there is a Risk
  
• Montana charges higher fees for nonresident hunters and anglers and in many other situations restricts the number of hunting licenses allocated for nonresidents as compared to residents.
• This differentiation, or discrimination, against nonresidents has been upheld in federal court (In the 1978 Baldwin case). The Baldwin case allowed Montana to charge nonresidents more than residents because the court held that the Privileges and Immunities Clause in the U.S. Constitution does not apply to hunting, because hunting is a privilege. The Privileges and Immunities Clause does not allow discrimination against nonresidents for those rights that are basic and essential to citizens.
• Making hunting, fishing, and trapping a right may undermine the Baldwin decision. A constitutional right has to mean something. Whether or not it means a fundamental right, for the purposes of the Privileges and Immunities rights of all U.S. citizens will be left to a federal judge to determine based on his or her analysis of the citizen’s rights that are protected by the Privileges and Immunities Clause.
  
  The Nature of the Consequences
  
• A federal court decision could result in residents and nonresidents paying the same for a license and competing equally when the number of licenses are limited.
• This would require a fundamental restructuring of Montana’s licensing system and financing for fish and game management. It would frustrate the long held belief that Montana residents should be favored in the allocation and pricing of hunting, fishing, and trapping opportunities.
  
  The Likelihood of a Challenge
  
• Based on the history of legal challenges in Montana and other states, SB 236 would unquestionably generate a renewed challenge to the disparate treatment of residents and nonresidents. These challenges could be based on privileges and immunities, equal protection, and/or dormant commerce clause claims.
• The lesson learned is that there are groups and individuals who look for the ability to challenge different allocation and pricing to residents and nonresidents.
  
  Other Potential Consequences
  
• Making hunting, fishing, and trapping a “right” has the potential for unintended consequences that depend on future factual circumstances. When a constitutional right is created, a court must afford that right its due weight. Consider where there is an otherwise irreconcilable conflict between a “right” and “trespass” for example, where private property harbors most of the elk in a hunting district, then the right to hunt might prevail. And a judge would make that determination.
• If there is an irreconcilable conflict between the right and state management, especially where, for example, disease or invasive species could be involved, a court could limit the management action or regulation.
• And this tension would be always be embedded in the Montana Constitution.
  
  Summary
  
• The goal of preserving hunting, fishing, and trapping against attack is already enshrined in Montana’s constitution. This protection has already been accomplished.
• SB 236 does a disservice to Montana hunters, anglers, and trappers by amending Montana’s Constitution unnecessarily while creating significant and unavoidable risk.
  
  Background
  
• FWP has always been a staunch and committed advocate for hunting, fishing, and trapping under Montana’s harvest heritage. It has done so in a way that does not carry substantial risk.
• FWP’s stance on embedding the “right” to hunt, fish, and trap in Montana’s constitution remains consistent since 1991.
• Director Williams has litigated this issue in defense of the state. While at FWP, she researched and litigated whether fishing outfitting could constitute “commerce” under the U.S. Constitution. At the time, there were cases in other states that called the foundation of Baldwin into question.

 

[1_pointer]

This was sent earlier, written by former FWP Chief Counsel Bob Lane, a legal assessment of SB 236.

Just a question. IIRC there have been some anti-trapping issues raised in MT either through the legislation or a potential ballot initiative. Would that not be moot if the first bullet point is interpreted literally?

 

[Ben Lamb]

Just a question. IIRC there have been some anti-trapping issues raised in MT either through the legislation or a potential ballot initiative. Would that not be moot if the first bullet point is interpreted literally?

When I-177 was on the ballot, it didn't ban trapping altogether, it tried to regulate it out of existence on public land. So trapping would still have been allowable, just not on state or federal lands. That would have left trapping in roughly 70% of Montana. The thought that we can protect hunting, fishing and trapping from people exercising their constitutional right to seek ballot initiatives is nice, but it's not backed up by law. We will still have the fights. We will still need to raise money and push back against hte anti-trapping & hunting community. If anyone is telling you that this amendment would strictly protect hunting, fishing and trapping, they are misinformed, or not telling the whole truth.

