AZ402
Well-known member
Statement of REPRESENTATIVE MARK UDALL
On introduction of Bill To Reaffirm State Authority
To Regulate Resident and Nonresident Hunting and Fishing
February 9, 2005
Mr. Speaker, today I am introducing a bill to reaffirm the authority of each state to regulate hunting and
fishing within its boundaries, and especially a state’s authority to enforce laws or regulations that differ
in the way they treat that state’s residents and people residing elsewhere.
A similar Senate bill has been introduced by Senator Reid of Nevada, who introduced a related measure
in the 108th Congress. He has been the leader on this matter, and I am proud to join in the effort.
There is nothing new about a state’s having different rules for resident and nonresident hunters or
anglers. Colorado draws that distinction in several ways, and many other states do so as well.
And while there have been challenges to the validity of such rules, until recently the federal courts have
upheld the right of the states to make such distinctions. For example, in 1987 the federal district court
for Colorado, in the case of Terk v. Ruch (reported at 655 F. Supp. 205), rejected a challenge to
Colorado’s regulations that allocated to Coloradans 90% of the available permits for hunting bighorn
sheep and mountain goats.
But a recent Court of Appeals decision marked a change – something that definitely is new.
In that case (Conservation Force v. Manning, 301 F.3rd 985; 9th Cir. 2002), the federal appeals court for
the 9th Circuit held that Arizona's 10% cap on nonresident hunting of bull elk throughout the state and of
antlered deer north of the Colorado River had enough of an effect on interstate commerce that it could
run afoul of what lawyers and judges call the “dormant commerce clause” of the Constitution.
Having reached that conclusion, the appeals court determined that the Arizona regulation discriminated
against interstate commerce – meaning the “dormant commerce clause” did apply and that the regulation
was subject to strict scrutiny, and could be upheld only if it served legitimate state purposes and the state
could show that those interests could not be adequately served by reasonable non-discriminatory
alternatives.
The appeals court went on to find that the regulations did further Arizona’s legitimate interests in
conserving its population of game and maintaining recreational opportunities for its citizens, but it
remanded the case so a lower court could determine whether the state could meet the burden of showing
that reasonable non-discriminatory alternatives would not be adequate.Because of the decision’s potential implications for their own laws and regulations, it was a source ofconcern to many states in addition to Arizona. In fact, 22 other States joined in supporting Arizona’s request for the decision to be reviewed by the U.S. Supreme Court. Colorado was one of those States, and our then-Attorney General, Ken Salazar, joined in signing a brief in support of Arizona’s petition for Supreme Court review.
Regrettably, the Supreme Court denied that petition. So, for now, the 9th Circuit’s decision stands. Its
immediate effect is on states whose federal courts are within that circuit – namely those in Alaska,
Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as well those of Guam
and the Commonwealth of the Northern Marianas. But it could have an effect on the thinking of federal
courts across the country.
The bill’s purpose is to forestall that outcome, and so far as possible to return to the state of affairs
prevailing before the 9th circuit’s decision.
The bill would do two things:
First, in Section 2(a), it would declare that the policy of Congress is that it is in the public interest for
each state to continue to regulate the taking of fish and wildlife within its boundaries, including by
means of laws or regulations that differentiate between residents and non-residents.
And, in Section 2(b), it would provide that silence on the part of Congress is not to be construed by the
courts as imposing any barrier under the commerce clause of the constitution to a state’s regulation of
hunting, fishing, or trapping.
These provisions are intended to speak directly to the “dormant commerce clause” basis for the 9th
Circuit’s decision in Conservation Force v. Manning.
I am not a lawyer, but my understanding is that lawyers and judges use that term to refer to the
judicially-established doctrine that the commerce clause is not only a "positive" grant of power to
Congress, but also a "negative" constraint upon the States in the absence of any Congressional action –
in other words, that it restricts the powers of the states to affect interstate commerce in a situation where
Congress has been silent.
Section 2 (a) of the bill would end the perceived silence of Congress by affirmatively stating that state
regulation of fishing and hunting -- including State regulation that treats residents and non-residents
differently – is in the public interest. This is intended to preclude future application of the “dormant
commerce clause” doctrine with regard to such regulations.
Section 2 (b) would make it clear that even when Congress might have been silent about the subject, that
silence is not to be construed as imposing a commerce-clause barrier to a state’s regulation of hunting or
fishing within its borders.
The bill is neither a federal mandate for state action nor a Congressional delegation of authority to any
state. Instead, it is intended to reaffirm state authority and make clear that the “dormant commerce
clause” – that is, Congressional inaction – is not to be construed as an obstacle to a state’s regulating
hunting or fishing, even in ways that some might claim adversely affect interstate commerce by treating
residents differently from nonresidents.
