Terk v. Ruch

• Decision Date: 24 February 1987
• Docket Number: Civ. A. No. 84-M-1209.
• Citation: 655 F. Supp. 205
• Parties: David B. TERK, Plaintiff, v. James D. RUCH, individually and as the Director of the Colorado Division of Wildlife, James C. Kennedy, Tim Schultz, Michael Higbee, Richard Divelbiss, Donald Fernandez, Wilbur Redden, James T. Smith and Jean Tool, individually and as members of the Colorado Wildlife Commission or comparable governing body of the Colorado Division of Wildlife, Defendants.
• Court: U.S. District Court — District of Colorado

655 F. Supp. 205

David B. TERK, Plaintiff, v. James D. RUCH, individually and as the Director of the Colorado Division of Wildlife, James C. Kennedy, Tim Schultz, Michael Higbee, Richard Divelbiss, Donald Fernandez, Wilbur Redden, James T. Smith and Jean Tool, individually and as members of the Colorado Wildlife Commission or comparable governing body of the Colorado Division of Wildlife, Defendants.

Civ. A. No. 84-M-1209.

United States District Court, D. Colorado.

February 24, 1987.

Allen W. Stokes, Jr., Denver, Colo., Daniel E. Duncan, Albuquerque, N.M., for plaintiff.

Don D. Etter, Denver, Colo., Paul A. Lenzini, Washington, D.C., for amicus curiae Intern. Assoc. of Fish and Wildlife Agencies.

Linda E. White, Adonis A. Neblett, Natural Resources Section, Office of Atty. Gen., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

The question presented is whether the State of Colorado can unequally allocate and issue, as between Colorado residents and nonresidents, its licenses to hunt Bighorn Sheep ("Sheep") and Rocky Mountain Goat ("Goat"). The plaintiff, David Terk, a Texas resident, seeks to enjoin implementation of regulations of the Colorado Wildlife Commission (the "Commission") under which approximately 90 percent of the available Sheep and Goat permits are allocated to residents. Mr. Terk claims that the Colorado regulations violate the Privileges and Immunities Clause, U.S. Const., Art. IV, and the Equal Protection Clause of the Fourteenth Amendment. He also brings claims under the Commerce Clause, U.S. Const., Art. I, § 8, and 42 U.S.C. §§ 1981 & 1983. The case is before the court on the parties' cross motions for summary judgment.

Standing was raised as an issue for the first time during oral argument held before this court on February 6, 1987. In 1984, Mr. Terk applied unsuccessfully for a Sheep license. He did not apply for a Goat license. On this basis, the defendants claim he lacks standing to challenge the regulations as applied to Goats. The Commission's system of allocating and issuing Sheep and Goat licenses is identical, and Mr. Terk has standing to attack this system in its full application.

C.R.S. § 33-1-106 states in part:

(1) In order to provide an adequate, flexible, and coordinated statewide system of wildlife management and to maintain adequate and proper populations of wildlife species, the commission shall have authority in this state, by appropriate rules and regulations, to:

(a) Determine under what circumstances, when, in which localities, by what means, what sex of, and in what amounts and numbers the wildlife of this state may be taken....

Pursuant to this legislative authority, the Commission created 40 Sheep and 10 Goat management units, and established the system of unequal allocation of Sheep and Goat permits at issue in this case. The units are based on the distribution and ranging habits of the Sheep and Goat. Unit boundaries consist of identifiable physical features such as roads, rivers, and ridgelines. Each year, the Commission determines by field inventory the number of Sheep and Goat to be taken from each unit. License applications, whether resident or nonresident, are required to specify the species and the unit applied for. For every unit in which the Commission has determined that ten or more Sheep or Goat may be hunted, ten percent of the licenses are allocated to nonresidents. In units where less than ten animals may be taken in a season, all licenses are allocated to Colorado residents. The number of licenses actually issued has differed from the Commission's allocations, apparently because of the Commission's practice of issuing licenses to residents for any nonresident allocations unclaimed due to insufficient applications for a given unit. Colo.Admin.Code, art. II, § 206(b)(3)(C).

Sheep and Goat are the only animals for which the Commission allocates permits unequally. Licenses for all other animals are drawn from a single pool without regard to state residency. The preferential allocation of Sheep and Goat began with the 1984 season. Prior to 1984, nonresident hunting of these animals was completely prohibited. It is worth noting that the practice of discriminating against nonresidents in the allocation of hunting licenses is widespread. More than twenty states either allocate their licenses unevenly, or completely prohibit nonresidents from hunting certain species.