The concerns detailed in the memo above are real, and backed up by several lawyers including former FWP chief legal counsel Bob Lane. It is unfortunate that some in this debate would rather call others names than sit down and work towards a better solution. There exists in this issue legitimate differences of opinion that if it were simply statute we were changing, would result in less than dramatic changes. Since we are looking at amending the constitution of the state of Montana, many of us feel like taking the time to get the language 100% spot on is more important than passing a bill this session, especially when I-177 went down almost 2-1. To my knowledge, there are a few groups who are opposing this because of their anti-trapping stance, but the bulk of the resistance right now is coming from sportsmen groups who have legitimate concerns about how the wording will affect not only the resident versus non-resident issues, but non-game management and private property rights.

The sportsmen groups who are opposed to the current language are not opposed to the concept, nor are they anti-trapping. They simply have concerns about the current language and even though this draft is better, many concerns still remain.

 

[teamhoyt]

Ben, I agree, it seems this entire session has been filled with bills that get thrown together willy nilly. It seems with what is on the line with a lot of this stuff that getting it right the first time is better than passing it to find out what's in it

 

[Straight Arrow]

Unfortunately Senator Fielder is gaining a reputation for "fielding" proposals which have not been adequately analyzed with respect to legal, constitutional, and realistic concerns. Some would characterize it as "willy nilly". Others might characterize it as "importing Utah".

 

[1_pointer]

Ben- We seem to be talking past one another, which is not surprising as I typed that in haste. The bullets points posted are reportedly from Bob Lane. It states that the Montana Constitution protects hunting, fishing and trapping from "attacks". I guess I don't see having to shoot down I-177 as being protected from "attack".

Carry on with the discussion.

 

[Chuckle]

In Baldwin v. Fish and Game Commission of Montana (1978) the Court affirmed the right of Montana to charge higher fees for out-of-state elk hunters. Justice Blackmun found that the Privileges and Immunities Clause only applied to activities which bear "on the vitality of the Nation as a single entity." Since elk hunting is a recreational activity and not fundamental to the survival of nonresidents of Montana, Blackmun argued that it did not fall within the scope of the protections guaranteed by the Constitution. "Equality in access to Montana elk is not basic to the maintenance or well-being of the Union," he concluded.

It's debatable whether or not making hunting, fishing and trapping a right in Montana's Constitution, subject to necessary and proper management and conservation statutes and legislative/agency regulatory authority, would make elk hunting fundamental to the survival of nonresidents of Montana and therefore prevent the state from charging them higher license fees.

The US Court of Appeals for the 10th Circuit ruled in Schutz v. Thorne (2005) that the State of Wyoming's practice of favoring residents over nonresidents in terms of license fees and quotas did not violate the 14th Amendment's Equal Protection Clause, citing the Baldwin case, and stating: "applying the rational basis review, the district court concluded that the Fee and Quota Statutes are reasonably related to a number of legitimate ends. First, they 'help to encourage residents to maintain their residency and by extension support [Wyoming] conservation programs."

In addition, Congress in 2005 approved HR 1268, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief. The following language was included: "It is the policy of Congress that it is in the public interest for each State to continue to regulate the taking for any purpose of fish and wildlife within its boundaries, including by means of laws or regulations that differentiate between residents and nonresidents of such State with respect to the availability of licenses or permits for taking of particular species of fish or wildlife, the kind and numbers of fish and wildlife that may be taken, or the fees charged in connection with the issuance of licenses or permits for hunting and fishing. Silence on the part of Congress shall not be construed to impose any barrier under clause 3 of Section 8 or Article I of the Constitution (commonly referred to as the 'commerce clause') to the regulation of hunting or fishing by a State or Indian tribe."

 

[BackcountryMT]

SB236 passed 3rd reading in the Montana Senate 30-20 today. It will move on to the House for a committee hearing followed by floor action likely within the next week or two. 100 total YES votes are needed in combination from the House & Senate to qualify for the November 2018 general election ballot. With 30 votes in the Senate on the books, we now need 70 of the 100 House members to support it. That will require a concerted effort to break the democrat deadlock. If that is not possible, a citizens initiative can be implemented in order to place it on the ballot by petition.

I will keep you updated as the bill is scheduled for additional action.

FYI: Below is a summary of SB236 that you may share with others as you wish….


SB 236 – RIGHT TO HUNT SUMMARY:

SB 236 proposes to give the people of Montana an opportunity to vote on amending the Article IX Section 7 of the Montana Constitution to protect our right to hunt, fish, and trap while providing for sound wildlife conservation and maintaining respect for private property.

