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Nonresident lawsuit in Arizona

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N.D. joins nonresident hunting battle
By Janell Cole
[email protected]
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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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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