O'Brien v. State

• Decision Date: 13 January 1986
• Docket Number: No. 85-112,85-112
• Citation: 711 P.2d 1144
• Parties: Keiran W. O'BRIEN, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1144

711 P.2d 1144

54 USLW 2398

Keiran W. O'BRIEN, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 85-112.

Supreme Court of Wyoming.

Jan. 13, 1986.

Ernest F. Fuller, Jr. of Bormuth, Freeman & Fuller, Cody, and Michael K. Davis of Redle, Yonkee & Arney, Sheridan, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John Renneisen, Sr. Asst. Atty. Gen., Marion Yoder, Asst. Atty. Gen., and Cheryl Solon, Legal Intern, for appellee.

Timothy J. Kirven and Felecia A. Rotellini, Legal Intern, of Kirven & Kirven, Buffalo, for amicus curiae Wyoming Outfitters Ass'n.

Before THOMAS, C.J., and ROONEY, ^* BROWN and CARDINE, JJ., and RAPER, J., Retired.

RAPER, Justice, Retired.

Keiran W. O'Brien (appellant) was convicted, and fined $100 by a justice of the peace for Park County, on January 18, 1984, of hunting in a federal wilderness area unaccompanied by a licensed professional guide or resident guide, in violation of W.S. 23-2-401(a) and (b). ¹ On appeal to the district court, Park County, Fifth Judicial District, sitting as an appellate court, the conviction was affirmed after the district judge had given the matter his close attention and thoughtful consideration as reflected in a comprehensively written opinion. Appellant appeals from the order of affirmance.

The issues advanced by the appellant are:

"I.

"Does Wyoming Statute Section 23-2-401(a), requiring nonresident big game hunters who hunt in federal wilderness areas to employ guides violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?

"II.

"Does Wyoming Statute Section 23-3-401(a) violate the Privileges and Immunities Clauses of the United States Constitutions [sic]?

"III.

"Does Wyoming Statute Section 23-2-401(a) violate the Supremacy Clause of the United States Constitution because it conflicts with the purposes of the National Wilderness Preservation System Act and federal regulations thereunder?"

We will affirm the decision of the district court and appellant's conviction.

Appellant, at the time of his citation on September 28, 1983, was a 46-year-old Minnesota resident having in his possession a valid "Wyoming Non-Resident Elk and Fishing Privilege" license. He and his brothers had set up two hunting camps in the Park County section of the Teton wilderness area of the Teton National Forest. At the time of his citation at one of the campsites, and at the trial, appellant admitted he had been hunting elk in the federal wilderness area without a licensed guide. He knew at that time that Wyoming law required him to have such a guide when hunting big game animals in a wilderness area. Elk are big game animals. W.S. 23-1-101(a)(i).

Appellant further admitted that he had hunted in the Wyoming wilderness from 1980 to 1983 intentionally without a guide because he felt the guide requirement was unconstitutional. He was an experienced hunter, familiar with the wilderness area in which he was hunting having been there on a ten or eleven-day camping trip with a Wyoming resident friend living in that area. In 1980 he had hunted for two weeks 20 to 30 miles from the area he was hunting when he was issued the citation. He also testified at the trial that to hire a guide would cost between $1,500 and $2,000 for a ten-day trip.

In Schakel v. State, Wyo., 513 P.2d 412 (1973), this Court declared unconstitutional the predecessor statute to the one under which appellant was convicted and which we now consider. Since that time the amended version of W.S. 23-54 (1957), now W.S. 23-2-401, supra note 1, has been in effect. These two developments cast a different light on the problem and lead to a different conclusion than Schakel. The state in Schakel pointed out that W.S. 23-54 (1957) had been repealed in its entirety and replaced, but this Court properly refused to then consider the new statute as applicable. In addition, the United States Supreme Court in Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), has held that recreational hunting is not a fundamental right protected by the Privileges and Immunities Clause of the United States Constitution. We therefore write on a clean slate, though some principles of law enunciated in Schakel remain viable. It may appear that different views are now present. If so, such differences can be attributed to discoveries in the field of law unearthed by Baldwin, as well as the statutory amendment. The recent case of Powell v. Daily, Wyo., 712 P.2d 356 (1986), involves an entirely different question, i.e., the resident requirement for a professional guide, so we will do no more than distinguish it later in this opinion.

