Is Hunting Recreation or Commerce?

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The battle between residents and nonresidents heats up.

My grandfather still lives in southeastern Idaho, smack in the middle of one of the premier mule deer units in the country. When I was a boy, anyone who wanted to hunt the area, resident or non-resident-could go to the local hardware store and buy a license the day before the deer opener. Although the locals occasionally muttered about the number of "California hunters" (a term applied to non-residents from any state), the vast majority of men who took to the hills each fall lived within 50 miles.

After the season, if we wanted deer antlers for craft projects, we drove to the town dump. There were plenty of deer heads strewn about and we could take our pick of nice racks as long as we could handle the stench. In rare instances a local hunter would keep an especially large set of antlers and nail them to the side of his barn.

The dump is long gone and the antlers that used to be discarded are in high demand. Even the big racks nailed to the barns have disappeared, sold to strangers who showed up on doorsteps offering good money for something locals once viewed as pretty much worthless.

Gone, too, are the over-the-counter licenses for non-residents. Now there is a strict quota on the number of non-residents who can hunt deer in the area and they must submit an application early in the year. The odds of drawing a tag are slim and many hunters have applied for years without success.

Although some local business owners look forward each year to the influx of non-resident hunters, many resident hunters are resentful that these outsiders are competing for "their" deer. Some of the non-residents are unhappy that their participation is capped. After all, most of the land in the area is national forest and they reason that it belongs as much to them as to the guy that lives just down the road.

Resentment and anger over the situation simmered for years, but so far no one has decided to raise a legal challenge. Unfortunately, in several other states the battle between resident and non-resident hunters has ended up in the courtroom. In reality, the central issue is not resident versus non-resident. It is really about recreation versus commerce: Will hunting continue to be a sport for the common man, or will it become a business transaction reserved for the privileged and wealthy?

Many hunters are aware that a legal battle over this issue occurred last year in Arizona. Owners and operators of a prominent national outfitting company, United States Outfitters, sued the Arizona Game & Fish Department. According to the court filings, the plaintiffs argued that their only reason for hunting animals in Arizona is to "obtain the meat of the animals, their hide, their ivories, and especially their head and rack of antlers to profit from the sale and use of the non-edible parts." In other words, their contention is that hunting is their business and they do not do it for recreation or pleasure. As a result, they argued that the state's 10% cap on nonresident permits unfairly restricted their ability to earn a livelihood.

The original court case found in favor of Arizona. But in July 2004, the U.S. Ninth Circuit Court of Appeals overturned the original verdict and ruled in favor of the outfitters. The court cited the Commerce Clause of the Constitution, which was designed to promote unity of economic opportunity within the states. In its review, the court stated: "the foregoing testimony does not explain why a 10% cap, as opposed to some other (less discriminatory) cap, is necessary to achieve the state's interest in conserving hunting opportunities."

On a subsequent appeal, the U.S. Supreme Court declined to review the case, allowing the Ninth Circuit ruling to stand.

Recently Congress stepped in to resolve the situation. President Bush signed into law a bill sponsored by Senator Harry Reid, D-Nevada, that gives states the ultimate power to manage the wildlife within their boundaries. The bill was first introduced in 2004, but never made it out of committee. Co-sponsors included Senator Ted Stevens of Alaska, Senator Max Baucus of Montana, Senator Conrad Burns of Montana, Senator John Ensign of Nevada, Senator Benjamin Nelson of Nebraska, and Senator John McCain of Arizona. A similar House bill (HR 731) was sponsored by Rep. Mark Udall, D-Colorado.

The relevant text of the Reid bill says:

(a) 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 taken, or the fees charged in connection with issuance of licenses or permits for hunting or fishing.

(b) Construction of Congressional Silence- Silence on the part of Congress shall not be construed to impose any barrier under clause 3 of Section 8 of Article I of the Constitution (commonly referred to as the `commerce clause') to the regulation of hunting or fishing by a State or Indian tribe.

In other words, Reid's bill places the ultimate power of regulating hunting, fishing and wildlife management with the states. But some sportsmen believe that amounts to legalizing discrimination. After all, there are already instances where certain states have gone as far as prohibiting non-resident hunting entirely for certain game animals. That practice is not likely to become too widespread, however, because many state wildlife budgets depend heavily on non-resident license fees.

In a statement on its web site and in information sent to clients, USO expressed its opposition to the Reid and Udall bills and solicited donations for a litigation fund. In an earlier letter to clients, USO indicated that any attempt to re-institute quotas or to circumvent the Ninth Circuit Court ruling would be met with further litigation. Now it appears all of USO's efforts have been for naught.

