Conservation Force, Inc. v. Manning

• Citation: 301 F.3d 985
• Decision Date: 20 August 2002
• Docket Number: No. 00-17394.,No. 00-17082.,00-17082.,00-17394.
• Parties: CONSERVATION FORCE, INC., Plaintiff, and Lawrence Montoya; Filberto Valerio; Carole Jean Taulman, Plaintiffs-Appellants, v. Dennis MANNING, in his official capacity; Michael Golightly, in official capacity; Herb Guenther, in official capacity; William Berlat, in official capacity; M. Jean Hassell, in official capacity; Linda Melker, Defendants-Appellees. Lawrence Montoya; Filberto Valerio; Carole Jean Taulman, Plaintiffs-Appellants, v. Dennis Manning, in his official capacity; Michael Golightly, in official capacity; Herb Guenther, in official capacity; William Berlat, in official capacity; M. Jean Hassell, in official capacity; Linda Melker; Duane R. Shroufe, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

301 F.3d 985

CONSERVATION FORCE, INC., Plaintiff, and Lawrence Montoya; Filberto Valerio; Carole Jean Taulman, Plaintiffs-Appellants, v. Dennis MANNING, in his official capacity; Michael Golightly, in official capacity; Herb Guenther, in official capacity; William Berlat, in official capacity; M. Jean Hassell, in official capacity; Linda Melker, Defendants-Appellees.

Lawrence Montoya; Filberto Valerio; Carole Jean Taulman, Plaintiffs-Appellants, v. Dennis Manning, in his official capacity; Michael Golightly, in official capacity; Herb Guenther, in official capacity; William Berlat, in official capacity; M. Jean Hassell, in official capacity; Linda Melker; Duane R. Shroufe, Defendants-Appellees.

No. 00-17082.

No. 00-17394.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2001.

Filed August 20, 2002.

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James R. Scrantino, Albuquerque, NM, and Sherman Fogel, Fogel and Lamber, Phoenix, AZ, for the plaintiffs-appellants.

Jay R. Adkins, Assistant Attorney General, Phoenix, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-98-00239-RCB.

Before: B. FLETCHER, BOOCHEVER and FISHER, Circuit Judges.

FISHER, Circuit Judge.

This case requires us to determine whether Arizona's 10% cap on nonresident hunting of bull elk throughout the state and of antlered deer north of the Colorado River substantially affects commerce such that the dormant Commerce Clause applies to the regulation. We hold that it does. We further hold that the regulation discriminates against interstate commerce, but that Arizona has legitimate interests in conserving its population of game and maintaining recreational opportunities for its citizens. We remand for further proceedings to determine whether Arizona has met its burden of showing that these interests could not be served adequately by reasonable nondiscriminatory alternatives.

I. BACKGROUND

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 part of Arizona north of the Colorado River, called the "north Kaibab" and "Arizona strip," is a particularly scenic area known for its trophy elk and deer populations and is accordingly a location favored by hunters.

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 Department of Game and Fish ("Department"). The native Merriam elk was extirpated from Arizona in 1898. The present elk population descends from the Wapiti variety introduced to Arizona in 1913. In the case of both deer and elk, the maintenance of the state's herds has been ensured over the years through strict regulation of the number of hunting permits, known as "tags," issued each year.

For many years, Arizona distributed the limited tags made available for antlered deer and bull elk hunting through a lottery without regard to the residency of the applicant.¹ In the late 1980s, however, the Department began to receive "very vocal" complaints by Arizona hunters who "object[ed] to competing with [nonresidents] to a point where they [felt] the nonresidents [were] getting more than their fair share of the opportunity, particularly [of] premium hunts." In early 1990, the Department conducted a poll of resident big game hunters and found that nearly 75% favored restricting the number of hunting tags issued to nonresidents, many expressing the opinion that nonresidents should be excluded from hunting in Arizona entirely.

In response to the pressure from Arizona hunters, the Department in 1991 amended Rule 12-4-114 of the Arizona Administrative Code to place a 10% 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.² The Concise Explanatory Statement ("Statement") accompanying the regulation explained that between 1984 and 1989, the number of nonresidents receiving hunting tags for antlered deer north of the Colorado River ranged between 9% and 19%. It also showed that average nonresident receipt of bull elk tags remained below 6%, but was higher than 10% for some hunts. It explained that "the continued management of Arizona's big game is dependant on the continued support of Arizona residents" and, citing the results of the 1990 survey showing "overwhelming support for a cap on nonresident hunters," stated its objective as giving "Arizona residents ... the opportunity to hunt Arizona's best."