In considering a constitutional attack on a statute, basic principles must be kept in mind. There is a presumption of constitutionality, and the burden is on the attacker to show unconstitutionality beyond a reasonable doubt. Bell v. State, Wyo., 693 P.2d 769 (1985). Reasonable doubts as to constitutionality are resolved by upholding the statute, if possible. Armijo v. State, Wyo., 678 P.2d 864 (1984).

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution has a parallel in Art. 1, § 34 of the Wyoming Constitution. ² This Court has held those respective provisions are equivalents. Washakie County School District Number One v. Herschler, Wyo., 606 P.2d 310, cert. denied 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980). Therefore, our holding on the equal protection question herein shall be under both the United States and Wyoming Constitutions.

I

There are two tests designed to determine if statutory classifications meet equal protection requirements. The first is employed where the interest affected is an ordinary one and the second where a fundamental interest is at issue. When an ordinary interest is involved, then a court merely examines to determine if there is a rational relationship between a classification made by the statute or statutes being viewed and a legitimate legislative state objective. In other words, if the court perceives that the legislature had some arguable basis for choosing the end and the means, it will sustain the law. Cheyenne Airport Board v. Rogers, Wyo., 707 P.2d 717 (1985). When a fundamental interest is affected or if a classification is inherently suspect, then the classification must be subjected to close scrutiny to determine if it is necessary to achieve a compelling state interest. The latter test requires that the state establish that there is no less onerous alternative by which its objective may be achieved. Washakie County School District Number One v. Herschler, supra.

Baldwin settles the matter of whether the right to hunt is a fundamental right in relation to the Privileges and Immunities Clause ³ of the United States Constitution:

"Does the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause? * * * Elk hunting by nonresidents in Montana is a recreation and a sport. In itself--wholly apart from license fees--it is costly and obviously available only to the wealthy nonresident or to the one so taken with the sport that he sacrifices other values in order to indulge in it and to enjoy what it offers. It is not a means to the nonresident's livelihood. The mastery of the animal and the trophy are the ends that are sought; appellants are not totally excluded from these. The elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved.

"Appellants' interest in sharing this limited resource on more equal terms with Montana residents simply does not fall within the purview of the Privileges and Immunities Clause. Equality in access to Montana elk is not basic to the maintenance or well-being of the Union. Appellants do not--and cannot--contend that they are deprived of a means of a livelihood by the system or of access to any part of the State to which they may seek to travel. We do not decide the full range of activities that are sufficiently basic to the livelihood of the Nation that the States may not interfere with a nonresident's participation therein without similarly interfering with a resident's participation. Whatever rights or activities may be 'fundamental' under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by nonresidents in Montana is not one of them." 98 S.Ct. at 1862-1863.

We consider all of the observations of the Supreme Court of the United States applicable in Wyoming, as well.

Since elk hunting is a sport and not a fundamental right, we then need only apply the less rigorous test applied to an ordinary right, and we need only examine to determine if there is a rational relationship between the classification made by the statute or statutes being viewed and a legitimate state objective. The statutory classification we are here viewing is that nonresidents, in addition to having a Wyoming nonresident hunting license, must, when hunting big and/or trophy game animals ⁴ on any designated wilderness area in Wyoming as defined by federal law, be accompanied by a licensed professional or resident guide. W.S. 23-2-401, supra note 1. No such requirement is placed on resident hunters. The question is then whether there is a rational relationship between that classification between nonresidents and residents and a legitimate legislative state objective.

By W.S. 23-1-103, all wildlife ⁵ in Wyoming is declared to be the property of the state, and the purpose of the act (W.S. 23-1-101 through 23-6-207 as amended from time to time) and the policy of the state are to provide an adequate and flexible system for the control, propagation, management and regulation of all Wyoming wildlife.

The declaration of ownership and...