417 F.Supp. 1005 (D.Mont. 1976), CV 75-80, Montana Outfitters Action Group v. Fish and Game Commission of State of Montana

Docket Nº:CV 75-80-BU.
Citation:417 F.Supp. 1005
Case Date:August 12, 1976
Court:United States District Courts, 9th Circuit, District of Montana

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417 F.Supp. 1005 (D.Mont. 1976)




No. CV 75-80-BU.

United States District Court, D. Montana, Butte Division.

Aug. 12, 1976

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[Copyrighted Material Omitted]

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James H. Goetz, Bozeman, Mont., for plaintiffs.

Robert Woodahl, Atty. Gen., State of Mont., Clayton Herron, Sp. Asst. Atty. Gen., Helena, Mont., for defendants.


Before BROWNING, Circuit Judge, and SMITH and JAMESON, District Judges.


This case is about elk and the rights of nonresidents to hunt them. 1 The elk, once a plains animal, now lives in the mountains in central and western Montana. The elk is migratory in the sense that it moves from the summer range to the winter range and back, and when this sort of migration occurs near the borders of Montana, the elk drift to and from Montana, Idaho, Wyoming, and Canada. The summer range is in the mountains, and a significant part of it is federally owned. The winter range is in the foothills and valleys, a significant part of which is in private ownership. About 75% of the elk killed are killed on federal lands. The elk is not and never will be hunted commercially. It is an animal much sought for its trophy value, and nonresident hunters are as a group more interested in the trophy than are the resident hunters as a group. In recent years there has been an increase in the number of hunters and a disproportionate increase in the number of nonresident hunters. In the years between 1960 and 1970 there was an increase of 536% in nonresident hunting as compared with an increase of 67% in resident hunting. 2 The preservation of the elk depends upon conservation.

R.C.M.1947 s 26-202.1(12) provides for a nonresident big game combination license and fixes the fee therefor. A nonresident may not hunt elk without the combination license. The license fee for the 1976 hunting season will be $225.00, and for that fee the nonresident is permitted to take one elk, one deer, one black beer, upland birds, and fish. A resident 3 will be able to hunt elk in 1976 by the payment of $8.00 for an elk tag 4 and $1.00 for a conservation license. 5

While a resident is not required to buy any combination of licenses, the cost to him of all of the privileges granted by the nonresident combination license would be $30.00. 6 The ratio is therefore, 7.5 to 1 in favor of the resident. The claim is that these licensing provisions are discriminatory and in violation of the privileges and immunities clause (art. IV, s 2) and the equal protection and due process clauses (amend. XIV) of the United States Constitution. Plaintiffs concede that the State may constitutionally charge nonresidents more for hunting and fishing privileges than residents

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because residents, through taxes other than hunting and fishing license fees, contribute to the wildlife management program, but urge that the degree of the disparity cannot be justified on a cost basis. While no records are kept which precisely disclose the direct and indirect costs which properly may be apportioned between residents and nonresidents, the plaintiffs did offer the opinion evidence of an economist to the effect that a ratio of no more than 2.5 to 1 can be justified cost-wise. On a consideration of that evidence, the State's evidence opposing it, and with due regard to the presumption of constitutionality, we find that the ratio of 7.5 to 1 cannot be justified on any basis of cost allocation. 7

Defendants challenge the plaintiffs' standing. The plaintiffs Moris and Lee are nonresidents who have hunted for elk in Montana in the past and who want to hunt in Montana in the future. They are obviously adversely affected by an increase in nonresident license fees and have standing to maintain this action. The economic interests of Moris and Lee are affected, and that it is sufficient. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Since all issues are presented by Moris and Lee, we do not pass upon the standing of the remaining plaintiffs. 8

Defendants suggest that there is no justiciable controversy because the law governing the 1976 hunting season will not be effective until July 1, 1976; the 1975 hunting season is over, and the law governing it cannot affect the plaintiffs. 9 The problems here raised are those which are " 'capable of repetition, yet evading review.' " Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973). Had plaintiffs waited until July 1, 1976, to commence this action, it is unlikely that a resolution at this court level would be obtained until the 1976 hunting season was over. Absent a repeal of the challenged law, unlikely since the Montana legislature will not meet until January 1977, the plaintiffs will be affected by the present law, and there is now a controversy. We hold the controversy to be justiciable.

The State argues with some support in the authorities that the State owns the animals in their wild state in trust for the beneficial use of the citizens of the State, and that the State may do what it will with its own property. 10 The plaintiffs contend with some support in the authorities that "(t)he whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of

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an important resource." 11 We do not here choose between the theories advanced. The State under either theory has the power to manage and conserve the elk, and to that end to make such laws and regulations as are necessary to protect and preserve it.

Whether, in that management, a discrimination between residents and nonresidents is permissible requires an examination of the claimed right, the State purpose involved, and the justifications for the discrimination.

We turn to the nature of the right asserted by the plaintiffs in this case. Not everyone may hunt elk. There are too many people and too few elk. If the elk is to survive as a species, the game herds must be managed, and a vital part of the management is the limitation of the annual kill. That limitation may be accomplished in many ways, but all of them involve in some degree a limitation upon hunter days. 12 The hunter days may be controlled by pricing the license, by conducting lotteries, by limiting the length of the seasons, and by restricting the area of the hunt. Any controlling device, by reason of its effect upon the life circumstances of a potential hunter, may deprive that hunter of any possibility of hunting elk.

Whatever word may be used to describe plaintiffs' asserted rights right, privilege, chance the asserted right is recreational in character, 13 and except for a few residents who live in exactly the right place, is expensive recreation. Critically examined, the right asserted here is, therefore, no more than a chance to engage temporarily in a recreational activity in a sister state, and even the chance is dependent upon the willingness of the people of the sister State to manage the subject matter of the recreation the elk. The asserted right is not fundamental 14 and is not protected as a privilege and immunity by art. IV, s 2 of the United States Constitution. United States v. Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270 (1920); Canadian Northern Ry. v. Eggen, 252 U.S. 553, 40 S.Ct. 402, 64 L.Ed. 713 (1920); and Blake v. McClung, 172 U.S. 239, 19 S.Ct. 165, 43 L.Ed. 432 (1898).

We cannot ignore the nature of the right involved in treating the equal protection problem. If the needs for education at the primary level 15 and at the college level 16 do not create the fundamental sort of rights which have constitutional protection under the equal protection clause, then certainly the asserted right in this case does not have a constitutional basis and is not fundamental for equal protection purposes. There is simply no nexus between the right to hunt for sport and the right to speak, the right to vote, the right to travel, the right to pursue a calling. We are not, therefore, required to scrutinize the discrimination

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strictly but only to determine whether the system bears some rational relationship to legitimate State purposes. 17

The State purpose is to restrict the number of hunter days. Any regulatory system which imposes a license fee in some sense discriminates against those who can't afford to pay it. As the fee increases, the discrimination increases. A regulatory scheme based upon a pure lottery in which a limited number of hunters were chosen would be discrimination-free, but a legislature might with some rationality 18 conclude that a pure lottery open to all potential elk hunters in the United States might destroy the political motivation to Montana citizens to underwrite the elk management program in the absence of which the species would disappear. 19

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. 20

IT IS THEREFORE ORDERED that judgment be entered denying plaintiffs all relief.

BROWNING, Circuit Judge (dissenting):

The majority recognizes that the "ownership theory" espoused in early Supreme Court opinions is denigrated in more recent pronouncements. See Toomer v. Witsell, 334 U.S. 385, 402, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). Also in disrepute is the "special public interest" theory occasionally advanced to justify state discrimination in favor of its own citizens in matters...

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