James R. Scarantino Attorney At Law 714 Montc1aire NE · Albuquerque, NM 87110 (505) 250-8754 · (505) 232-4515 Fax
December 22, 2004 Duane L. Shroufe Director Arizona Game and Fish Department 2221 W. Greenway Road Phoenix, AZ 85023-4399
Re: Proposed License/Tag Fee Ceiling Increases
Dear Director Shroufe:
I write on behalf of United States Outfitters and its many nonresident clients. We wish to share our views on the proposed statutory increases to the license/tag fee ceilings. While we understand that the proposal is phrased merely as an increase in the fee ceilings, we cannot overlook the fact that once the ceilings are raised by the Legislature, the Commission by rule making may then set the fees at any level within that range. Therefore, we view the request to increase the fee ceilings as a request by the Commission for authority to at some point in time increase the actual fees to the maximum level authorized by the Legislature.
The growing real disparity between resident and nonresident fees as reflected in the proposals is cause for great concern. Nonresidents already are being unfairly burdened by having to pay much more for the same opportunity to hunt game. This unfairness is made even worse by the fact that the majority of those hunting opportunities take place on federal public lands, lands owned and supported equally by all Americans, regardless of their place of residence. There are limits to the extent to which nonresidents can be expected to tolerate and overlook being subjected to discrimination. The proposed fee increases exceed the limits of tolerance.
Under the proposal a nonresident could be charged $775 for the same bull elk hunt for which, at most, a resident would only be charged $150. In the case of a premium bull elk tag, nonresidents could be charged as much as $3200, compared to only $350 for residents. Further examples of outrageous disparities are found throughout the proposed fee ceiling table being circulated for comments, including but not limited to the proposals concerning deer, premium deer, antelope and bighorn sheep license/tag fees.
We also wish to object to the fact that the spread between nonresident and resident could be increasing. For instance, currently nonresidents pay five times more for an antelope tag than residents. Under the proposal, nonresidents could be paying 7 times as much.
Duane L. Shroufe December 22, 2004 Page Two
Under the current fee structure, nonresidents pay 5.13 times as much as residents for a bighorn sheep tag. The proposal could increase this differential to a factor of 8.96. Nonresidents may currently purchase Class G General licenses for 4.45 times as much as the resident rate. Under the proposal, they could have to pay as much as 5.3 times for the same license. And, by way of one more example, currently residents pay 4.03 times as much as residents for a Class F Combination license. Under the proposal, they will have to pay nearly $100 more, whereas residents would at most face only a $16 additional levy.
The sheer difference in the amount that could be charged residents versus nonresidents is what makes the proposals unacceptable. There is no rational basis for the disparities. The true costs to society of a bull elk hunt, for example, are not reflected in the amount that residents could be charged. The same holds true for other species. Furthermore, it does not cost hundreds or thousands of dollars more to administer a nonresident deer, bull elk or premium bull elk hunt than it costs to administer similar resident hunts. The only plausible explanation for the differential is to (a) force nonresidents to increase their subsidy of resident hunting on federal public lands and elsewhere in Arizona and (b) to intentionally discriminate against nonresidents in access to hunting opportunities.
The disparities are so extreme we believe they are also intended as a means of defying the District Court's decision in Montova v. Shroufe. There exist many recorded declarations, including statements from the Commission, that nonresident fees would be raised to punitive levels as another means of excluding nonresidents and also retaliating against nonresidents for daring to successfully vindicate their federal constitutional rights.
Even under the United States Supreme Court decision in Baldwin v. Montana Game and Fish Commission, there are limits to the degree to which nonresidents may be subjected to discriminatory fee structures. As I need not remind you, in light of the Ninth Circuit's ruling in Conservation Force v. Manning, nonresidents can challenge Arizona's discriminatory fees under Commerce Clause strict scrutiny. Arizona would have to prove that it had no other means to serve its legitimate purposes of maintaining resident hunting opportunity and conserving wildlife except to charge the precise discriminatory fees being charged nonresidents. It would have to demonstrate that no lesser range of nonresident fees would serve those purposes. I do not think I overstate the case when I say that such a burden would be impossible to meet.
Losing a Commerce Clause challenge to discriminatory fee structures would not only expose Arizona to sizable claims for attorney fees, it would also expose Arizona to claims for monetary damages, and certainly refunds with interest to all nonresidents who had paid the discriminatory fee. This would impose additional legal and administrative costs upon the Department that would be better spent in game conservation programs.
Nonresidents already bear a disproportionate share of the costs of game management in Arizona. They do not mind paying more to some reasonable extent. But, as I said when I addressed the Commission in Safford, there are limits to nonresidents' tolerance. The Duane L. Shroufe December 22, 2004 Page Three
Commission cannot act unreasonably and expect nonresidents to acquiesce in being mistreated and callously exploited.
I note that in the explanation you have given for the fee ceiling proposals, you point to the fact that license sales fell 16% from 1998through 2003. This drop-off occurred during the period of time the Department was vigorously resisting allowing any more licenses to be sold to nonresidents. To some extent, the Department and Commission must accept responsibility for the fiscal pressures behind the need to raise license sales. Had the Department negotiated a reasonable increase in nonresident access when we first invited settlement in 1997, it likely would not be facing the same fiscal pressures it confronts today. Moreover, if the Department were to factor into its calculations increased sales to nonresidents, at fair rather than punitive license fee levels, I think you would find even less justification for the astronomical ceilings proposed for nonresident licenses. The Department could continue to benefit from nonresident subsidy of resident hunting, without forcing nonresidents to take legal action to protect their rights.
We also strongly believe that residents need to begin to pay more of a fair price for the privilege of hunting big game. There are real costs to preserving habitat and raising a large game animal to maturity. The fair market value of big game hunts is far above what residents are currently paying, or will be paying under the ceiling increase proposals. Making residents realize the true costs of game management will have the salutary result of promoting greater interest in increasing hunting opportunities by conserving more wildlife habitat. The real force driving up the costs of hunting is the conflict between an exploding human population and the need for more wildlife habitat. Nonresidents are not the cause of increased resident hunting fees; they have been and will likely continue to be a moderating force that helps hunting continue to be an affordable activity. Nonresident tolerance for the extent to which they are being exploited is, however, reaching a breaking point, leaving litigation as their only recourse.
We believe the entire proposal should be reconsidered. The Department's needs for expanded funding should be addressed with fairness to nonresidents in mind, as well as adherence to the legal restraints against discriminating against nonresidents in their access to hunting opportunities.
We hope you and the Commission will take these comments into consideration in reformulating your approach to future license fee structures.
JAMES R. SCARANTINO