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.

Cal-It's nice to have a smart research assistant for all of us AZ hunters. You did good and it looks like the SC will favor AZ on appeal if they consider the courts previous decisions which they have to. I sure hope we have good enough AG people to get this done and enough clout to force an early decision.

Thanks.

Tags on public land should be priced the same for all U.S. residents. The state does not own the animal. If they did then they should be responsible for all damage caused by animals and for keeping them off the hiways. If it is state land then the stae should manage the seasons and tags. If its federal land then everyone should have the same options.

Geez, here I go and research the topic and post the information and yet it gets ignored.

The state most certainly does "own" the animal. Although as you can read in my earlier post, the term is acknowledged as an "anachronism".

That at least has some validity, as you said "should be". "Should be" and "have to be" are two different things. If they were then in a way the residents would be subsidizing the out of staters.

Appellees argue that the State constitutionally should be able to charge nonresidents, who are not subject to the State's general taxing power, more than it charges it residents, who are subject to that power and who already have contributed to the programs that make elk hunting possible. Appellees also urge that Montana, as a State, has made sacrifices in its economic development, and therefore in its tax base, in order to preserve the elk and other wildlife within the State and that this, too, must be counted, along with actual tax revenues spent, when computing the fair share to be paid by nonresidents. We need not commit ourselves to any particular method of computing the cost to the State of maintaining an environment in which elk can survive in order to find the State's efforts rational, and not invidious, and therefore not violative of the Equal Protection Clause.

A repetitious review of the factual setting is revealing: The resident obviously assists in the production and maintenance of big-game populations through taxes. The same taxes provide support for state parks utilized by sportsmen, Plaintiffs' Exhibit 1; for roads providing access to the hunting areas, Tr. 156-158, 335; for fire suppression to protect the wildlife habitat, id., at 167; for benefits to the habitat effected by the State's Environmental Quality Council, id., at 163-165; for the enforcement of state air and water quality standards, id., at 223-224; for assistance by sheriffs' departments to enforce game laws, Defendants' Exhibit G, p. 13; and for state highway patrol officers who assist wildlife officers at game checking stations and in enforcement of game laws. Forage support by resident ranchers is critical for winter survival. Tr. 46-47, 286. All this is on a continuing basis.

We perceive no duty on the State to have its licensing structure parallel or identical for both residents and nonresidents, or to justify to the penny any cost differential it imposes in a purely recreational, noncommercial, nonlivelihood setting. Rationality is sufficient.

The appellants point to the facts that federal land in Montana provides a significant contribution to the elk habitat, and that substantial apportionments to the State flow from the Federal Aid in Wild Life Restoration Act, 50 Stat. 917, as amended, 16 U.S.C. §§ 669- 669i (1976 ed.). We fail to see how these federal aspects transform a recreational pursuit into a fundamental right protected by the Privileges and Immunities Clause, or how they impose a barrier to resident-nonresident differentials. Congress knows how to impose such a condition on its largess when it wishes to do so.

Think twice before you ask for equal licensing costs for residents and non-residents. This line from the Montana ruling could send a chill up your spine: "On the other side of the same ledger is the great, and almost alarming, increase in the number of nonresident hunters--in the decade of the 1960's, almost eight times the increase in resident hunters." That was in the 60's. Just think of all us Californian's trekking on up to the Dakotas buying hunting leases, blazing away at game, and squeezing you locals out. Trust me, you don't need a bunch of people crazy enough to pay $800,000 for a 3 bedroom house and $60,000 for a monster SUV coming into your state!


This has been an interesting discussion, but I think I joined it late. I suspect most everyone else has tired of the "yes the are, no they aren't" quality of the ownership discussion responses.

