Mescalero Apache Tribe v. State of N. M.
| Decision Date | 13 August 1980 |
| Docket Number | No. 78-1790,78-1790 |
| Citation | 630 F.2d 724 |
| Parties | MESCALERO APACHE TRIBE, Plaintiff-Appellee, v. STATE OF NEW MEXICO and William S. Huey, Individually and as Director of New Mexico Department of Game and Fish, or his Successors in Office, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jeff Bingaman, Atty. Gen. and Thomas L. Dunigan, Deputy Atty. Gen., Santa Fe, N. M. (Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, N. M., with them on briefs), for defendants-appellants.
George E. Fettinger, Alamogordo, N. M. (Kim Jerome Gottschalk, Santa Fe, N. M., with him on brief), Fettinger & Bloom, Alamogordo, N. M., for plaintiff-appellee.
Steven E. Carroll, Atty., Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Robert L. Klarquist and Edward J. Shawaker, Attys., Dept. of Justice, Washington, D. C., on brief), for the United States as amicus curiae.
Paul A. Lenzini and Susan A. Glotz, Attys., Chapman, Duff & Paul, Washington, D. C., filed an amicus curiae brief for the Intern. Ass'n of Fish and Wildlife Agencies.
Daniel H. Israel, Native American Rights Fund, Boulder, Colo., Robert J. Nordhaus and Adelia W. Kearny, Nordhaus, Moses & Dunn, Albuquerque, N. M., filed an amicus curiae brief for the Jicarilla Apache Tribe.
Robert B. Hansen, Utah Atty. Gen., Richard L. Dewsnup and Dallin W. Jensen, Asst. Attys. Gen., Salt Lake City, Utah, filed an amicus curiae brief for the State of Utah.
Before DOYLE, BREITENSTEIN and McKAY, Circuit Judges.
This case involves a challenge to the State of New Mexico's attempt to regulate the management and harvesting of wildlife resources within the boundaries of the Mescalero Apache reservation. The Tribe carried its challenge to the district court where it secured a judgment declaring that the State may not apply its hunting and fishing laws to any person, Indian or non-Indian, within the boundaries of the tribal reservation. The court also enjoined the State from enforcing its game laws "against any person either on the Reservation or after they (sic) have left the Reservation for acts done on the Reservation." Record, vol. 1, at 221. The State concedes its lack of jurisdiction over tribal members on the reservation, but appeals the district court's resolution as to non-members of the Tribe. 1
In 1977 the Tribe, as part of "an extensive tourism program designed to bring income and employment to the Reservation," 2 Record, vol. 1, at 205, adopted various hunting and fishing ordinances to improve management of reservation wildlife resources. These ordinances were adopted pursuant to the tribal constitution and were duly approved by the Secretary of the Interior. Some of the ordinances are clearly inconsistent with state laws. 3 For example, the Tribe specifically does not require that a hunter on its reservation purchase a state license and, in contrast to state law, the Tribe permits elk and antelope hunters to purchase permits in consecutive years. In addition, tribal hunting seasons do not all correspond with those of the State, and bag limits differ. By obeying the more restrictive of the regulations, a non-member hunter on the reservation could conform his behavior to the dictates of both Tribe and State. His doing so, however, would render much of the tribal regulatory scheme a nullity.
The revenue derived directly and indirectly 4 from visiting sportsmen comprises a significant portion of the tribal budget, but reservation hunting and fishing by non-members is but a minuscule part of the overall state total. 5 Although the State argues that wildlife management efficiency requires its jurisdiction over reservation activities, no claim is made that any species is endangered. Cf. Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 176-77, 97 S.Ct. 2616, 2623-24, 53 L.Ed.2d 667 (1977). In fact, the State agrees that tribal management of reservation wildlife resources has been exemplary, and in conformance with accepted wildlife management procedures. Record, vol. 1, at 134. The Tribe maintains a large, well-trained enforcement staff and receives support from the Bureau of Indian Affairs.
