USO's latest

[bowhuntinmaniac]

--------------------------------------------------------------------------------

 

[bowhuntinmaniac]

These people revolt me - truly. This is from their website...

CONGRESS ATTACKS HUNTERS’ RIGHTS 2/28/05 Dear Fellow Hunter: Your right to hunt and fish on federal public lands . . . lands you and I and every other American own . . . is about to be taken away from us via legislation by our very own Congress. A Bill introduced in Congress by Nevada Senator Harry Reid (S # 339) and another by Colorado Representative Mark Udall (H.R. # 731) will allow the Rocky Mountain States to exclude you from hunting and fishing on National Forests, BLM and other public lands solely because you are a nonresident. In fact, every State could keep you out if this law passes. This bill will allow states to discriminate against you, to treat you like a second-class citizen, and to deny your right to apply and hunt for elk, mule deer, antelope, sheep and every other specie on public land. States could and would impose stricter nonresident limits than on residents on public fishing areas. Senator Reid calls it “A bill to reaffirm the authority of States to regulate certain hunting and fishing activities.” Its’ real purpose is to circumvent recent court decisions that favored nonresidents and allow states to again discriminate against nonresidents in allocating licenses, limits, and setting license fees. In other words, States could restrict nonresidents, like you, from receiving any licenses to hunt or fish on public lands, or allow States to charge you thousands of dollars for the same hunting licenses that residents would pay only a few dollars for. This isn’t make believe. Even though the U. S. Supreme Court has ruled in Hughes vs. Oklahoma, that the wildlife belongs to all Americans equally, nonresidents are still subjected to severe discrimination today. Let me give you just a few examples:

Colorado no longer allows nonresidents to apply to the Ranching for Wildlife Areas. Once nonresidents were removed from these high quality elk and deer areas, the State passed a quota on nonresidents to keep them from drawing too many of the few remaining high quality tags left to apply for in the State.

New Mexico’s highly prized Valle Calderas National Preserve was bought for $101 million in Federal money just a few short years ago. Now the NM Game and Fish Department has put a strict quota on nonresidents. Last year nonresidents donated over 65% of the application money for these elk tags, but only received 19% of the tags. New Mexico’s sheep license is $3000 for nonresident and $100 for a resident.

Utah, just in the past few weeks, passed a regulation starting in 2006 that will give 25% of the existing nonresident tags and a paltry 5% of resident tags to a yearly convention in Salt Lake City. The rules allow you to have a chance of getting one of these tags only if you travel to Utah in person and apply. They know you won’t. In other words, they will transfer these nonresident tags into resident hands. In more discrimination, Utah does not allow any nonresidents to apply for the draw to obtain the high quality Cooperative Wildlife Management Unit tags, only residents.

The Montana process keeps you from drawing the quality tags; they only allow nonresidents “up to 10%” of the sheep, moose, and mountain goat tags. When applying for the quality limited elk areas, you have to first apply for the low quality combination tag which is guaranteed to be drawn every two years. Residents get to apply yearly as their combination tags are over-the-counter. Once you have drawn the combo tag at a cost of $660, then you reapply for the quality limited areas. At one time, if you did not draw the quality tag, you simply sent the poor quality combination tag back to them for a refund. Montana did not want the nonresidents to return these licenses so they passed a regulation that you could only get a 50% refund for the poor quality combination tag. So it costs you $330 for a 1 in 20 chance of drawing a quality tag or you are stuck with the combination tag. Not a tough decision for nonresidents to not apply, so the residents win . . . again. In Wyoming, nonresidents apply nearly blind at the quality limited entry tags. Wyoming gives up to 20% of the elk tags to nonresidents, but deducts two nonresident tags for each nonresident landowner who qualifies and owns as little as 2000 acres in that unit. But when they calculate the draw odds, they act as if each tag was in the drawing. Trying to get this information on the real numbers is time consuming, usually inaccurate, and often exasperating.


For added discrimination, Wyoming uses an outdated true preference point program and quota system for their sheep and moose that gives you virtually no hope of drawing unless you started years ago. Wyoming also forces you to hire or use a resident to hunt wilderness areas.

