And that is the crux of the entire court case that has been dragging on for a couple years. The reason is the commerce cause comes into play is because the state of AZ allows the sale of wildlfe parts, i.e. antlers, etc. Thus Taulman used this as the reason out-of-state residents are discrimnated against.

Below is a news feature I wrote in Feb. 2003 -- before the case was appealed to the SC, which refused to hear it and thus remanded it back to the 9th Circuit Court. -TONY

Appeal Planned

It all started on Feb. 10, 1998 when Conservation Force, Inc. and several outfitters and guides from New Mexico filed suit in the United States District Court in Arizona against the members of the Arizona Game & Fish Commission who were in office at that time.

The plaintiffs, including United States Outfitters (USO) of Taos, N. Mex., claimed the 10-percent cap on nonresident permits for bull elk (statewide) and for deer north of the Colorado River (North Kaibab) violates the Commerce, Privileges and Immunities and Equal Protection clauses of the U.S. Constitution. They requested “a declaration of invalidity as well as damages.”

When the case eventually came before the federal district court in Arizona, the judge granted the Arizona Game and Fish Department’s (AGFD) cross-motion for summary judgment dismissing the commerce clause claim as a matter of law.
Subsequently, Conservation Force, Inc. dropped out, and the other plaintiffs-- Lawrence Montoya, Filberto Valerio and Carole Jean Taulman, wife of George Taulman who owns USO -- appealed the decision as individuals to take advantage of the commerce law. The case moved to the 9th District Court of Appeals in California.

It was argued and submitted in Dec., 2001. On August 20, 2002, the 9th District Court issued its opinion.
It pointed out that Arizona is home to what is considered by many hunters to be some of the best deer and elk hunting in the world, exemplified by the world-record animals harvested from its lands.

“The quality of the hunting in Arizona is in large part a result of the conservation efforts supported by Arizona citizens and administered by the Arizona Game and Fish Department,” the court files state.

It also states, “In early 1990, the department conducted a poll of resident big-game hunters and found that nearly 75 percent favored restricting the number of hunting tags issued to nonresidents, many expressing the opinion that nonresidents should be excluded from hunting in Arizona entirely”.

For many years, Arizona distributed the limited hunt tags for antlered deer and bull elk through a lottery without regard to the residence of the applicant. In the late 1980s, however, the AGFD began to receive vocal complaints by Arizona hunters objecting to competition with nonresidents. Many felt that nonresidents were getting more than their fair share of the hunt opportunities, especially for premium hunts. To better meet the overwhelming desires of the resident hunting public, in 1991 the game commission amended Rule 12-4-114 of the Arizona Administrative Code. It placed a 10-percent cap on the number of tags that could be awarded to nonresidents for the hunting of bull elk throughout the state and for antlered deer in the area north of the Colorado River.

The AGFD explained that the continued management of Arizona’s big game “is dependent on the continued support of Arizona residents” and that Arizona residents should be afforded the opportunity “to hunt Arizona’s best.”

On the other side of the aisle, the plaintiffs, who are all professional guides who apply for hunting tags around the country for their clients, claimed that profit making is their sole purpose in hunting these animals in Arizona, and that they do not hunt for recreational enjoyment. Instead, they argued that they hunt to “obtain the meat of the animals, their hide, their ivories, and especially their head and rack of antlers to profit from the sale and use of the non-edible parts.”

Judge Raymond C. Fisher of the 9th District Court wrote the following conclusion for the majority opinion:

“We hold that Arizona’s cap on nonresident hunting substantially affects and discriminates against interstate commerce and therefore is subject to strict scrutiny under the dormant Commerce Clause. Arizona has legitimate interests in regulating hunting to conserve its population of game and maintain recreational opportunities for its citizens. We remand for further proceedings to determine whether Arizona has met its burden of showing that it has no other means to advance its legitimate interests.”

In effect, the 9th Circuit Court overturned the Arizona court’s decision, thus finding in favor of the plaintiffs. The rationale behind the decision involved the sale of elk and deer antlers, as allowed under state law in Arizona. In other words, the plaintiffs convinced the appeals court that their purpose for applying for permits was obtaining these antlers to sell and not for the recreational hunting provided.

The decision forced the AGFD to pick one of several options available:

· Dump the nonresident cap
· Outlaw the sale of deer & elk antlers by anyone
· Raise the cost of nonresident permits high enough for a de facto cap
· Appeal the decision to the U. S. Supreme Court

The Arizona Game and Fish Commission voted unanimously last October to choose door #4 – an appeal to the Supreme Court, which will have the option to hear the case and rule or simply decline hearing it altogether.

On almost the same day the game commission voted for the appeal, U.S. Attorney Paul K. Charlton’s office in Phoenix indicted two individuals on charges stemming from an investigation known "Operation Navajo Buck (ONB)." One of them happens to be George Taulman, owner of USO.

Conducted during 1998 and 1999, the ONB investigation led to the arrest and conviction of several big-game guides based in Utah, Arizona, and New Mexico. They unlawfully used aircraft prior to and during hunting seasons to locate deer and elk for hunting clients on the Navajo Indian Reservation in northeast Arizona. As a result, 12 individuals have paid fines of $85,000 and have forfeited one aircraft and unlawfully taken wildlife.

Taulman’s indictment charges him with one felony violation of the Lacey Act, two felony violations of conspiracy to violate the Lacey Act, and two misdemeanor violations of the Airborne Hunting Act.

The felony violation of the Lacey Act alleges one of Taulman’s clients killed an elk with the aid of an aircraft in 1999. The felony conspiracy counts allege that Taulman conspired to use aircraft to aid hunting clients in the taking of elk in Arizona during 1998 and 1999. Taulman’s business, USO, is also under indictment on three felony counts related to the 1998 and 1999 hunts. The indictment also seeks the forfeiture of the outfitter’s Cessna 182 aircraft, which he allegedly used during the hunts.

Another indictment cited David Holton III, of Lake Montezuma, Ariz., who is listed as an employee of USO. He is charged with one felony violation of the Lacey Act, one felony violation of conspiracy to violate the Lacey Act, and one misdemeanor violation of the Airborne Hunting Act. All violations relate to aiding a client with an aircraft so he could kill an elk in 1998 near Payson, Ariz.

The federal Lacey Act makes it unlawful to transport, sell, receive, acquire or purchase wildlife which was taken, transported, possessed, or sold in violation of state, federal, or indian tribal laws or regulations. Violations carry maximum fines of up to $250,000 for a person, $500,000 for a corporation, and up to five years in prison. All vehicles and aircraft used in violation of the Lacey Act are subject to forfeiture.

The federal Airborne Hunting Act makes it unlawful to shoot animals from an aircraft or to harass animals with an aircraft. The Airborne Hunting Act Regulations prohibits a person, while on the ground, from taking or attempting to take wildlife by means, aid, or use of an aircraft. Maximum penalty for violations of the Airborne Hunting Act include fines of up to $100,000 for a person, and $200,000 for a corporation, and one year in prison.