Minnesota ex rel. Hatch v. Hoeven

• Decision Date: 03 August 2006
• Docket Number: No. 05-3012.,05-3012.
• Citation: 456 F.3d 826
• Parties: State of MINNESOTA, by its Attorney General, Mike HATCH; Collin Peterson; Starkey Grove; Charles Orvik, Plaintiffs-Appellants, v. John HOEVEN, in his Official Capacity as Governor of the State of North Dakota; Terry Steinwand<SMALL><SUP>1</SUP></SMALL>, in his Official Capacity as Director of the North Dakota Game and Fish Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

456 F.3d 826

State of MINNESOTA, by its Attorney General, Mike HATCH; Collin Peterson; Starkey Grove; Charles Orvik, Plaintiffs-Appellants, v. John HOEVEN, in his Official Capacity as Governor of the State of North Dakota; Terry Steinwand¹, in his Official Capacity as Director of the North Dakota Game and Fish Department, Defendants-Appellees.

No. 05-3012.

United States Court of Appeals, Eighth Circuit.

Submitted: March 24, 2006.

Filed: August 3, 2006.

Ann M. Bildtsen, Assistant Attorney General, argued, St. Paul, MN (Michael J. Vanselow, Deputy Attorney General, on appellant's brief, St. Paul, MN), for appellant.

Dean J. Haas, Assistant Attorney General, argued, Bismarck, ND, for appellee.

Charles D. McGuigan, Assistant Attorney General for the State of South Dakota, filed a amicus brief in support of appellees on behalf of the States of South Dakota, Alaska, Colorado, Kansas, Montana, Nebraska, Nevada, Utah and Wyoming.

Before RILEY, BRIGHT, and SMITH, Circuit Judges.

BRIGHT, Circuit Judge.

North Dakota law drastically restricts hunting privileges of nonresidents as compared to North Dakota residents. Some of those restrictions have come under attack in this lawsuit as invalid under the United States Constitution. Representatives² of the neighboring state of Minnesota (collectively "Minnesota") brought this action against defendants³, officials of the State of North Dakota (collectively "North Dakota"). The district court⁴ rejected the Minnesota claims and granted summary judgment of dismissal in favor of North Dakota. Minnesota appeals. We affirm the judgment but do so in part on grounds other than those relied on by the district court.

I. BACKGROUND

Tourism ranks as the second-largest and fastest-growing industry in North Dakota, contributing about $3 billion each year to the State's economy. The North Dakota Department of Tourism promotes the State's "legendary hunting and fishing" in its website and advertises through national print, radio, and television media.

About 52,000 nonresidents hunted in North Dakota in 2001, roughly thirty-seven percent of its hunters that year. During 2001, nonresident waterfowl hunters took approximately 36,000 trips to North Dakota, spending an estimated 147,000 days there. While in North Dakota for the 2001-2002 season, nonresident waterfowl hunters spent around $21 million in direct expenditures such as food, lodging, and equipment. Nonresident hunters also generated an estimated 1,300 full-time jobs, nearly $2 million in North Dakota tax collections, $79 million in gross business volume, and $45 million in secondary economic effects.

In April 2001, an issue arose in the North Dakota Legislative Assembly between resident hunters who wanted restrictions on the hunting of waterfowl by nonresidents and business people who profit from the patronage of nonresident hunters. The Assembly directed the legislative council to study this issue. The assigned committee reported that the number of nonresident waterfowl hunters had grown from about 5,500 hunters in 1990 to 30,000 hunters in 2001. The committee further reported that resident hunters primarily complained about competition they faced from nonresidents in access to hunting land. "[T]here is only so much good hunting land that is available to be acquired for hunting access." (Appellants' J.A. at 430.) The committee recommended restricting nonresident hunting of waterfowl within North Dakota.

Several restrictions on nonresident hunting followed the study, particularly in the hunting of waterfowl. First, North Dakota excluded nonresidents from hunting during the opening week of waterfowl season in "Amendment One to the 2003-2004 Small Game—Furbearer Proclamation," which has the force of law. See N.D. Cent.Code § 20.1-08-01. Second, North Dakota excluded nonresidents from all hunting, including of waterfowl, during the first week of pheasant season on land owned by the North Dakota Game and Fish Department, private land regulated by the Department for hunting purposes, and land for which the Department provides "in lieu of tax" payments. See N.D. Cent.Code § 20.1-08-04.9 (effective August 1, 2003); Amendment One to the 2003-2004 Small Game—Furbearer Proclamation. Third, North Dakota raised its license fees for nonresidents who must now pay $85 for a waterfowl license (up from $10) and another $85 for a small game⁵ license (up from $75) if they also wish to hunt pheasants and grouse. See N.D. Cent.Code § 20.1-03-12 (amended in 2003). By contrast, residents do not have to buy a separate license to hunt waterfowl together with pheasants and grouse, but must only purchase one small game license costing $6. See id.; N.D. Cent.Code § 20.1-03-03. Finally, even before 2003, North Dakota exempted residents and any member of the resident's family residing with the resident to hunt in season without a license on land they own or lease. See N.D. Cent.Code §§ 20.1-03-03, -04(1).