A few years back, a group of land owners tried to bring an action against the state for damages to crops and deer damage to cars on the hiways. The state made it very clear that they do not own the wildlife and have no responsibility for thier actions. The only thing they offered to do and did do was set extra seasons on antlerless deer in areas where ghigh crop damage was a proven fact. They made it clear to the land owners that if they did not allow sport hunting on thier land then it was thier own fault as that is the only means by which they can reduce the damage. This issue was a hot one in South Dakota where all land is posted by law. They wanted to charge hunters to hunt thier land then have the state control problem animals. It didn't fly. I attended all the meeting as I am both a hunter and a landowner in that state. It almost came to blows Now is SD it is pretty easy to get permission to hunt if you have doe tags.
We already have the fat cats including Cabelas buying up hunting land for big money and then charging up to 400 dollars a day per gun for Pheasant and goose hunting. Its raised hell with land values and PROPERTY TAXES. I was spoiled by many years of cheap hunting and most people with a little effort could hunt all of North America. Those days are gone and a majority of the hunting public will never have the chance to hunt freely as my generation did. You would have to make a hunting trip like that a priority and save then most likely borrow and max out the credit cards then spend years paying it off. Anyone who can apply and hunt where ever they please are very fortunate indeed. Its something that now takes more than just hard work as many states population like ours would have to fork ouit a year or mores averave wage for a hunt. That don't leave much for everything else.

Another angle to this story.........
The number of hunters in this country is at an all time low. Going lower with each generation. I personally, as a NR (except in bygawd Texas) only wish to get a chance...slim or otherwise. If there are leftovers, as in Colorado, then a chance there too.
It is a fact that hunting has become a "money" intensive endeavor. We can reminisce of days gone by and how one could go and hunt for little or nothing, but no more. Come and gone. My concern is that as the costs go up, the interest from those that follow us dwindles, and game management does it thing.........there may be more tags available than an individual state can sell. Already the case in Colorado.
Here in Texas, we don't have that problem. Hunting is pure capitalism. You either own the land or lease the land or you don't hunt!!! (Very little public land) As for the arguement that the animals belong to the state and therefore the residents.............works in theory..........but what happens when landowners "high fence" their property and those animals become permanent??? Yep, you guessed it........just became private animals with no compensation to the state or it's residents.
So remember that when you are writing you state congressman.

Hey, thats why I love this state.


But actually whitetail deer that are on high fenced ranches are not "private animals" they still techincally belong to the state etc, so all hunting regulations still have to be followed.

Red-AZ is still a place where a teenage kid has just as good a chance of drawing as Bill Gates. No private land tags. A $76 tag for an elk is within anyone's means. We have no shortage of hunters coming up and with new volunteer points we should be able to get more kids involved in the sport. If you are a landowner here you can post and keep people out but you can't sell tags to hunt your property. When you allow landowners to take control of the hunt then greed sets in and you end up like NM and Texas. I have no problem with either state but think that it will take dedication from a lot of good people to preserve Arizonas opportunity and heritage. The smell of money will ruin our sport faster than anything else.

TX....state owned and regulated. But accessable to only those with the keys.
I don't have problem with a landowner doing whatever he wants with his property. But there should be an accurate count of animals entraped and a price paid for animals.
Me......the whole thing has turned me off of deer hunting. Me and my pards now spend our hunting dollars on trips to Co in search of game. For us at least, it is the pleasure is in the "doing", the process, and all this crap about Trophies and high fences and citizens rights just sticks a little too much in my craw. I hate to cast general aspersions, but show me a hunter that is all about trophies and kills.........and I only see a sad person that has no concept of what being in the great outdoors is all about. I feel sorry for them. Don't mean to ruffle feathers, each to his own and more power to them. Just remember that there are others out here that don't share your "greed". The greatest "trophy" hunt I was ever on was the taking of relatively small whitetail doe on our lease here Texas. No high fences, no record book animals involves, at least not by the standards set forth by some group of individuals with initials for names. Watched my hunting partner use his bow to kill his first deer after several failures. He was 12 and my stepson. And that moment was only slightly better than all the failed attempts.
That is why I hunt. It can be a soletary endeavor enjoyed immensely, but the passion when shared is the ultimate. All this other "stuff" only matters when it infringes on that passion.

RRH, I can't speak for Texas and what's going on there. The start of this thread was in response to the lawsuit by USO and other comments made about Western states. As you know since you are an avid hunter in Colorado much of our Western states are still public land. The whole reason why I started this thread was I got sick and tired of out of staters claiming they had as much right to hunt an animal as residents because the animal was on public land. The animal and land ownership are two entirely different things (Speaking about western states, not high fences. Thats a can of worms in itself) Again I'm not against non-resident tags but residents should get a garanteed majority. Public land is funded by federal dollars but game management is funded by state dollars. In my state there are still plenty of hunting opportunities for the non-resident. And like Glen pointed out a 17 year kid has just as much an opportunity to draw as Bill Gates.