McReynolds v. Lane, 12-cv-0097 MCA/WDS

• Decision Date: 27 March 2012
• Docket Number: No. 12-cv-0097 MCA/WDS,12-cv-0097 MCA/WDS
• Parties: TOM MCREYNOLDS, et al., Plaintiffs, v. JIM LANE, in his official capacity as DIRECTOR OF THE NEW MEXICO DEPARTMENT OF GAME AND FISH, Defendant.
• Court: U.S. District Court — District of New Mexico

TOM MCREYNOLDS, et al., Plaintiffs,

v.JIM LANE, in his official capacity as DIRECTOR OF THE NEW MEXICO DEPARTMENT OF GAME AND FISH, Defendant.

No. 12-cv-0097 MCA/WDS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: March 27, 2012

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon Plaintiffs' Motion for a Preliminary Injunction. [Doc. 2] The Court has considered the written submissions of the parties, the evidence presented at the hearing on this motion, the oral arguments and representations of counsel, and the Court's own research and analysis of the law, and is otherwise fully advised. This Memorandum Opinion and Order incorporates and supplements the findings and rulings announced by Court on Thursday, March 22, 2012, at the hearing on Plaintiffs' motion.

Background

Plaintiffs are various individuals and business entities engaged in the business of outfitting and guiding who seek to do business in New Mexico. Defendant is the Director of the New Mexico Department of Game and Fish ("the Department"). Plaintiffs challenge the following statute:

B. Beginning with the licenses issued from a special drawing for a hunt code that commences on or after April 1, 2012:

(1) licenses shall be issued as follows:

(a) ten percent of the licenses to be drawn by nonresidents and residents who will be contracted with a New Mexico outfitter prior to application; and

(b) six percent of the licenses to be drawn by nonresidents who are not required to be contracted with an outfitter; and

(2) a minimum of eighty-four percent of the licenses shall be issued to residents of New Mexico.

. . . .

H. As used in this section, "New Mexico outfitter" means a person who has a business:

(1) with a valid New Mexico state, county or municipal business registration and a valid outfitter license issued by the department of game and fish;

(2) that is authorized to do and is doing outfitting business under the laws of this state;

(3) that has paid property taxes or rent on real property in New Mexico, paid gross receipts taxes and paid at least one other tax administered by the taxation and revenue department in each of the three years immediately preceding the submission of an affidavit to the department of game and fish;

(4) the majority of which is owned by the person who has resided in New Mexico during the three-year period immediately preceding the submission of an affidavit to the department of game and fish;

(5) that employs at least eighty percent of the total personnel of the business who are New Mexico residents;

(6) that has either leased property for ten years or purchased property greater than fifty thousand dollars ($50,000) in value in New Mexico;

(7) that, if it has changed its name from that of a previously certified business, the business is identical in every way to the previously certified business that meets all criteria;

(8) possesses all required federal or state land use permits for the hunt; and(9) that operates as a hunting guide service during which at least two days are accompanied with the client in area where the license is valid.

NMSA 1978, § 17-3-16.

The prior version of § 17-3-16 also included a quota of licenses set aside for hunters guided by New Mexico outfitters:

B. Beginning with the licenses issued from a special drawing for a hunt code on public lands that commences on or after April 1, 1997:

(1) twenty-two percent of the licenses shall be issued to nonresidents divided as follows:

(a) twelve percent of the licenses to be drawn by nonresidents who will be guided by a New Mexico outfitter or guide; and

(b) ten percent of the licenses to be drawn by nonresidents who are not required to be guided by a New Mexico outfitter or guide; and

(2) seventy-eight percent of the licenses shall be issued to residents of New Mexico.

However, prior law did not impose the requirements set out in subsection H. Thus, a nonresident could become a registered New Mexico outfitter and qualify for the percentage of draws set aside for guided hunts simply by satisfying the same requirements demanded of a New Mexico resident seeking to become a registered outfitter. NMSA 1978, § 17-2A-3. According to the Plaintiffs, the additional requirements imposed on nonresident outfitters by subsection H, and more particularly by paragraphs 3-6 of subsection H, have the practical effect of categorically excluding nonresident outfitters from participating in the ten percent of guided hunts set aside by the new version of subsection B(1)(a).

Plaintiffs argue that subsection H violates their rights under the dormant Commerce Clause¹ and the Privileges and Immunities Clause² of the Constitution.