It’s also important to note that the bill is not intended to affect any federal law already on the books or to
limit any authority of any Indian Tribe. Section 3 of the bill is intended to prevent any
misunderstanding on these points.
Section 3 (1) specifies that the bill will not “limit the applicability or effect of any Federal law related to
the protection or management of fish or wildlife or to the regulation of commerce.”
Thus, to take just a few examples for purposes of illustration, the bill will not affect implementation of
the Endangered Species Act, the Migratory Bird Treaty Act, the Lacey Act, the National Wildlife
Refuge Administration Act, or the provisions of the Alaska National Interest Lands Conservation Act
dealing with subsistence.
Section 3 (2) similarly provides that the bill is not to be read as limiting the authority of the federal
government to temporarily or permanently prohibit hunting or fishing on any portion of the federal lands
– as has been done with various National Park System units and in some other parts of the federal lands
for various reasons, including public safety as well as the protection of fish or wildlife.
And Section 3 (3) explicitly provides that the bill will not alter any of the rights of any Indian Tribe.
Mr. Speaker, this bill is narrow in scope but of national importance because it addresses a matter of great
concern to hunters, anglers, and wildlife managers in many states. I think it deserves broad support.
For the information of our colleagues, here is a brief outline of the bill and a letter of support from the
International Association of Fish and Wildlife Agencies:
Outline of Bill
Section One provides a short title – “Reaffirmation of State Regulation of Resident and Nonresident
Hunting and Fishing Act of 2005.”
Section Two has two subsections:
Subsection 2(a) states that it is the policy of Congress that it is in the public interest for each state to
continue to regulate the taking of fish and wildlife for any purpose within its boundaries, including
by means of laws or regulations that differentiate between residents and non-residents with respect
to the availability of licenses or permits for particular species, the kind and numbers of fish or
wildlife that may be taken, or the fees charged in connection with issuance of hunting or fishing
licenses or permits.
Subsection 2(b) states that silence on the part of Congress is not to be construed to impose any
barrier under the commerce clause of the Constitution to a state’s regulation of hunting or fishing.
Section Three specifies that the bill is not to be construed as –
• limiting the applicability or effect of any Federal law related to the protection or
management of fish or wildlife or to the regulation of commerce;
• limiting the authority of the federal government to prohibit hunting or fishing on any
portion of the federal lands; or
• altering in any way any right of any Indian Tribe.
Section Four defines the term “state” as including the 50 States, the District of Columbia, Puerto Rico,
Guam, the Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands.
International Association of Fish and Wildlife Agencies
Representing Fish and Wildlife Agencies since 1902
Hall of the States,
444 North Capitol Street, NW, Suite 725, Washington DC 20001
Telephone (202) 624-7890 Fax (202) 624-7891 Email: [email protected]
Web Page: www.iafwa.org
February 9, 2005
Honorable Mark Udall
House of Representatives
115 Cannon House Office Building
Washington, DC 20515
Dear Congressman Udall:
The International Association of Fish and Wildlife Agencies, whose government members include the fifty state fish and wildlife agencies, strongly supports your bill to reaffirm state regulation of resident and non-resident hunting and fishing. This bipartisan bill is necessary to address the recent decision of the Ninth Circuit in Conservation Force v. Manning, 301 F.3d 985 (9th Cir. 2002), cert. denied, 537 U.S. 1112 (2003). That unprecedented decision concluded that hunting of big game in Arizona substantially affects interstate commerce such that differential treatment of residents and nonresidents must be strictly scrutinized by federal courts. By subjecting to strict scrutiny analysis under the dormant Commerce Clause state preferences for residents in hunting highly prized species, the Ninth Circuit decision strikes at the ability of states to maintain the level of local sacrifice and contribution necessary to produce big game.
We appreciate your interest in rectifying the problems caused by the Ninth Circuit ruling and appreciate also the effort of your staff to assure the bill is sharply drawn so that it neutralizes the effect of the court ruling, but beyond that neither enlarges nor diminishes state authority. The limitations provisions of section 3 are written to insure that no existing federal or tribal authority relating to fish and wildlife would be affected.
Both resident and nonresident hunters and anglers contribute to conservation, yet it is essential to conservation efforts in the several States that the level of hunting and fishing opportunity for residents not be eroded. The passion and unity that derives from direct involvement by residents in fish and wildlife programs is a critical asset in resource protection and management. The bill you have introduced reaffirms that the states are the appropriate stewards of fish and wildlife resources within their borders, the hallmark of the highly successful model of fish and wildlife protection and management in the United States. Permit numbers, license fees, hunt areas and season dates are best handled through the legislative and rulemaking processes at the state level.
Thank you again for your initiative in taking this bill forward. We look forward to working with you and your staff to achieve enactment of the bill.
