436 U.S. 371 (1978), 76-1150, Baldwin v. Fish and Game Commission of Montana

Docket Nº:No. 76-1150
Citation:436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354
Party Name:Baldwin v. Fish and Game Commission of Montana
Case Date:May 23, 1978
Court:United States Supreme Court

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436 U.S. 371 (1978)

98 S.Ct. 1852, 56 L.Ed.2d 354



Fish and Game Commission of Montana

No. 76-1150

United States Supreme Court

May 23, 1978

Argued October 5, 1977




Appellants brought this action for declaratory and other relief claiming that the Montana statutory elk hunting license scheme, which imposes substantially higher (at least 7 1/2 times) license fees on nonresidents of the State than on residents, and which requires nonresidents (but not residents) to purchase a "combination" license in order to be able to obtain a single elk, denies nonresidents their constitutional rights guaranteed by the Privileges and Immunities Clause of Art. IV, § 2, and by the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court denied all relief to appellants.


1. Access by nonresidents to recreational big game hunting in Montana does not fall within the category of rights protected by the Privileges and Immunities Clause. Only with respect to those "privileges" and "immunities" bearing upon the vitality of the Nation as a single entity must a State treat all citizens, resident and nonresident, equally, and here equality in access to Montana elk is not basic to the maintenance or wellbeing of the Union. Pp. 378-388.

2. The statutory scheme is an economic means not unreasonably related to the preservation of a finite resource, elk, and a substantial regulatory interest of that State, and hence does not violate the Equal Protection Clause. In view of the fact that residents contribute to the costs of maintaining the elk hunting program, the great increase in nonresident hunters in recent years, the limit in the elk supply, and the difficulties in supervising hunting practices, it cannot be said that either the license fee differentials or the required combination license for nonresidents is irrational. Pp. 388-391.

417 F.Supp. 1005, affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, POWELL, REHNQUIST, and STEVENS, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 392. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 394.

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BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This case presents issues, under the Privileges and Immunities Clause of the Constitution's Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment, as to the constitutional validity of disparities, as between residents and nonresidents, in a State's hunting license system.


Appellant Lester Baldwin is a Montana resident. He also is an outfitter holding a state license as a hunting guide. The majority of his customers are nonresidents who come to Montana to hunt elk and other big game. Appellants Carlson, Huseby, Lee, and Moris are residents of Minnesota.1 They have hunted big game, particularly [98 S.Ct. 1855] elk, in Montana in past years, and wish to continue to do so.

In 1975, the five appellants, disturbed by the difference in the kinds of Montana elk hunting licenses available to nonresidents, as contrasted with those available to residents of the State, and by the difference in the fees the nonresident and the resident must pay for their respective licenses, instituted the present federal suit for declaratory and injunctive relief and for reimbursement, in part, of fees already paid. App. 18-29. The defendants were the Fish and Game Commission of the State of Montana, the Commission's director, and its five commissioners.

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The complaint challenged the Montana elk hunting licensing scheme specifically, and asserted that, as applied to nonresidents, it violated the Constitution's Privileges and Immunities Clause, Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court was convened and, by a divided vote, entered judgment denying all relief to the plaintiff-appellants. Montana Outfitters Action Group v. Fish & Game Comm'n, 417 F.Supp. 1005 (Mont.1976). We noted probable jurisdiction. 429 U.S. 189 (1977).2


The relevant facts ar not in any real controversy, and many of them are agreed:

A. For the 1975 hunting season, a Montana resident could purchase a license solely for elk for $4. The nonresident, however, in order to hunt elk, was required to purchase a combination license at a cost of $151; this entitled him to take one elk and two deer.3

For the 1976 season, the Montana resident could purchase a license solely for elk for $9. The nonresident, in order to hunt elk, was required to purchase a combination license at a cost of $225;4 this entitled him to take one elk, one deer, one black bear, and game birds, and to fish with hook and line.5 A

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resident was hot required to buy any combination of licenses, but if he did, the cost to him of all the privileges granted by the nonresident combination license was $30.6 The nonresident thus paid 7 1/2 times as much as the resident, and if the nonresident wished to hunt only elk, he paid 25 times as much as the resident.7

B. Montana, with an area of more than 147,000 square miles, is our fourth largest State. Only Alaska, Texas, and California, in that order, are larger. But its population is relatively small; in 1972, it was approximately 716,000.8 Its 1974 per capita income was 34th among the 50 States. App. 56-57.