Arizona and Nevada were highly discriminatory toward nonresidents until the recent “Montoya vs Manning” decision by the Ninth Circuit United States Court of Appeals which forces these States to treat all hunters equally. Arizona now is looking for ways to dodge the law and actually advertised for ideas on how to discriminate against nonresidents. They may try to take elk licenses up to an outrageous $3200 each. Nevada already charges $1200 for an elk tag to nonresidents. Nevada is also attempting to defy the court system by only opening up certain units to nonresidents and excluding nonresidents altogether from millions of acres of federal lands. On top of all this discrimination, nonresidents already pay the majority of the budgets for the Rocky Mountain States’ game and fish departments, even though we get only a fraction of the licenses. In addition, Arizona, Nevada, Montana, and Idaho collect millions of dollars from nonresidents each year for general hunting licenses. They basically extort money from the nonresident because the nonresident is forced to purchase a general hunting license in order to either apply and/or obtain a bonus point. This general hunting license rarely gets used so it is free money to the State. Little does the nonresident know that the quota is the main deterrent to his drawing a tag. It is about to get worse if S. 339 and HR. 731 becomes law. These Bills expressly permit unlimited discrimination on price allocation on all lands and waters. If these bills pass, it won’t matter if you have family in one of these western states or own property in the state. It does not matter if you hire a guide or not, does not matter if you are a bow, muzzleloader, or rifle hunter, and does not matter if you have served your country in the armed services. As long as you are residing in another State you will feel the sting of discrimination. Ranchers and farmers won’t be able to sell hunting opportunities to nonresidents. So much for private property rights! This is bad. Very bad. This is un-American and the greatest threat to the hunting tradition to come along in a very long time.

We must act now, together, to protect our right to hunt, fish, and travel in our own country. As American citizens and the bill payers, we have the right not to be discriminated against because of the State we live in. We live in the United States of America, remember! This isn’t about States rights! This isn’t about conservation! It is about selfish and politically influential local hunters wanting to keep everyone else out of our federal public lands in their State, nothing more. Due to many years of litigation and personal sacrifice, courts are now supporting the nonresident. Now only the politicians, like Reid and Udall, can pass legislation to continue the discrimination against us. If residents of the states outside of the Rocky Mountains don’t speak up against this legislation, you stand to lose your right and your children’s right to ever hunt in a quality unit in the Rocky Mountains. You and your friends must call and mail your States’ U.S. Congressional Representatives and U.S. Senators. Tell them to oppose S. 339 and H.R. 731. This is the most important task you must do. Attached is a sample letter. Lift out the paragraphs you like and send it to your own Representative. Contact your local and national hunting organizations and tell them the importance of defeating this legislation. Don’t let them use any excuse, even if their headquarters is in one of the Rocky Mountain States trying to take your rights away, they are supposed to be representing you, not trying to obtain tags and hunting opportunities for themselves. Donations can be sent to the UNITED STATES OUTFITTERS and label them “Nonresident Legal Fund”. For more information, call or e-mail: Conservation Force United States Outfitters, Inc 3900 N. Causeway Blvd. Suite 1045 325 Santistevan Lane Metairie, LA 70002-1746 Taos, NM 87571 504-837-1233 505-758-9774 504-837-1145 Fax 505-758-1744 Fax [email protected] [email protected] You can get your congressman’s e-mail, phone number, fax number, and mailing address at www.senate.gov or www.house.gov. We must act now, together, to protect our right to hunt, fish, and travel in our own country.

 

[The Hedgehog]

Whimpering George, what's that old saying? ..Don't crap where you eat.

Use the contacts listed in his message to support the legislation.

I love his reference to Montana's "poor quality" combination tags.

I ordered his brochure, chuck full of color photos of overweight guys and thier prize USO trophies, most of which are poor quality animals, especially when you consider the areas they hunt.

 

[Nemont]

George should hire an attorney who can read the law correctly.

Even though the U. S. Supreme Court has ruled in Hughes vs. Oklahoma, that the wildlife belongs to all Americans equally, nonresidents are still subjected to severe discrimination today

III.Hughes v. Oklahoma And Other Decisions Interpreting the Federal Commerce or Privileges and Immunities Clauses Does Not Affect the Validity of the Doctrine of Public Ownership of Wildlife As a Background Principle of States Property Laws.

