GleninAZ - I certainly hope that Arizona takes this on up to the Supreme Court. Rulings coming out of the 9th District are overturned more often than any other district court. That alone tells you something about their misguided judgement process.

I got curious and made my best attempt to read through the Supreme Court's ruling on Baldwin v. Fish and Game Commission of Montana. Certainly there's been 26 years of other rulings and I certainly ain't no lawyer, but there are a few findings there that give cause for hope.

More from the Supreme Court:

FN11. The District Court concluded: "The elk is not and never will be hunted commercially." 417 F.Supp., at 1007. Appellants do not deny that the activity which they wish to pursue is pure sport. The hunter is entitled to take only one elk per year, Montana Department of Fish and Game, Deer, Elk, Bear, and Mountain Lion Regulations, Feb. 27, 1977, and statutory restrictions are placed on the buying and selling of game animals, or parts thereof, taken in Montana. Mont.Rev.Codes Ann. § 26- 806 (1967)

FN14 (some portion omitted) We conclude that where the opportunity to enjoy a recreational activity is created or supported by a state, where there is no nexus between the activity and any fundamental right, and where by its very nature the activity can be enjoyed by only a portion of those who would enjoy it, a state may prefer its residents over the residents of other states, or condition the enjoyment of the nonresident upon such terms as it sees fit." Id., at 1010.


All of the remaining quotes are from the recent Montoya v. Shroufe ruling.

Now, reading some of the findings of the 9th District in its ruling, Next, the Ninth Circuit determined that the Rule overtly discriminates against nonresidents, since it restricts access to Arizona's hunting resources based soley on the applicant's residence.

And later...

The Nine Circuit did not "foreclose the possibility that the goal of ensuring a state's citizens' access to recreational opportunities may justify limited consideration of residency in the allocation of hunting tags in some curcumstances." This court's inquire on remand is whether the Rule is the "least discriminatory alternative" to serve Arizona's legitimate interests.

From a very simple layman's viewpoint, the Supreme Court has already stated that this is acceptable. The ruling goes on to say that Arizona is violating the Commerce Clause, but appears to mix in a "everyone is equal" arguement regarding residents and non-residents. They almost appear to give the concept that Arizona could favor its own residents a smile and back-hand slap at the same time. They acknowledge that Arizona has a legitimate right to manage the game, but give very limited acknowledgement to the thought that Arizona could take residency into account. In this regard the Supreme Court ruling doesn't seem all that ambiguous and the Ninth Circuit's logic appears to be in error.

I understand that USO really leveraged the Commerce Clause to get this ruling. From reading the Supreme Court's decision it appears that they considered the fact that Montana restricted the sale of animal parts, unlike Arizona. It also seems as if the Ninth District is making new law by taking the Commerce Clause off into new (to me) territory.

The Ninth Curcuit held that the Rule substantially affects interstate commerce (and thus, that the Commerce Clause applies) for two reasons. First, hunting in Arizona substantially affects the interstate flow of hunters who travel to the state to participate in hunts subject to the 10% nonresident caps. Second, Arizona hunting substantially affects the interstate flow of goods through the channels of commerce since Arizona allows the nonedible portions of bull elk and antlered deer taken from its lands to be sold in interstate and international markets.

The second part has already been discussed. But the first part seems pure nonsense. That would mean that anytime someone gets into their car and drives to another state they're committing interstate commerce. By that logic no state should be able to differentiate resident from non-resident on pretty much anything. Seems that the Supreme Court has already said that ain't so.

Anyway, I sure hope that Arizona pursues this upwards and the Ninth Circuit gets another helping of crow in the near future.