Minnesota filed this action seeking declaratory judgment and to enjoin these hunting laws to the extent they favor North Dakota residents. Minnesota's amended complaint, filed April 12, 2004, alleged among other things that each of these laws violates the Commerce Clause, Art. I, § 8 of the United States Constitution. Further, Minnesota alleged that N.D. Cent.Code §§ 20.1-03-03, -04(1), permitting residents and any member of the resident's family residing with the resident to hunt in season without a license on land they own or lease, violates the Privileges and Immunities Clause, Art. IV, § 2 of the United States Constitution.

On January 27, 2005, Minnesota filed a motion seeking summary judgment on its Commerce Clause claim. On February 25, 2005, North Dakota filed a cross-motion seeking summary judgment on the merits of Minnesota's claims under the Commerce Clause and Privileges and Immunities Clause.

Further, on May 12, 2005, North Dakota filed a motion to dismiss Minnesota's Commerce Clause claim as moot based on the "Reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act of 2005," Section 6063 of House Bill 1268, approved by the United States Congress and signed into law on May 10, 2005.

On June 8, 2005, the district court denied Minnesota's motion for summary judgment, granted North Dakota's cross-motion for summary judgment, and denied North Dakota's motion to dismiss. Minnesota ex rel. Hatch v. Hoeven, 370 F.Supp.2d 960, 962, 973 (D.N.D.2005). On Minnesota's Commerce Clause claims, the court reasoned that North Dakota does not regulate "persons in commerce" or activity "substantially affect[ing] interstate commerce." Id. at 969, 971. The court considered it "unnecessary to address the merits of North Dakota's Motion to Dismiss other than to note that Congressional interpretation of what is and is not interstate commerce is not controlling on the judicial branch." Id. at 973 (citing United States v. Lopez, 514 U.S. 549, 557 n. 2, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)).

On Minnesota's Privileges and Immunities Clause claim, the court considered "the reasoning of the United States Supreme Court . . . in Baldwin [v. Fish & Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978)] . . . equally applicable to the current dispute," id. at 967, and dismissed this Minnesota contention.

On July 7, 2005, Minnesota filed a notice of appeal "from the final judgment . . . granting Defendants' Motion for Summary Judgment and denying Plaintiffs' Motion for Summary Judgment."⁶

Minnesota on its appeal raises two issues: (1) that North Dakota's waterfowl hunting restrictions violate the dormant Commerce Clause, Art. I, § 8, of the United States Constitution (Appellants' Op. Br. at 25), and (2) North Dakota's authorizing residents to hunt in season on land they own or lease without a license denies nonresident landowners the same use and enjoyment of their property in violation of the Privileges and Immunities Clause, Art. IV, § 2, of the United States Constitution (Appellants' Op. Br. at 16, 20-21).

North Dakota in response rejects the dormant Commerce Clause contentions and separately denies the Privileges and Immunities Clause claim. North Dakota asserts that an enactment by the United States Congress, House Bill 1268, in May 2005, renders the dormant Commerce Clause claim constitutionally moot. North Dakota in this appeal also asserts that Minnesota has waived the Privileges and Immunities Clause claim, and alternatively that Minnesota's claim does not impinge on a privilege or immunity protected by Article IV, Section 2 of the United States Constitution.

In this opinion, we briefly discuss the dormant Commerce Clause issue and determine that United States Congressional action has made Minnesota's contention constitutionally moot. We reach and discuss the Privileges and Immunities Clause and determine its provisions do not provide Minnesota any relief. Thus, we will affirm the judgment of dismissal.

II. DISCUSSION

We review de novo a district court's grant of summary judgment. Donovan v. Harrah's Md. Heights Corp., 289 F.3d 527, 528 (8th Cir.2002). Summary judgment shall be granted "if the pleadings, depositions answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

A. Commerce Clause, Art. I, § 8

Minnesota claims that North Dakota's preference for residents over nonresidents in its hunting laws violates the Commerce Clause, Art. I, § 8, of the United States Constitution. The Commerce Clause provides, "Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. Art. I, § 8.

Although the Commerce Clause reads as an affirmative grant of regulatory power to Congress, the Supreme Court has read into this language a "ne...