A handful of relatively recent U.S. Supreme Court decisions contain broad language seemingly dismissive of the entire doctrine of public ownership of wildlife. For example, in Hughes v. Oklahoma, 441 U.S. 322 (1979), the Court referred to the public ownership doctrine as a 19th century fiction. Id. at 335, quoting Douglas v. Seacoast Products, Inc, 431 U.S. 265 (1977). Similarly, in Toomer v. Witsell, 334 U.S. 385, 402 (1948) the Court described the public ownership doctrine as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource. While this language could be interpreted to undermine the notion that the public ownership doctrine represents a relevant background principle of state law in the context of a takings claim, that reading would be mistaken.

First, it is apparent that the statements in Hughes and other cases are explained by and logically confined to their particular context, challenges to protectionist state legislation under the commerce or privileges and immunities clauses of the U.S. Constitution. Hughes, for example, involved an appeal by a Texas resident from a conviction under an Oklahoma statute prohibiting the transport outside the state of minnows procured from Oklahoma waters. Douglas involved a commerce clause challenge to a Virginia law forbidding fishing by federally licensed ships owned by nonresidents. Toomer likewise involved a constitutional challenge to a state statute discriminating against out of state commercial fisherman, but one brought under the privileges and immunities clause. In discussing the doctrine of state ownership of wildlife in these cases, the Court was simply explaining its conclusion that state public ownership doctrine cannot, under the federal Supremacy Clause, stand in the way of federal constitutional provisions designed to prevent balkanization of the national economy. There is no basis for thinking these decisions have any particular significance outside of that context.

In Hughes, the Supreme Court overruled its decision in Geer v. Connecticut, 161 U.S. 519 (1896), in which the Court sustained a Connecticut statute forbidding the transportation beyond the State of game birds that had been lawfully killed within the State. The Geer decision rested on the theory that the prohibition in that case did not effect interstate commerce. According to this theory, the State owns all the wildlife in the state and therefore can condition the ownership of game taken within the state by prohibiting its removal from the state. The state’s power to condition private property rights in wildlife implies, in turn, that the sale of wildlife is not commerce at all. As the Court explained in Hughes, Justices Field and Harlan dissented in Geer. They would have affirmed the State’s power to provide for the protection of wild game, but only ‘so far as such protection... does not contravene the power of Congress in the regulation of interstate commerce.’ 441 U.S. at 328, quoting Geer, 161 U.S. at 541 (Field, J., dissenting); id. at 543 (Harlan, J., dissenting).

In Hughes, the U.S. Supreme Court effectively embraced the position of the dissenters in Geer and overruled that decision. However, the Court confined its holding to the commerce clause context, stating that [w]e now conclude that challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of natural resources, and therefore expressly overrule Geer. Hughes, 441 U.S. at 335. Emphasizing the narrowness of its decision, the Court stated that the general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals. Id. at 335-36 (emphasis added). Hughes and other related decisions leave the public ownership doctrine untouched as the basis for state regulation of wildlife, so long as the regulation does not implicate the anti-economic-protectionist goals of the federal commerce clause and the privileges and immunities clause. See Shepherd v. State of Alaska, 897 P.2d 33, 40, (1995) (state ownership doctrine retains full vitality absent a conflict with paramount federal interests).

Second, an expansive reading of Hughes would contradict the deference to state definitions of property interests which is at the heart of federal takings jurisprudence. Just a few months ago, the U.S. Supreme Court in Phillips v. Washington Legal Foundation, 118 S.Ct. 1925, 1930 (1998) reaffirmed that the Constitution protects rather than creates property interests, and that the very existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ See also Lucas, 505 U.S. at 1030 (referring to the Court’s traditional resort to ‘existing rules or understandings that stem from an independent source such as state law’ to define the range of interests that qualify for protection as ‘property’ under the Fifth (and Fourteenth) amendments).

