Minnesota ex rel. Hatch v. Hoeven, A1-04-021.

• Decision Date: 08 June 2005
• Docket Number: No. A1-04-021.,A1-04-021.
• Citation: 370 F.Supp.2d 960
• Parties: State of MINNESOTA, by its Attorney General Mike HATCH, and Collin Peterson, Starkey Grove, and Charles Orvik, Plaintiffs, v. John HOEVEN, in his official capacity as Governor of the State of North Dakota, and Dean C. Hildebrand, in his official capacity as Director of the North Dakota Game and Fish Department, Defendants.
• Court: U.S. District Court — District of North Dakota

370 F.Supp.2d 960

State of MINNESOTA, by its Attorney General Mike HATCH, and Collin Peterson, Starkey Grove, and Charles Orvik, Plaintiffs, v. John HOEVEN, in his official capacity as Governor of the State of North Dakota, and Dean C. Hildebrand, in his official capacity as Director of the North Dakota Game and Fish Department, Defendants.

No. A1-04-021.

United States District Court, D. North Dakota, Southwestern Division.

June 8, 2005.

COPYRIGHT MATERIAL OMITTED

Harry Sieben, Jr., Sieben, Grose, Von Holtum, Mccoy & Carey, Minneapolis, MN, Lawrence W. Pry, MN Attorney General's Office, St Paul, MN, for Plaintiffs.

Dean J. Haas, Paul Craig Germolus, Attorney General's Office Civil Litigation, Bismarck, ND, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HOVLAND, Chief Judge.

Before the Court is the Plaintiffs' Motion for Summary Judgment filed on January 27, 2005, and the Defendants' Motion for Summary Judgment filed on February 25, 2005. On March 3, 2005, the International Association of Fish and Wildlife Agencies filed an amicus brief in support of the Defendants' motion. On May 12, 2005, the Defendants' filed a Motion to Dismiss. For the reasons set forth below, the Court grants the Defendants' Motion for Summary Judgment, denies the Plaintiffs' Motion for Summary Judgment, and denies as moot the Defendants' Motion to Dismiss.

I. BACKGROUND

As the Court stated in its Order of August 17, 2004, this case arises out of legislative and administrative changes North Dakota made to its hunting regulations prior to the 2003 waterfowl hunting season. Because commercial hunting of waterfowl is prohibited, this is not a commercial livelihood case. On March 10, 2004, the State of Minnesota filed suit against North Dakota's Governor, John Hoeven, and the Director of the North Dakota Game & Fish Department, Dean Hildebrand (collectively referred to as "North Dakota"), alleging that the newly adopted hunting regulations violate the Commerce Clause and the Privileges and Immunities Clause of the United States Constitution. On April 8, 2004, Minnesota amended its complaint to add three individual plaintiffs: Collin Peterson, Starkey Grove, and Charles Orvik (collectively referred to as "Minnesota"). The amended complaint added alleged violations of 42 U.S.C. § 1983. There is no allegation in the amended complaint that hunting waterfowl is a means to the plaintiffs' livelihood.

Minnesota's amended complaint sets forth five counts. Count One alleges that a July 2003 North Dakota gubernatorial proclamation¹ barring non-resident hunting during the first week of waterfowl season violates the Commerce Clause and 42 U.S.C. § 1983. Count Two alleges that a North Dakota statutory provision² eliminating statewide non-resident waterfowl licenses and requiring non-residents to hunt waterfowl in zones specified by the governor's proclamation violates the Commerce Clause and 42 U.S.C. § 1983. Count Three alleges that other North Dakota statutory provisions³ requiring non-residents to obtain a small game and waterfowl license to hunt on land they own or lease violates the Commerce Clause, the Privileges and Immunities Clause, and 42 U.S.C. § 1983. Count Four alleges that a North Dakota statutory provision⁴ prohibiting non-residents from hunting on Game & Fish Department controlled lands during the first seven days of the pheasant hunting season violates the Commerce Clause and 42 U.S.C. § 1983. Count Five alleges that North Dakota statutory provisions⁵ imposing higher non-resident waterfowl license fees violates the Commerce Clause and 42 U.S.C. § 1983. Minnesota asks the Court to declare North Dakota's regulation of migratory waterfowl hunting unconstitutional. Minnesota also asks that North Dakota be permanently enjoined from enforcing discriminatory waterfowl hunting and licensing provisions.