In the factual situation presented by this case, the State is unable to claim that either it or its lands played any significant role in the creation and preservation of the reservation wildlife resources. Instead, much of the reservation wildlife is effectively a creation of the Tribe and the federal government. For example, the antelope population on the reservation is nonmigratory, and few animals ever cross the boundaries. In recent years, the herd's protection has been entirely in tribal hands. Furthermore, the Tribe has taken affirmative steps to build an elk herd. Prior to 1966, only 13 elk grazed in the general area of the reservation. In 1966-67, the National Park Service donated 162 elk. Through considerable range development, the Tribe removed cattle from direct competition with the elk for grazing land. The elk herd has grown to 1200, many of which wander off the reservation during part of the year. The migratory elk thus provide significant hunting opportunities for non-members outside the reservation, and the Tribe, despite its fundamental role in herd development, makes no attempt to limit that hunting.
The reservation has no natural lakes. Several man-made lakes have been constructed with federal funds and are stocked from a national fish hatchery on the reservation. Federal officials from the hatchery also provide the Tribe with technical assistance. The State has never stocked reservation lakes and no longer stocks any reservation streams. The entire tribal fishing program now exists independent of the State.
Before proceeding to the merits, we must dispose of several preliminary matters raised by the State. The State challenges, as it unsuccessfully did below, the Tribe's right to bring this suit. The State asserts that the Tribe has no standing and that the suit is otherwise not justiciable.
On the standing issue, the State argues that "(t)he Tribe is seeking to enjoin the enforcement of State penal statutes which do not apply to it and which do not threaten it or its members in any real, direct and immediate sense." Brief for Appellant at 20. In the State's view, a challenge to the state regulations may be prosecuted only by an aggrieved non-member sportsman. Since the Tribe has sold nearly all of its available hunting and fishing permits, 6 the Tribe has allegedly suffered no revenue losses and no other "injury in fact" by the regulations the State would impose on non-member sportsmen.
The State's understanding of standing requirements is overly narrow. For purposes of standing, federal courts may certainly consider the principles of elementary economics. The State's imposition of higher costs on individual sportsmen clearly limits the Tribe's ability to raise the prices of its own licenses. Cf. Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184, 1186 (9th Cir. 1971). We have no reason to assume that the demand curve for reservation hunting and fishing is so inelastic that the Tribe could charge and receive any imaginable price for its licenses. Even though all tribal licenses are now sold, and applications for licenses exceed the number available, that fact merely reflects the Tribe's conservative adjustment to market forces in devising its own fee structure. Similarly, other conflicts between the tribal and state regulatory structures-e. g., variations in hunting seasons-necessarily deter some non-member hunters from entering the reservation at some times. These conflicts affect the Tribe's own regulatory scheme. They also influence the prices the Tribe may charge and impinge on the Tribe's revenue-raising powers. These effects are not merely speculative, but are the straightforward and immediate results of economic forces. Cf. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 683-90, 93 S.Ct. 2405, 2413-17, 37 L.Ed.2d 254 (1973).
Beyond economics, the Tribe has another legitimate basis for standing. When one sovereign entity is alleged to have usurped the authority lawfully belonging to another, the injured sovereign must have standing to challenge the usurpation. Other circuits have routinely found standing, without discussion, when Indian tribes have sought judgments that states were unlawfully interfering with tribal regulation of hunting and fishing. See, e. g., Confederated Tribes of Colville Indian Reservation v. Washington, 591 F.2d 89 (9th Cir. 1979); Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 588 F.2d 75 (4th Cir. 1978). 7
No other barrier to justiciability is present. The impact of the state regulation upon the Tribe is "sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage." Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 1517, 18 L.Ed.2d 681 (1967). The limits of state jurisdiction on the reservation is an issue now as ripe for resolution as it will ever be. The State has made clear that prosecution of non-member violators of state game laws, with the attendant effects on tribal regulation and revenue-raising, is intended and probable. Record, vol. 1, at 204. Cf. Poe v. Ullman, 367 U.S. 497, 501-02, 81 S.Ct. 1752, 1754-55, 6 L.Ed.2d 989 (1961).
Finally, all indispensable parties are named in the suit. As the district court noted, "A determination that New Mexico game laws are not applicable to non-Indian activity within the Mescalero Apache Reservation cannot injuriously affect the interests of the United States . . . ." Record, vol. 1, at 204. In addition, "no act would be required of the Secretary (of the Interior) regardless of the outcome of the suit." Id. at 205.
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