Subject: Challenge on 10% Cap
Arizona case bodes ill for resident hunters
We don't want to be seen as crying wolf -- or elk or bighorn sheep -- but there's a court case developing in Arizona that
could forever change the face of hunting in Montana.
Boiled down, the case could have the effect of tossing the names of resident hunters into a hat with out-of-state hunters in one
big lottery to decide who gets to hunt in the state.
Four outfitters in the Southwest challenged
Arizona's 10 percent cap on nonresident hunters and the state's practice of charging nonresidents more for permits than it charges residents.
A federal judge in Arizona threw out the case, along with the outfitters' claim that the cap unconstitutionally interferes with interstate commerce.
Hunting is a form of recreation, not commerce, Judge Robert Broomfield said.
However, the outfitters appealed and won in the 9th U.S. Circuit Court of Appeals, which sent the case back to Arizona for trial.
The 10 percent cap is an act of "overt
discrimination," the circuit court ruled, and it violates the commerce clause of the
U.S. Constitution -- primarily because of interstate trade in some animal parts, most notably elk antlers.
Arizona, Montana and 21 other states appealed that ruling to the U.S. Supreme Court, but they lost last month when the
high court refused to take the case.
Now it goes back to the district court for trial, guided by the circuit court's ruling that the caps do violate the commerce clause.
The case still has some distance to go, but the tea leaves at the bottom of the cup aren't promising.
Below is article from a Montana newspaper. The outcome of our case will really effect a lot of folks.
Montana's nonresident requirements are similar to Arizona's, and Montana is in the 9th Circuit.
The appeals court acknowledged that some
interference with interstate commerce might be justifiable in order to conserve wildlife and ensure recreational hunting for residents. But it said the trial court must determine whether the 10 percent cap is the "least discrimatory alternative" for accomplishing those goals.
Interestingly, one of Arizona's arguments on appeal was, in effect, that other states do it -- which in the context of interstate commerce isn't as silly as it might sound at first.
But the circuit judges warned: "If we were to uphold Arizona's set-aside because other states act in similarly discriminatory ways, we would be condoning protectionist warfare that the Commerce Clause was meant to prohibit.
"Montana could then reserve 90 percent of its trout fishing, California 90 percent of its beach access, Colorado 90 percent of its backcountry skiing, and so on until recreational opportunities and the businesses that served them were partitioned at state lines."
There's not much to be done about the Arizona case at this point, but a few things could be done in Montana to head off the same arguments being made here, starting with barring the sale of hides and antlers.
Many won't like that idea, but we suspect they'll like a nationwide lottery for Montana elk tags even less.
Seems like we should quit arguing with each other and maybe start a concerted movement to keep scumbags like George Tallman and USO the hell out of the game.
That means letters to Realtree Outdoors and all of the other shows who support Tallman. Anyone who advertises USO. Magazines, TV shows, businesses, etc.
Arizona case bodes ill for resident hunters
We don't want to be seen as crying wolf -- or elk or bighorn sheep -- but there's a court case developing in Arizona that
could forever change the face of hunting in Montana.
Boiled down, the case could have the effect of tossing the names of resident hunters into a hat with out-of-state hunters in one
big lottery to decide who gets to hunt in the state.
Four outfitters in the Southwest challenged
Arizona's 10 percent cap on nonresident hunters and the state's practice of charging nonresidents more for permits than it charges residents.
A federal judge in Arizona threw out the case, along with the outfitters' claim that the cap unconstitutionally interferes with interstate commerce.
Hunting is a form of recreation, not commerce, Judge Robert Broomfield said.
However, the outfitters appealed and won in the 9th U.S. Circuit Court of Appeals, which sent the case back to Arizona for trial.
The 10 percent cap is an act of "overt
discrimination," the circuit court ruled, and it violates the commerce clause of the
U.S. Constitution -- primarily because of interstate trade in some animal parts, most notably elk antlers.
Arizona, Montana and 21 other states appealed that ruling to the U.S. Supreme Court, but they lost last month when the
high court refused to take the case.
Now it goes back to the district court for trial, guided by the circuit court's ruling that the caps do violate the commerce clause.
The case still has some distance to go, but the tea leaves at the bottom of the cup aren't promising.
Below is article from a Montana newspaper. The outcome of our case will really effect a lot of folks.
Montana's nonresident requirements are similar to Arizona's, and Montana is in the 9th Circuit.
The appeals court acknowledged that some
interference with interstate commerce might be justifiable in order to conserve wildlife and ensure recreational hunting for residents. But it said the trial court must determine whether the 10 percent cap is the "least discrimatory alternative" for accomplishing those goals.
Interestingly, one of Arizona's arguments on appeal was, in effect, that other states do it -- which in the context of interstate commerce isn't as silly as it might sound at first.
But the circuit judges warned: "If we were to uphold Arizona's set-aside because other states act in similarly discriminatory ways, we would be condoning protectionist warfare that the Commerce Clause was meant to prohibit.
"Montana could then reserve 90 percent of its trout fishing, California 90 percent of its beach access, Colorado 90 percent of its backcountry skiing, and so on until recreational opportunities and the businesses that served them were partitioned at state lines."
There's not much to be done about the Arizona case at this point, but a few things could be done in Montana to head off the same arguments being made here, starting with barring the sale of hides and antlers.
Many won't like that idea, but we suspect they'll like a nationwide lottery for Montana elk tags even less.
Seems like we should quit arguing with each other and maybe start a concerted movement to keep scumbags like George Tallman and USO the hell out of the game.
That means letters to Realtree Outdoors and all of the other shows who support Tallman. Anyone who advertises USO. Magazines, TV shows, businesses, etc.