On May 10, 2004, North Dakota filed a motion to dismiss under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. North Dakota asserted that Minnesota lacked standing to bring claims under the Commerce Clause, Privileges and Immunities Clause, and 42 U.S.C. § 1983 and that Minnesota's claims were barred by sovereign immunity. On August 17, 2004, the Court denied North Dakota's motion to dismiss. Minnesota, ex rel. Hatch v. Hoeven, 331 F.Supp.2d 1074 (D.N.D.2004).

On January 27, 2005, Minnesota filed a Motion for Summary Judgment asserting that North Dakota's waterfowl hunting regulations violated the Commerce Clause because the regulations applied to persons in interstate commerce and substantially affected interstate commerce. On February 25, 2005, North Dakota filed a Motion for Summary Judgment asserting that its waterfowl hunting regulations did not regulate commerce and thus, were outside the scope of the Commerce Clause. On March 3, 2005, the International Association of Fish and Wildlife Agencies filed an amicus brief in support of North Dakota' s motion. On May 12, 2005, North Dakota filed a Motion to Dismiss arguing that recently passed federal legislation supported its position that the regulation of hunting and fishing does not trigger the Commerce Clause.

II. LEGAL ANALYSIS

It is well-established that summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir.2000). A fact is "material" if it might effect the outcome of the case and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir.1996). The moving party has the initial burden of demonstrating to the Court that there are no genuine issues of material fact. If the moving party has met this burden, the non-moving party cannot simply rest on the mere denials or allegations in the pleadings. Instead, the non-moving party must set forth specific facts showing that there are genuine issues for trial. Fed.R.Civ.P. 56(e); Krein v. DBA Corp., 327 F.3d 723, 726 (8th Cir.2003). A mere trace of evidence supporting the non-movant's position is insufficient. A non-movant must present more than a scintilla of evidence and must present specific facts to create a genuine issue of material fact for trial. F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir.1997). The facts must generate evidence from which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. PRIVILEGES AND IMMUNITIES CLAUSE

In Count Three of the amended complaint, Minnesota alleges that North Dakota statutory provisions⁶ requiring non-residents to obtain a small game and waterfowl license to hunt on land they own or lease violates the Privileges and Immunities Clause and 42 U.S.C. § 1983.⁷

There is no doubt that citizens have a right to be free from discrimination based on their state of residence. Saenz v. Roe, 526 U.S. 489, 502, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). However, this right is not absolute. See Saenz v. Roe, 526 U.S. 489, 502, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (stating the Privileges and Immunities Clause provides protection for non-residents in the areas of procuring medical services and engaging in commercial activity, but that there may be substantial reasons for requiring non-residents to pay more for a hunting license or to enroll in a state university); Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 383, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978) (stating the Privileges and Immunities Clause has been used to prevent states from imposing unreasonable burdens on citizens of other states in their pursuit of employment, in the ownership and disposition of privately held property within the state, and in access to the courts, but that states may distinguish between residents and non-residents in the areas of voting and qualification for elective office).

In Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), the United States Supreme Court was presented with the issue of whether states could distinguish between resident and non-residents in controlling "access to recreational big-game hunting" without running afoul of the Privileges and Immunities Clause, Art. IV, § 2. As the Supreme Court stated:

Some distinctions between residents and non-residents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to those "privileges" and "immunities" bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and non-resident equally.

Id. at 383, 98 S.Ct. 1852. The Supreme Court reasoned that the hunting of big game is not an activity protected by the Privileges and Immunities Clause.

Elk hunting by non-residents 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 non-resident 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 non-resident's livelihood. The mastery of the animal and the trophy are the ends that are sought; appellants are not totally excluded from these....

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