Whether Plaintiffs Have Established Article III Standing

Before proceeding to the merits of Plaintiff's motion, the Court must first satisfy itself that at least one Plaintiff has Article III standing to assert each of Plaintiffs' claims. Utah Assn. of Counties v. Bush, 455 F.3d 1094, 1098-99 (10th Cir. 2006) (discussing constitutional necessity of standing analysis); American Civil Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313, 1319 (10th Cir. 2008) (citing Crawford v. Marion County Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) for proposition that where only injunctive relief is sought, only one plaintiff must demonstrate standing); Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007) (observing that plaintiffs must have standing to seek "each form of relief in each claim"). To satisfy the requirement of standing "a plaintiff must establish three elements: an injury-in-fact, causation, and redressability." Bronson, 500 F.3d at 1106.

Clearly, imminent economic injury may suffice to establish injury-in-fact for standing purposes. Sac and Fox Nation of Missouri v. Pierce, 213 F.3d 566, 573 (10th Cir. 2000). The inability to pursue a common calling as the result of state action can constitute the requisite injury-in-fact for purposes of either the dormant Commerce Clause, Conservation Force, Inc. v. Manning, 301 F.3d 985 (9th Cir. 2002), or the Privileges and Immunities Clause, McBurney v. Cuccinelli, II, 616 F.3d 393, 404 (4th Cir. 2010). The denial of a nonresident's right to dobusiness on the substantially equal terms with residents can constitute an injury-in-fact for purposes of standing. Council of Ins. Agents and Brokers v. Molasky-Arman, 522 F.3d 925, 932-33 (9th Cir. 2008) (upholding standing to assert claim under Privileges and Immunities Clause); see also Schutz v. Thorne, 415 F.3d 1128 (10th Cir. 2005) (upholding standing to assert claim under Equal Protection Clause).

The Court finds that testimony of Tom McReynolds establishes that his company, Black Mountain Outfitters, Inc., has suffered injury-in-fact, i.e. economic loss, as the result of the inability to compete with resident outfitters for clients interested in subsection B(1)(a) draw hunts. The testimony of Jody Tapia, d/b/a/ Bucks-N-Bulls Outfitters, establishes that he has suffered an injury-in-fact, i.e. economic loss, as the result of the inability to compete with resident outfitters for clients interested in subsection B(1)(a) draw hunts. Alternately, the Court finds that Plaintiffs have suffered an injury-in-fact by being unlawfully discriminated against on the basis of nonresidence.

The Court further finds based upon the testimony Tom McReynolds and Jody Tapia, that Black Mountain Outfitters, Inc., and Jody Tapia are otherwise qualified to engage in the business of outfitting in New Mexico, have had willing and able clients in the past, and would have had a reasonable expectation of having willing and able clients for 2012 but for the enactment of subsection H, ¶¶ (3) through (6). The Court finds that the enactment of subsection H, ¶¶ (3) through (6), is the cause of Plaintiffs' injury-in-fact.

Lastly, the Court finds that the injury to Plaintiffs is redressable by an injunction restraining Defendant from applying subsection H, ¶¶ (3) through (6), to Plaintiffs.

Plaintiffs have satisfied the requirements of Article III standing.

Whether Plaintiffs are Entitled to a Preliminary Injunction

Counsel for Plaintiff conceded at the hearing on Plaintiffs' motion that Plaintiffs are requesting a mandatory injunction. The standards governing a mandatory preliminary injunction are as follows:

To obtain a preliminary injunction, the moving party must demonstrate: "(1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest." [The Tenth Circuit Court of Appeals] consider[s] a preliminary injunction to be an extraordinary remedy, and has caution[ed] courts against granting injunctions that alter the status quo or that require the "nonmoving party to take affirmative action-a mandatory preliminary injunction-before a trial on the merits occurs." Because mandatory preliminary injunctions are disfavored, before a district court may grant such relief, the movant must make a heightened showing of the above four factors. . . .

Att'y Gen. of the State of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir.2009) (citations omitted).³

Defendant argues that relief under the dormant Commerce Clause is barred by the Reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act, P.L. 109-52, § 6063 (the "2005 Act"). The 2005 Act states:

(b) Declaration of Policy and Construction of Congressional Silence-

(1) IN GENERAL.-It is the policy of Congress that it is in the public interest for each State to continue to regulate the taking for any purpose of fish and wildlife within its boundaries, including by means of laws or regulations that differentiate between residents and nonresidents of such State with respect to the availability of licenses or permits for taking of particular species of fish or wildlife, the kind and numbers of fish and wildlife that may be

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