Caribou Gear

NonResident Quota in AZ being Challenged


New member
Jan 3, 2001
Littleton, CO, USA
Just grabbed this off of the Colorado Bowhunting Association Link submitted by Flint Napper.

This could be the start of something.


"The 9th Circuit Court of Appeals ruled today that it is unconstitutional for the state to limit the number of non resident hunters.

Court: Elk, deer hunting permit distribution unfair By HOWARD FISCHER Capitol Media Services 08/21/2002

An 11-year-old rule that reserves 90 percent of certain deer and elk hunting permits for Arizonans violates the federal commerce clause, the 9th U.S. Circuit Court of Appeals ruled Tuesday. The three-judge panel said the restriction affects interstate travel, discouraging out-of-staters "who want to take advantage of Arizona's excellent hunting opportunities." The judges also noted that because there is a commercial market for things like antlers and hides, the rules impair interstate commerce.

In fact, the judges said, if they permit arbitrary limits here, it would open the door to similar laws in other states.

"Montana could then reserve 90 percent of its trout fishing, California 90 percent of its beach access, Colorado 90 percent of its back country skiing and so on until recreational opportunities and the businesses that served them were partitioned at state lines," wrote Judge Raymond Fisher for the court.

Fisher said the state does have a legitimate interest in regulating hunting to conserve its game population and maintain recreational opportunities for its citizens. He said the court would entertain some "less discriminatory means" than the absolute cap on the number of permits for nonresidents.

A spokesman for the state Game and Fish Department said his agency was still studying the ruling and had no comment.

Fisher said that until 1991 the state distributed limited hunting "tags" through a lottery, without regard to the residency of the applicant. But then came what the court said were some "very vocal" complaints by Arizona

hunters, as well as a poll of hunters which showed nearly 75 percent favored a restriction on the number of tags for those who do not live in the state.

The 1991 rule puts a 10 percent cap on the number of tags that could be awarded to nonresidents for hunting bull elk through the state and for antlered deer north of the Colorado River. The Game and Fish Department also set up a system where those who get Arizona hunting licenses but do not get a tag get bonus points -- a system that has resulted in more tags being awarded to Arizonans.

That resulted in a lawsuit by professional hunters and guides who want the meat of the animals, their hide and especially the head and rack of antlers which they can sell at a profit.

Fisher said the Constitution gives Congress the power to regulate commerce. He said that was designed to keep each state from erecting barriers.

The court also noted that Arizona allows the non-edible portions of bull elk and antlered deer to be sold in interstate and international markets.

"By disadvantaging nonresident hunters who seek to engage in this commercial pursuit, Arizona burdens interstate commerce at its point of supply," Fisher wrote.

In sending the case back for trial, the appellate also questioned whether there was really a need for that 90 percent requirement. Fisher said there was evidence that even before the system Arizonans received more than 90 percent of the tags.

"A factfinder reasonably could conclude from this evidence that Arizona's regulation was designed to respond to political pressure from the (Game and Fish) Department's constituency, not to any actual need of Arizonans for more hunting opportunities," he wrote.

Fisher said even if Arizona can show there is some need for state action to ensure that residents have access to recreational hunting, that still leaves the question of whether that is the "least discriminatory alternative" to serve that interest. He said the trial judge may want to look at options, such as a nondiscriminatory version of the bonus point system.
This judge sounds like a moron. Comercial market for wildlife products? Last time I checked that was illegal. He thinks this is bad cause it could lead to similar treatment of other resources in other states? So????
FYI, I thought you all might be interested in what happened up in Montana several years ago. Here's an excerpt of the Supreme Court's decision in Baldwin V. Montana Fish and Game Commission (436 US 371) from 1978:

"Does the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause? Merely to ask the question seems to provide the answer. We repeat much of what already has been said above: Elk hunting by nonresidents in Montana is a recreation and a sport. In itself - wholly apart from license fees - it is costly and obviously available only to the wealthy nonresident or to the one so taken with the sport that he sacrifices other values in order to indulge in it and to enjoy what it offers. It is not a means to the nonresident's livelihood. The mastery of the animal and the trophy are the ends that are sought; appellants are not totally excluded from these. The elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved. Appellants' interest in sharing this limited resource on more equal terms with Montana residents simply does not fall within the purview of the Privileges and Immunities Clause. Equality in access to Montana elk is not basic to the maintenance or well-being of the Union. Appellants do not - and cannot - contend that they are deprived of a means of a livelihood by the system or of access to any part of the State to which they may seek to travel. We do not decide the full range of activities that are sufficiently basic to the livelihood of the Nation that the States may not interfere with a nonresident's participation therein without similarly interfering with a resident's participation. Whatever rights or activities may be "fundamental" under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by nonresidents in Montana is not one of them. V Equal protection. Appellants urge, too, that distinctions drawn between residents and nonresidents are not permissible under the Equal Protection Clause of the Fourteenth Amendment [436 U.S. 371, 389] when used to allocate access to recreational hunting. Appellees argue that the State constitutionally should be able to charge nonresidents, who are not subject to the State's general taxing power, more than it charges its residents, who are subject to that power and who already have contributed to the programs that make elk hunting possible. Appellees also urge that Montana, as a State, has made sacrifices in its economic development, and therefore in its tax base, in order to preserve the elk and other wildlife within the State and that this, too, must be counted, along with actual tax revenues spent, when computing the fair share to be paid by nonresidents. We need not commit ourselves to any particular method of computing the cost to the State of maintaining an environment in which elk can survive in order to find the State's efforts rational, and not invidious, and therefore not violative of the Equal Protection Clause. A repetitious review of the factual setting is revealing: The resident obviously assists in the production and maintenance of big-game populations through taxes. The same taxes provide support for state parks utilized by sportsmen, Plaintiffs' Exhibit 1; for roads providing access to the hunting areas, Tr. 156-158, 335; for fire suppression to protect the wildlife habitat, id., at 167; for benefits to the habitat effected by the State's Environmental Quality Council, id., at 163-165; for the enforcement of state air and water quality standards, id., at 223-224; for assistance by sheriffs' departments to enforce game laws, Defendants' Exhibit G, p. 13; and for state highway patrol officers who assist wildlife officers at game checking stations and in enforcement of game laws. Forage support by resident ranchers is critical for winter survival. Tr. 46-47, 286. All this is on a continuing basis."

Even though this had to do with Montana, I'd like to hear what all of you have to say after reading the above. Do you still think George and Co., as "businessmen," should have equal access to Arizona's wildlife?

The Montana case back in the 70s was about the priveledge and immunities clause. This new case in Arizona is about protecting interstate commerce, that's a different law. Congress regulates this so the states cooperate for the good of the union. The outfitters, the motels, the taxidermists, all that is interstate commerce that is protected by the US congress. As I understand it, its this interstate commerce law that people think is being violated with the expensive out of state liscenses and imbalanced out of state quotas used and charged by several states.

I don't think the judge is a moron, he's making people follow the interstate commerce laws for the good of the union. Where is this from, what link?

<FONT COLOR="#800080" SIZE="1">[ 08-30-2002 13:47: Message edited by: Tom ]</font>
Regarding the following quote from the above article...

"The court also noted that Arizona allows the non-edible portions of bull elk and antlered deer to be sold in interstate and international markets. "

Can anyone comment on this? It was my understanding that it violated federal law to sell wildlife products.
No, its not illegal to sell antlers, capes, hides, etc. It happens all the time, and its totally legal. The meat of said big-game cannot be bought or sold however.

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