The breakdown of applications received, licenses allocated, and licenses issued for 1984 and 1985 is as follows:

                               Applications      Licenses     Licenses    Percent    Resident: Nonresident
                Sheep:          received         allocated     issued    successful   ratio
                1984
                Residents         1687              419          409         24.2%        1:26
                Nonresidents       421               16           16          3.8%
                1985
                Residents         1805              389          374         20.7%        1:10
                Nonresidents       347               43           38         10.9%
                Goat
                1984
                Residents          486               86           86         17.7%        1:43
                Nonresidents         7                3            2         28.6%
                1985
                Residents          483               75           76         15.5%        1:11
                Nonresidents        16                8            7         43.8%
                

Source: Answer to Plaintiff's Second Interrogatories, Appendix "C" to Plaintiff's Memorandum Brief in Support of Motion for Summary Judgment (Appendix "C"), at Interrogatories No. 3, 4.

The Commission does not explain why the resident to nonresident ratio in 1984 was one to twenty-six for Sheep and one to forty-three for Goat. In 1985, however, the ratio did accord with the Commission's one in ten policy. To support his position that the Commission's allocation scheme violates the Constitution, Mr. Terk relies heavily on Terk v. Gordon, No. 74-387-M (D.N.M.1977), aff'd, 436 U.S. 850, 98 S.Ct. 3063, 56 L.Ed.2d 751 (1978). In that case, the same plaintiff sued the members of the New Mexico State Game Commission, challenging, on Art. IV Privileges and Immunities and Fourteenth Amendment grounds, a state law which authorized higher nonresident license fees and a New Mexico Game Commission "proclamation" which allocated unequally the available licenses for Sheep, Goat, Oryx and Ibex. The stated purposes for the uneven allocation were first, conservation, and second, preserving to New Mexico residents the right to hunt these species. Terk v. Gordon, No. 74-387-M, at 4-5, 14.

A three-judge district court heard the case pursuant to 28 U.S.C. § 2281, repealed by Act Aug. 12, 1976, P.L. 94-381, §§ 1, 2, 90 Stat. 1119. The court held that New Mexico's differential fee structure did not violate the Privileges and Immunities Clause. It then went on to subject the fee differential "... to the analysis accorded to legislative classifications created in the exercise of the State's police power." Terk v. Gordon, No. 74-387-M, at 12. The court described that analysis as "... essentially the same ... as the equal protection test: whether the classification is reasonable and whether it is rationally related to a legitimate state object." Id. at 13. Under this analysis, the court found the disparity in fees to be reasonable and within the state's police power.

With respect to the allocation differential, the court stated:

The effect of the allocation is to exclude non-residents who have already tendered the non-resident fee solely because they are non-residents. This is outside the limits of the police power.

If it can be done at all, the power to preserve game for one's own citizens must be based on the ownership or trusteeship theory. The issue is whether the power of the state under the ownership or trusteeship doctrines of the earlier cases is absolute or whether it is limited in the same manner as the police power. We have observed a general reluctance to rely solely on the ownership or trusteeship theories, but we find no cases directly overruling the theories. The ownership theory was subsequently overruled in Hughes v. Oklahoma, 441 U.S. 322, 335-336, 99 S.Ct. 1727, 1735-1736, 60 L.Ed.2d 250 (1979). The Supreme Court in Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) , supra, at 545, now characterizes the States' power over wild animals in the conjunctive as "trustee and police powers." The better view is that the Commission's authority to regulate game held in trust by the state is exercised under police power. We believe the New Mexico courts have so held. We conclude, therefore, that the allocation of licenses between residents and non-residents cannot be upheld.

Id. at 15 (citations omitted).

In ruling against the state's unequal allocation of permits, the court employed a police power analysis. The court did state, in that portion of its opinion regarding differential fees, that the police power and Equal Protection tests are the same. Id. at 13. This court therefore reads the court's holding as implicitly including the finding that no rational basis existed for the preferential allocation of hunting licenses to residents.

Mr. Terk appealed the district court's ruling on fees to the Supreme Court. The New Mexico Game Commission did not appeal the ruling on allocation. The Supreme Court affirmed, noting that the fee issue was controlled by Baldwin v. Montana Fish & Game Commission, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), an opinion issued subsequent to the district court's opinion in Terk v. Gordon. The Court further stated: "We express no view, however, on the allocation issue as to which no review was sought." Terk v. Gordon, 436 U.S. at 851, 98 S.Ct. at 3063.

In Baldwin, the Supreme Court upheld Montana's elk licensing scheme against Art. IV Privileges and Immunities and Equal Protection challenges brought by a nonresident hunter. Under the scheme, nonresidents paid seven and a half times more than residents for an elk license. The...