Montana maintains significant populations of big game, including elk, deer, and [98 S.Ct. 1856] antelope. Tr.191. Its elk population is one of the largest in the United States. Elk are prized by big game hunters, who come from near and far to pursue the animals for sport.9 The quest for big game has grown in

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popularity. During the 10-year period from 1960 to 1970, licenses issued by Montana increased by approximately 67% for residents and by approximately 530% for nonresidents.10 App. 56-57.

Owing to its successful management programs for elk, the State has not been compelled to limit the overall number of hunters by means of drawings or lotteries as have other States with harvestable elk populations. Tr. 243. Elk are not hunted commercially in Montana.11 Nonresident hunters seek the animal for its trophy value; the trophy is the distinctive set of antlers. The interest of resident hunters more often may be in the meat. Id. at 245. Elk are now found in the mountainous regions of western Montana, and are generally

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not encountered in the eastern two-thirds of the State, where the plains prevail. Id. at 9-10, 249. During the summer, the animals move to higher elevations and lands that are largely federally owned. In the late fall, they move down to lower privately owned lands that provide the winter habitat necessary to their survival. During the critical mid-winter period, elk are often supported by ranchers. Id. at 447, 191, 285-286.12

Elk management is expensive. In regions of the State with significant elk population, more personnel time of the Fish and Game Commission is spent on elk than on any other species of big game. Defendant's Exhibit A, p. 9.

Montana has more than 400 outfitters who equip and guide hunting parties. Tr. 295. These outfitters are regulated and licensed by the State, and provide services to hunters and fishermen. It is estimated that as many as half the nonresidents who hunt elk in western Montana utilize outfitters. Id. at 248. Three outfitter witnesses testified that virtually all their clients were nonresidents. Id. at 141, 281, 307.

The State has a force of 70 game wardens. Each warden district covers approximately 2,100 square miles. Id. at 234. To assist wardens in law enforcement, Montana has an "equal responsibility" statute. [98 S.Ct. 1857] Mont.Rev.Codes Ann. § 26-906 (Supp. 1977). This law makes outfitters and guides equally responsible for unreported game law violations committed by persons in their hunting parties. The outfitter thus, in a sense, is a surrogate warden, and serves to bolster the State's warden force.


In the District Court, the majority observed that the elk once was a plains animal, but now roams the mountains of

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central and western Montana. About 75% of the elk taken are killed on federal land. The animal's preservation depends upon conservation. 417 F.Supp. at 1007. The majority noted that the appellants conceded that Montana constitutionally may charge nonresidents more for hunting privileges than residents. Id. at 1007-1008.13 It concluded, however, that, on the evidence presented, the 7 1/2-to-1 ratio in favor of the resident cannot be justified on any basis of cost allocation. Id. at 1008.

After satisfying itself as to standing14 and as to the existence of a justiciable controversy, and after passing comment upon the somewhat controversial subject of wild animal legal ownership, the court concluded that the State

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.

Id. at 1009. In reaching this result, the majority examined the nature of the rights asserted by the plaintiffs. It observed that there were just too many people and too few elk to enable everyone to hunt the animals. "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." Ibid. Various means of limitation were mentioned, as was the fact that any one control device might deprive a particular hunter of any possibility of hunting elk. The right asserted by the appellants was "no more than a chance to engage temporarily in a...

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