Whatever other differences may distinguish the U.S. Supreme Court’s commerce clause and takings jurisprudence, it is clear that the takings clause, rather than trumping State definitions of property rights, depends upon and incorporates State definitions of private property rights. It would literally turn federal takings jurisprudence on its head to conclude that the takings clause could be interpreted to encourage or authorize disregard for state property norms, including the doctrine of public ownership of wildlife.
Finally, numerous state court decisions, decided since Hughes, have rejected the suggestion that the U.S. Supreme Court’s commerce clause decisions have eliminated the public ownership doctrine as a basis for state wildlife management. For example, in State of Montana v. Fertterer, 841 P.2d 467, 440 (Mont. 1992), the Montana Supreme Court affirmed the convictions of several individuals for killing game without a license, rejecting the argument that Hughes effectively preclude[d] reliance on the traditional rule that wild game in Montana is public property. The court said that Hughes in not controlling in this case , because there were no claims of discrimination against non-residents based on the federal interstate commerce, equal protection, or privileges and immunities clauses. 841 P.2d at 470. See also Shepherd v. State of Alaska, supra (state ownership doctrine applies absent conflict with paramount federal interests).6

 

[Tom]

I didn't realize that good area of NM get 65% of its application money from nonresidents and gives out 19% to them. There's some merit to some of those claims, if they are true. Utah is taking nonresident tags and giving them to residents? Is that true? The tag system is always being challenged somehow, it seems like. When did these draw a tag systems start? I wonder what that law said, when they started.

 

[ringer]

Yep, he's now whining like a stuck pig. The congressmen who have responded to my letters are supportive. The state's rights issue appeals to repubs and the dems can't imagine making wild animal parts commercial. Taulman won a single battle on a technicality but you can bet these bills will put a crimp on his business as ticked as the states are at him. Bad thing is he gave the states a reason to raise the cost of hunting for all of us.

 

[YourRoyalHighness]

The American way..... bad legislation to fix a bad court decision on a bad regulation....

Arizona is screwing the rest of the Western states.... And Utah's actions are adding to it. The states denying hunting tags on Federal Lands will become an issue.

 

[Nemont]

The states denying hunting tags on Federal Lands will become an issue.

based upon what doctrine? If the state (the people) own the animal it shouldn't matter where the animal resides. The States screwed themselves when then started having land owner tags and outfitter setside tags.

Nemont

 

[YourRoyalHighness]

CRA-1964..... and the list goes on from there....

You and your hunting partner have a brainstorm: You'd like to go hunting for trophy mule deer in Arizona next season.

Wow, what a terrific idea. Wouldn't that be fun?

Hunting in the Grand Canyon for those famous Kaibob trophy mule deer — could there be anything better?

Problem is, you live in Oregon. So, you apply for tags, and you prepare yourself to pay the extra nonresident license fees that just about every state charges for nonresident hunters (even though you'll likely be hunting on federal public land rather than state public land).

The next problem is, you don't draw tags, at least not for several years, because Arizona limits nonresident tags to 10 percent of the total tag allotment.



Bummer.

On the other hand, if you're a deer hunter in Arizona, your chances to get tags to hunt in your home state just went up, because the two guys in Oregon are ruled by the nonresident regulations.

Even better for you, those two guys in Oregon (who won't join any local conservation clubs or volunteer for local habitat improvement projects to improve the deer hunting because they don't live there) won't be thinning out your deer herd, so you've got a better chance at filling your tag.

This kind of scenario has been playing out between resident and nonresident hunters for years.

Most states tend to back their own citizens' hunting rights, looking with some level of disfavor (some would call it "discrimination") on out-of-state hunters.


States have made the argument that nonresidents don't help to pay for anything, like roads, and therefore it's acceptable to charge exponentially higher rates to these nonresidents to make up for that shortfall.


The states also make the argument that they have the right to regulate both resident and nonresident hunters even when it comes to federal lands within the state (which, by law, actually belong to the feds and not the states).


It's estimated that more than 2 million hunters go out of their home state to hunt every year.

Of these 2 million hunters, 1.4 million are big game hunters. The raging debate, especially throughout the Western states, deals with what some hunter groups are calling "discriminatory" laws and regulations aimed at these nonresident big game hunters.