The Statement explained that "10% was chosen to be consistent with other limits on buffalo and bighorn sheep already established" in Arizona. It also stated that "most states have some type of nonresident restriction in hunts for species that are sought after." According to Department officials, the 10% cap was imposed because it is "comparable with systems of limitations that are placed upon [Arizona residents] when they are a nonresident [sic] in another state." Cf. Terk v. Ruch, 655 F.Supp. 205, 207, 210-11 (D.Colo.1987) (upholding 10% cap on nonresident recreational hunting permits for sheep and goat in Colorado and commenting that "[m]ore than twenty states either allocate their licenses unevenly, or completely prohibit nonresidents from hunting certain species").

In addition to the 10% cap, the Department adopted a bonus point system for the tag lottery. Ariz. Admin. Code R12-4-107 (1991). A bonus point is earned for each year in which the applicant purchased an Arizona hunting license and unsuccessfully applied for a tag, with one additional point awarded for the completion of an approved hunter education course. In the tag lottery, hunters indicate their desired hunts and each is assigned a random number by a computer, plus an additional number for each bonus point. The lowest numbers in the pool for each hunt obtain the available tags, with the exception that higher-number-holding residents may bypass lower-number-holding nonresidents once the 10% cap on nonresidents is reached for that hunt. In addition, the first 10% of tags for each hunt are awarded to the applicants with the most bonus points, regardless of the random number drawn. Although there is no nonresident restriction in the award of bonus points, Arizona residents appear to receive the most points and dominate the award of tags in the 10% bonus point set-aside.

Each plaintiff is a professional hunter and guide residing in New Mexico who applies for hunting tags around the country in order 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 nonedible parts. Plaintiffs have applied for Arizona tags to hunt bull elk as well as antlered deer north of the Colorado River for this commercial purpose, but have never received a tag. They intend to continue applying for tags for hunts restricted by the 10% cap. In the hunts between 1997 and 1999 in which the plaintiffs applied for tags, nonresidents constituted between 15% and 51% of the applicants and received between 6% and 10% of the tags.³

Arizona law prohibits the commercial exchange of the edible portions of a harvested animal, but allows the sale of the nonedible portions. There is an interstate and international market for the antlers and hides of deer and elk. Poor quality elk antlers, largely supplied by ranches raising elk for this purpose, are sent to Korea where they are processed into a nutritional supplement. Better quality antlers of elk and deer, almost entirely supplied by hunters, are used for display and for creating art and furniture and can sell for hundreds to thousands of dollars, up to $50,000 for the very best.

Plaintiffs' suit originally claimed that the Arizona regulation violated the Commerce, Privileges and Immunities and Equal Protection Clauses of the U.S. Constitution and requested a declaration of invalidity as well as damages. The district court granted the Department's cross-motion for summary judgment on the Commerce Clause claim. Plaintiffs voluntarily dismissed the remaining counts of their complaint and filed this appeal. We review the grant of summary judgment de novo. See Lite-On Peripherals, Inc. v. Burlington Aire Express, Inc., 255 F.3d 1189, 1192 (9th Cir.2001), cert. denied, 534 U.S. 1129, 122 S.Ct. 1067, 151 L.Ed.2d 970 (2002).

II. DISCUSSION

The Supreme Court's "negative" or "dormant" Commerce Clause jurisprudence is forged from the tension between the Constitution's commitments that our nation be united, free of "conflict[ing] ... commercial regulations, destructive to the harmony of the States," Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 224, 6 L.Ed. 23 (1824) (Johnson, J., concurring), and that it be composed of states, "that without certain residency requirements ... would cease to be the separate political communit[ies] that history and the constitutional text make plain w[ere] contemplated." Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 282 n. 13, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985) (internal quotation marks and citation omitted).

Under the Articles of Confederation, the balance decidedly favored the autonomy of states with the result that "[w]hen victory relieved the Colonies from the pressure for solidarity that war had exerted, a drift toward anarchy and commercial warfare between states began" in which "each state would legislate according to its estimate of its own interests, the importance of its own products, and the local advantages or disadvantages of its position in a political or commercial view." H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533, 69 S.Ct. 657, 93 L.Ed. 865 (1949) (internal quotation marks and citation omitted). The fear that this state of...