Similar lawsuits were filed in several other states including Nevada and Wyoming. In late March, Nevada revamped its drawing process in an attempt to comply with the court ruling and stave of further litigation. Instead of the former quota giving 5% of elk tags and 10% of other big game tags to nonresidents, the state adopted a complex, new formula for allocating tags based on percentages of resident hunters who draw tags in state and out of state, and the percentage of nonresidents who get permits in their home states. It is estimated that the number of non-resident permits will increase to about 15% of the state total.

For this year's draws, Arizona approved a number of proposals department officials believe will allow them to comply with the court ruling to be less discriminatory, but stop short of giving non-residents equal access to the state's elk. Passage of the Reid bill occurred too late to have any impact on 2005 big game drawings.

Even Congressional action cannot resolve the underlying conflict.

The U.S. Supreme Court dealt with the resident/nonresident issue in a 1978 case between Montana outfitter Lester Baldwin and the Montana Fish and Game Commission. In that case the outfitter and several of his clients claimed it was unjust (and unconstitutional) for Montana to require non-residents to pay more for elk licenses.

In issuing its ruling in favor of the Montana Fish and Game Commission, the court made some interesting points:

  • "Equality in access to Montana elk is not basic to the maintenance or well being of the Union."
  • "…There were just too many people and too few elk to enable everyone to hunt the animals."
  • "We conclude that where … by its very nature the activity can be enjoyed by only a portion of those who would enjoy it, a state may prefer its residents over the residents of other states, or condition the enjoyment of the nonresident upon such terms as it see fit."
  • "The states' interest in regulating and controlling those things they claim to 'own,' including wildlife, is by no means absolute. States may not compel the confinement of the benefits of their resources, even their wildlife, to their own people whenever such hoarding and confinement impedes interstate commerce."
  • "The elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved."
  • "Whatever rights or activities may be 'fundamental' under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by nonresidents in Montana is not one of them."

In light of this Supreme Court finding, one might wonder how the Ninth Circuit Court could make a ruling that seems in total opposition. In Baldwin v. Montana, the central focus of the case was that the state discriminated against nonresident by charging higher fees. The more recent case claims that by discriminatory access limitations on nonresidents, the state impaired the claimants' ability to earn a livelihood.

Most of the attention on this issue focuses on the West, but other areas of the country are not immune to resident/non-resident conflict. In the 1990s southern Illinois earned a reputation for producing monster whitetail bucks. Non-resident hunters flooded the area, hoping to bag a trophy. In response to resident complaints, the Illinois Department of Natural Resources in 2002 capped the number of non-resident bow hunters at 12,843.

In turn, that angered local outfitters, who believed the cap impaired their ability to make a living. The cap was raised to 15,000 in 2004, but all available permits still sold out in hours. In October 2004, a local outfitter filed suit against the IDNR in U.S. District Court challenging the legality of the cap. That case is pending.

One of the more intelligent responses to this issue came in a recent release from Safari Club International:

"SCI believes the recent lawsuits were ill advised and ill conceived. They pit hunter against hunter, resulting in unintended negative consequences and actions, which may ultimately affect our freedom to hunt. For nearly a hundred years, our game species have been well managed by state agencies who utilize local and professional game biologists and agents who are answerable to the local and state residents. Now, as a result of the recent lawsuits, many aspects of game management are in the hands of the federal courts and ultimately may be in the hands of Federal Government bureaucracy. SCI strongly opposes the involvement of the federal government in state and local game management. Therefore, SCI believes that under the circumstances, federal legislative action negating the recent federal court decision may be necessary."

In the long run, court cases and Congressional decrees probably won't make much difference. There still will not be enough prime public land to satisfy every hunter who wants the chance to hunt a record class elk, or bighorn sheep, or mule deer. Instead of legal bickering, the focus of fellow hunters should be on making certain that hunting opportunities will still exist for our children and grandchildren 20 or 40 or 60 years from now.


jaybe's picture

Well Said

I can't believe that this article was posted in 2005 and I am the first to comment on it!

That seems weird.

You said, "In light of this Supreme Court finding, one might wonder how the Ninth Circuit Court could make a ruling that seems in total opposition."

In response to that, I would only say that the Ninth Circuit Court has a history of being very biased on the liberal side of many issues.

I believe that your final paragraph really nailed it - " Instead of legal bickering, the focus of fellow hunters should be on making certain that hunting opportunities will still exist for our children and grandchildren 20 or 40 or 60 years from now."

Man, that is really the issue, isn't it?

If states and the Federal Gov't. have their way, all hunting (and all other use of land and natural resources) will become nothing more than a means of filling their coffers and (trying to) balance their budgets.

The maintenance of our animal herds and the wishes/needs of the sportsmen will be long forgotten.

Thanks for this good article.


Jaybe, we changed our system

Jaybe, we changed our system on BGH last summer. All featured articles and reviews used to be linked in through the forum. You can find previous comments to the above article here:

In the forum we a section for archived article comments.

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