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N.D. joins nonresident hunting battle
By Janell Cole
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The Forum - 12/31/2002

BISMARCK - North Dakota doesn't allow nonresidents to hunt moose, elk, wild turkey or pronghorn antelope. And just 10 percent of deer hunting licenses go to nonresidents.

But if a federal court decision from Arizona stands, the state may have to open the door to all hunters.

North Dakota and 20 other states have asked the U.S. Supreme Court to overturn a 9th U.S. Circuit Court of Appeals decision that declared caps on nonresident hunters unconstitutional.

The 9th Circuit said Arizona's 10 percent cap on nonresident hunting permits for bull elk and deer violates the U.S. Constitution's Commerce Clause because the restriction substantially affects commerce. The decision came out in August.

North Dakota Attorney General Wayne Stenehjem said the 9th Circuit ruling flies in the face of previous court decisions that said wildlife is not commerce and states have overriding rights to regulate hunting and fishing.

"It would be very detrimental if that ruling were to take effect. That's why it's so important for the Supreme Court to look at it," Stenehjem said Monday. "It would be a tremendous blow to our resident hunting and fishing programs in North Dakota."

Previous state and federal court rulings in Wyoming, Alaska and elsewhere said that states have a legitimate right to give residents preference for the purpose of conserving scarce wildlife resources. Those courts also said the fact that the restrictions affect the interstate transportation of prospective hunters to and from a state is only incidental and does not trigger the Commerce Clause of the U.S. Constitution.

The Commerce Clause prohibits states from regulating interstate commerce.

The case involves the Arizona Game and Fish Commission being sued by a professional hunting guide service in New Mexico, which said the 10 percent cap violates the Commerce Clause.

Stenehjem said giving nonresidents equal access to hunting and fishing, and at equal license cost, would make the recent North Dakota dispute over a 30,000 cap on nonresident waterfowl licenses mild by comparison.

He said North Dakota and the other states joined Arizona's appeal as friends of the court. It was filed last week. Montana took the lead among states that joined Arizona.

Stenehjem said North Dakota Game and Fish officials agree the reverberations in North Dakota could be tremendous if the 9th Circuit decision stands.

Roger Rostvet, deputy director of the North Dakota Game and Fish Department, said other courts have always found hunting to be recreation, not commerce. He doesn't know what the exact implications would be of opening the door to nonresidents

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It absolutel woulD affect SD Chris, along with every other state. But dont worry about the states dismantling there systems just yet. I have had conversations with two different attorneys about this subject, and both say that it would be a HUGE change in the law if this decision is let stand. One said that that particular Circuit Court is one of the most overturned in the nation, and had no doubt that this will be one of those decisions. More disturbing to me is the number of resident landowners and regular citizens that I meet who think this is exactly what should happen. Throw the doors wide open in one of there words. I think we need to do a much better job of educating people as to why t is good to support the resident hunters, rather than sell our wildlife out to the highest bidder. :puke:

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The 9th circuit is always handing down crazy opinions/rulings - many of the goofy rulings you hear coming out of california - that's these guys. I have confidence that it will be over turned.

SD is in the 8th circuit, so I believe the impact is less direct until it is challenged there or the US supreme court rules.

However, the timing of this is good: it forces folks to consider whether hunting is recreation or commerce - essentially the same argument going on locally. However, the stakes have been raised considerably. Do you think we will hear anyone from the guide association supporting no NR restrictions and the same NR and fees?


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TSODAK: Correct me if I am wrong.

The NR waterfowl hunting quota court case and court decision in South Dakota was within the SD state court system. Final decision was made by the SD state supreme court.

The AZ court decision was actually made in an US Federal court (9th U.S. Circuit Court of Appeals). The US Federal Supreme court would have to hear the next arguement.

This decision really stands to push wildlife management policies in the wrong direction. It begins to place commercial value and landowner ownership over wild animals once in the public domain.

The discussion about Cannonball's method of paying landowners $17/harvested bird seems to fall right into this discussion.

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You are right, I dont know which particular types of cases have been tried. My point was, that if this is allowed to stand, I would say that all states would see immediate cases of people bringing suit over NR issues, whether it be bears in Alaska, moose in Maine, Ducks in SD, or elk in AZ.