Here is the actual language proposed by SB 236: “The citizens of Montana have the right to hunt, fish, trap and harvest wild fish and wildlife, including the use of customary means and methods. Hunting, fishing, and trapping by citizens is the preferred manner of managing wild fish and wildlife and is subject to necessary and proper management and conservation statutes enacted by the legislature and regulatory authority delegated by the legislature to a designated public agency or commission. The right to harvest wild fish and wildlife is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights”.

SB 236 BOILED DOWN: 3 Vital Sentences to Preserve our Montana Way of Life

SENTENCE #1: “The citizens of Montana have the right to hunt, fish, trap and harvest wild fish and wildlife, including the use of customary means and methods.”

• This clarifies and protects the right of Montana citizens to continue to hunt, fish, trap and harvest wildlife. It also ensures that ordinary, usual, and common means and methods of pursuit, capture, and take are protected by the Constitution.

SENTENCE #2: “Hunting, fishing, and trapping by citizens is the preferred manner of managing wild fish and wildlife and is subject to necessary and proper management and conservation statutes enacted by the legislature and regulatory authority delegated by the legislature to a designated public agency or commission.”

• This allows the state to carry out all necessary and proper management & conservation activities, including licensing, seasons, bag limits, public safety, enforcement, and any other appropriate actions. It also ensures that the state will continue the cost-effective practice of using citizen hunters, anglers, and trappers to aid in controlling and monitoring fish & wildlife populations when practical.

SENTENCE #3: “The right to harvest wild fish and wildlife is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.”

• This is the existing Harvest Heritage clause found in the Montana Constitution, but with two slight revisions to clarify & strengthen its intent and correlate with the other sentences above. Importantly, this language maintains that hunting, fishing, trapping and other management and conservation activities DO NOT infringe upon, or diminish, private property or any other private rights.

SB236 has undergone extensive legal review and earned the support of a growing list of state and national organizations including:
• Montana Sportsmen for Fish & Wildlife
• Rocky Mountain Elk Foundation
• Montana Outfitters & Guides Association
• National Rifle Association
• Montana Shooting Sports Association
• U.S. Shooting Sports Association
• Montana Wool Growers Association
• Montana Trappers Association
• Walleyes Unlimited
• Montana State Houndsmen Association
• Montana Chapter – Safari Club International
South West Montana SCI
Western MT SCI
• Citizens for Balanced Use
• Big Game Forever
• U.S. Sportsmen’s Alliance
• Fur Takers of America
• Montanans for Effective Wildlife Mngt.
• Montanans for Wildlife & Public Land Access

Since 2000, 14 states have adopted very similar Constitutional amendments to successfully promote sound wildlife management and protect the important role of hunting, fishing, and trapping in cost-effective management of wildlife populations. Not one of these states have experienced any of the outlandish problems opponents of SB236 continuously espouse. All Constitutional Right to Hunt states are enjoying stronger protections against animal rights attacks on our outdoor heritage.

SB 236 is good for sportsmen, good for ranchers and farmers, good for wildlife conservation, and great for Montana!

 

[BackcountryMT]

I would like to know how people think non residents are Citizens of MT where do you get that from this bill??

 

[Straight Arrow]

Making hunting, fishing, and trapping a right may undermine the Baldwin decision. A constitutional right has to mean something. Whether or not it means a fundamental right, for the purposes of the Privileges and Immunities rights of all U.S. citizens will be left to a federal judge to determine based on his or her analysis of the citizen’s rights that are protected by the Privileges and Immunities Clause.

One of the risks described by Bob Lane, former FWP counsel.
That is the ambiguity Lane ascribes to the language in the bill as now written and why he thinks there could be litigation regarding R vs NR allocations of licenses, permits, and other distinctions.

 

[BackcountryMT]

From the legal review I have seen of this bill it would need to be placed in section 2 of the constitution for that to be true. This is to amend section 7.

 

[shoots-straight]

One of the risks described by Bob Lane, former FWP counsel.
That is the ambiguity Lane ascribes to the language in the bill as now written and why he thinks there could be litigation regarding R vs NR allocations of licenses, permits, and other distinctions.

I'm no Constitutional attorney, but did take civics classes in high school. How does a state Constitution apply to non residents unless we declare them that right?

 

[Straight Arrow]

How does a state Constitution apply to non residents unless we declare them that right?

Nor am I an attorney. I merely quoted the concern regarding language of the bill expressed by Bob Lane to respond to the question above about NR vs R, without agreeing or disagreeing with his opinion. You may have to ask him to get specific legal analysis.