On introduction of Bill To Reaffirm State Authority
To Regulate Resident and Nonresident Hunting and Fishing
February 9, 2005
Mr. Speaker, today I am introducing a bill to reaffirm the authority of each state to regulate hunting and
fishing within its boundaries, and especially a state’s authority to enforce laws or regulations that differ
in the way they treat that state’s residents and people residing elsewhere.
A similar Senate bill has been introduced by Senator Reid of Nevada, who introduced a related measure
in the 108th Congress. He has been the leader on this matter, and I am proud to join in the effort.
There is nothing new about a state’s having different rules for resident and nonresident hunters or
anglers. Colorado draws that distinction in several ways, and many other states do so as well.
And while there have been challenges to the validity of such rules, until recently the federal courts have
upheld the right of the states to make such distinctions. For example, in 1987 the federal district court
for Colorado, in the case of Terk v. Ruch (reported at 655 F. Supp. 205), rejected a challenge to
Colorado’s regulations that allocated to Coloradans 90% of the available permits for hunting bighorn
sheep and mountain goats.
But a recent Court of Appeals decision marked a change – something that definitely is new.
In that case (Conservation Force v. Manning, 301 F.3rd 985; 9th Cir. 2002), the federal appeals court for
the 9th Circuit held that Arizona's 10% cap on nonresident hunting of bull elk throughout the state and of
antlered deer north of the Colorado River had enough of an effect on interstate commerce that it could
run afoul of what lawyers and judges call the “dormant commerce clause” of the Constitution.
Having reached that conclusion, the appeals court determined that the Arizona regulation discriminated
against interstate commerce – meaning the “dormant commerce clause” did apply and that the regulation
was subject to strict scrutiny, and could be upheld only if it served legitimate state purposes and the state
could show that those interests could not be adequately served by reasonable non-discriminatory
alternatives.
The appeals court went on to find that the regulations did further Arizona’s legitimate interests in
conserving its population of game and maintaining recreational opportunities for its citizens, but it
remanded the case so a lower court could determine whether the state could meet the burden of showing
that reasonable non-discriminatory alternatives would not be adequate.Because of the decision’s potential implications for their own laws and regulations, it was a source ofconcern to many states in addition to Arizona. In fact, 22 other States joined in supporting Arizona’s request for the decision to be reviewed by the U.S. Supreme Court. Colorado was one of those States, and our then-Attorney General, Ken Salazar, joined in signing a brief in support of Arizona’s petition for Supreme Court review.
Regrettably, the Supreme Court denied that petition. So, for now, the 9th Circuit’s decision stands. Its
immediate effect is on states whose federal courts are within that circuit – namely those in Alaska,
Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as well those of Guam
and the Commonwealth of the Northern Marianas. But it could have an effect on the thinking of federal
courts across the country.
The bill’s purpose is to forestall that outcome, and so far as possible to return to the state of affairs
prevailing before the 9th circuit’s decision.
The bill would do two things:
First, in Section 2(a), it would declare that the policy of Congress is that it is in the public interest for
each state to continue to regulate the taking of fish and wildlife within its boundaries, including by
means of laws or regulations that differentiate between residents and non-residents.
And, in Section 2(b), it would provide that silence on the part of Congress is not to be construed by the
courts as imposing any barrier under the commerce clause of the constitution to a state’s regulation of
hunting, fishing, or trapping.
These provisions are intended to speak directly to the “dormant commerce clause” basis for the 9th
Circuit’s decision in Conservation Force v. Manning.
I am not a lawyer, but my understanding is that lawyers and judges use that term to refer to the
judicially-established doctrine that the commerce clause is not only a "positive" grant of power to
Congress, but also a "negative" constraint upon the States in the absence of any Congressional action –
in other words, that it restricts the powers of the states to affect interstate commerce in a situation where
Congress has been silent.
Section 2 (a) of the bill would end the perceived silence of Congress by affirmatively stating that state
regulation of fishing and hunting -- including State regulation that treats residents and non-residents
differently – is in the public interest. This is intended to preclude future application of the “dormant
commerce clause” doctrine with regard to such regulations.
Section 2 (b) would make it clear that even when Congress might have been silent about the subject, that
silence is not to be construed as imposing a commerce-clause barrier to a state’s regulation of hunting or
fishing within its borders.
The bill is neither a federal mandate for state action nor a Congressional delegation of authority to any
state. Instead, it is intended to reaffirm state authority and make clear that the “dormant commerce
clause” – that is, Congressional inaction – is not to be construed as an obstacle to a state’s regulating
hunting or fishing, even in ways that some might claim adversely affect interstate commerce by treating
residents differently from nonresidents.