Also, if there were a federal challenge available, I cant imagine with all the arguing in SD over the years that someone would have not exhausted the legal possibilities. But I do not know that. Tom

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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.

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Supreme Court refuses comment on hunting

Limited nonresident hunting issue not an issue with court

By Arthur H. Rotstein
Associated Press - Jan. 15, 2003

TUCSON, Ariz. - The state of Arizona says it will attempt to convince a federal judge that its limits on licenses for out-of-state hunters are a legitimate exercise of state power, after the U.S. Supreme Court declined to review a ruling questioning the state rules.

The high court refused without comment to consider Arizona's appeal asking it to reinstate limits on big-game licenses to nonresident hunters.

The 9th U.S. Circuit Court of Appeals in August overturned a lower court decision upholding an Arizona Game and Fish Department regulation. The law had limited nonresidents to 10 percent of the hunting permits, or tags, doled out annually for hunters of bull elk statewide and of antlered deer north of the Colorado River.

The San Francisco-based appellate court ruled that the state's limit was a restriction on interstate commerce. It was the first time a federal appellate court has ruled in favor of nonresident hunters.

U.S. District Judge Robert Broomfield earlier had thrown out a lawsuit brought on behalf of nonresident hunters, determining that hunting is "recreation" and not "a form of interstate commerce."

"It means of course that the 9th's opinion stands and will not be reviewed," said Jay Adkins, an Arizona assistant attorney general, who filed documents with Broomfield's court in defense of the regulation.

The filings attempt to show "that it meets the standards set by the 9th Circuit," Adkins said. "We're proceeding to get a ruling from the District Court as to whether or not Arizona's regulation meets the requirement of the commerce clause" of the Constitution.

"We feel that it is the least discriminatory method by which to protect the state's interest of providing recreational access to its citizens, especially in those few hunts where the 10 percent cap comes into play."

United States Outfitter Inc. and three professional hunters and guides from New Mexico brought the appeal, and their attorney, James Scarantino, will have 15 days to file a reply. Scarantino could not immediately be reached for comment at his home in Albuquerque, N.M.

The Supreme Court has held that the Constitution "denies the states the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce."

In its ruling, the 9th Circuit court said, "The existence of unexercised federal regulatory power does not categorically foreclose state regulation." Arizona, it said, has legitimate interests in regulating hunting to conserve its game population and to maintain recreational opportunities for its citizens.

It returned the case to Broomfield to determine whether Arizona had shown it has no other means to advance its legitimate interests.

"I'm not going to say we're in a hole," Adkins said. "We have to meet the test that they said we have to meet. It's going to be tough, but we think we can do it."
End of article

Forum readers--my thoughts

I wonder if all the current apparent legislative efforts to ban non-residents and regulate the outfitters will go for naught. Even though someone here accused the 9th Circuit of being a bunch of nuts, it looks like the Supreme Court has approved of their ruling. Now the question becomes what can and what can't States do to regulate nonresident hunting (and fishing). I'd like to know how the DNRs (and the ND legislature, and you North Dakotans who are anti NR hunters) will respond to the argument that ducks and geese are migratory, hence subject of federal, not state regulation, and, similarly, that my non-resident federal tax dollars pay for your North Dakota CRP lands which make so many of your pheasants.

My opinion is that the trouble comes, again and again, from the fact that government permits the commercialization of hunting through such things as leasing lands for hunting. This, in my opinion, should be outlawed, and all the hue and cry that is presently in play would subside. After all, it only has arisen because the resident hunters have found their land access hampered because outfitters have leased up the good spots and people are paying to play. Take that away, i.e., the commercialism, and there'd be no efforts to limit nonresident hunting licenses, no efforts to create a preference season for residents, and NO ACCESS ISSUES!!!


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Limiting guides and outfitters would not be affected by this as they would be treated very much like a licence for selling beer and wine would be. On the issue of limiting non residents what it might do is make the states set up a limit on total # of hunters res or nonres. Food for thought

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Interesting post. I don't know what state you're from but I'd bet there are restrictions on NR's from every state of some kind or another. I for one, a ND resident, would love to darkhouse spear in front of my MN lake cottage, or be able to hunt pheasants in SD without time constraints put upon me.

If this decision is allowed to stand it will either kill game management decisions in ND by the game & fish department or many more restrictions will be placed on both resident and NR sportsman.
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