It’s also important to note that the bill is not intended to affect any federal law already on the books or to
limit any authority of any Indian Tribe. Section 3 of the bill is intended to prevent any
misunderstanding on these points.
Section 3 (1) specifies that the bill will not “limit the applicability or effect of any Federal law related to
the protection or management of fish or wildlife or to the regulation of commerce.”
Thus, to take just a few examples for purposes of illustration, the bill will not affect implementation of
the Endangered Species Act, the Migratory Bird Treaty Act, the Lacey Act, the National Wildlife
Refuge Administration Act, or the provisions of the Alaska National Interest Lands Conservation Act
dealing with subsistence.
Section 3 (2) similarly provides that the bill is not to be read as limiting the authority of the federal
government to temporarily or permanently prohibit hunting or fishing on any portion of the federal lands
– as has been done with various National Park System units and in some other parts of the federal lands
for various reasons, including public safety as well as the protection of fish or wildlife.
And Section 3 (3) explicitly provides that the bill will not alter any of the rights of any Indian Tribe.
Mr. Speaker, this bill is narrow in scope but of national importance because it addresses a matter of great
concern to hunters, anglers, and wildlife managers in many states. I think it deserves broad support.
For the information of our colleagues, here is a brief outline of the bill and a letter of support from the
International Association of Fish and Wildlife Agencies:
Outline of Bill
Section One provides a short title – “Reaffirmation of State Regulation of Resident and Nonresident
Hunting and Fishing Act of 2005.”
Section Two has two subsections:
Subsection 2(a) states that it is the policy of Congress that it is in the public interest for each state to
continue to regulate the taking of fish and wildlife for any purpose within its boundaries, including
by means of laws or regulations that differentiate between residents and non-residents with respect
to the availability of licenses or permits for particular species, the kind and numbers of fish or
wildlife that may be taken, or the fees charged in connection with issuance of hunting or fishing
licenses or permits.
Subsection 2(b) states that silence on the part of Congress is not to be construed to impose any
barrier under the commerce clause of the Constitution to a state’s regulation of hunting or fishing.
Section Three specifies that the bill is not to be construed as –
• limiting the applicability or effect of any Federal law related to the protection or
management of fish or wildlife or to the regulation of commerce;
• limiting the authority of the federal government to prohibit hunting or fishing on any
portion of the federal lands; or
• altering in any way any right of any Indian Tribe.
Section Four defines the term “state” as including the 50 States, the District of Columbia, Puerto Rico,
Guam, the Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands.
International Association of Fish and Wildlife Agencies
Representing Fish and Wildlife Agencies since 1902
Hall of the States,
444 North Capitol Street, NW, Suite 725, Washington DC 20001
Telephone (202) 624-7890 Fax (202) 624-7891 Email: [email protected]
Web Page: www.iafwa.org
February 9, 2005
Honorable Mark Udall
House of Representatives
115 Cannon House Office Building
Washington, DC 20515
Dear Congressman Udall:
The International Association of Fish and Wildlife Agencies, whose government members include the fifty state fish and wildlife agencies, strongly supports your bill to reaffirm state regulation of resident and non-resident hunting and fishing. This bipartisan bill is necessary to address the recent decision of the Ninth Circuit in Conservation Force v. Manning, 301 F.3d 985 (9th Cir. 2002), cert. denied, 537 U.S. 1112 (2003). That unprecedented decision concluded that hunting of big game in Arizona substantially affects interstate commerce such that differential treatment of residents and nonresidents must be strictly scrutinized by federal courts. By subjecting to strict scrutiny analysis under the dormant Commerce Clause state preferences for residents in hunting highly prized species, the Ninth Circuit decision strikes at the ability of states to maintain the level of local sacrifice and contribution necessary to produce big game.
We appreciate your interest in rectifying the problems caused by the Ninth Circuit ruling and appreciate also the effort of your staff to assure the bill is sharply drawn so that it neutralizes the effect of the court ruling, but beyond that neither enlarges nor diminishes state authority. The limitations provisions of section 3 are written to insure that no existing federal or tribal authority relating to fish and wildlife would be affected.
Both resident and nonresident hunters and anglers contribute to conservation, yet it is essential to conservation efforts in the several States that the level of hunting and fishing opportunity for residents not be eroded. The passion and unity that derives from direct involvement by residents in fish and wildlife programs is a critical asset in resource protection and management. The bill you have introduced reaffirms that the states are the appropriate stewards of fish and wildlife resources within their borders, the hallmark of the highly successful model of fish and wildlife protection and management in the United States. Permit numbers, license fees, hunt areas and season dates are best handled through the legislative and rulemaking processes at the state level.
Thank you again for your initiative in taking this bill forward. We look forward to working with you and your staff to achieve enactment of the bill.