These "discriminatory" regulations are in the form of shortened seasons, license and registration surcharges, and draw tags limited to a certain percentage in favor of resident hunters.

The end result has been a hunter versus hunter debate between residents (who view out-of-staters as competitors with limited conservation concerns for where they're hunting) and nonresidents (who feel they have an inalienable right to hunt across borders without penalty or excessive regulation).

The situation is further complicated by the argument that federal lands like national refuges, Forest Service lands and BLM lands should be available to all citizens in an equal manner (and at an equal price) regardless of state citizenry.

According to the hunters' rights group Conservation Force (CF), these federal lands total more than 533 million acres.

The organization argues that under present laws nonresidents can't hunt on these lands, or are being forced to pay 10 times more than residents to hunt on them.

But winds of change and reform are blowing through this situation in some remarkable ways, and those changes may or may not be good for hunters.


Fed up with what it considered to be discriminatory practices against nonresident hunters, New Mexico-based USO Outfitters filed a lawsuit against the state of Arizona last year, seeking relief from that state's practice of limiting out-of-state tags to 10 percent of the total tag allotment.

Initially, USO lost. But the outfitter appealed, and the 9th Circuit Court of Appeals found in favor of USO.

In essence, the court cited the Dormant Commerce Clause of the Interstate Commerce Act; they found that the burden for justifying Arizona's discrimination against out-of-state hunters was with Arizona (and not the hunters) and when the state couldn't provide that justification, all bets were off.

The court also challenged Arizona to show there was no less obtrusive an alternative, another thing Arizona could not do.

Therefore, Arizona had to provide just as many tags to nonresidents as to residents.

Arizona appealed to the US Supreme Court, but the High Court refused to hear the case, thereby supporting the 9th Court's decision.
The ramifications of the 9th Court's rulings are far-reaching.

Other states within the district, like Utah, will have to follow the same rules, and that could mean an end to nonresident surcharges and tag restrictions, at least as far as they have been established in the past


While a lot of nonresident hunters are going to be happy with the result of that lawsuit, resident hunters aren't quite so pleased.

One of these is Las Vegas, Nev., resident Douglas Gault, with the Fraternity of Desert Bighorn Sheep. "This is quite a hot button," he said.

"USO (who brought the original lawsuit) runs a guide service as well as a professional licensing service. They have a limited power of attorney to represent their hunters, as nonresident hunters."

"As a result of the decision by the 9th Court of Appeals, USO got 250 Arizona tags. They charge $10,000 per hunt. That's a lot of money they made from this. USO filed the lawsuit for a bigger game allocation for their outfitting business."

Gault said that USO then filed suits in "almost all the other Western states, claiming they had a right to more than 10 percent of the nonresident game tags. A lot of the states have thus caved in, saying 'what's the use of fighting it, we'll just have to give nonresidents more game tags.' But this isn't about hunting. It's about business."


"This has nothing to do with the interests of the common man, and that's what's really discouraging. See, the thing is, most of the conservation volunteers in my state are hunters. And if they can't draw a tag to hunt in their own home state, they aren't going to volunteer anymore."


"We have less than 2 percent of out-of-state people working on conservation projects here, but they want more than 10 percent of our big game allocation. That doesn't seem right. And they don't contribute to the tax base of the local or state economy."

Gault's home state of Nevada still has a 10 percent nonresident game tag allocation rule in place, and Gault said the state is debating about what it will do in the future.

While that debate goes on, Gault has sponsored state legislation (HB 1006) that would, according to Gault, "make professional licensing services and tagging agencies comply with a true limited power of attorney, that expires after the tag is drawn, and require positive identification of the tag applicant."

That may sound like closing the barn door after the cows are already out.

But USO has lost some of its supporters because of the controversy, including companies who once provided endorsements to the outfitter, like Realtree Outdoors, Primos, Crooked Horn Outfitters and Barnes Bullets.



Good news for nonresidents

In the meantime, while states are trying to deal with the fallout of the 9th Court's decision, the U.S. Congress has gotten involved, and it may not be good news for nonresident hunters, said John Jackson, chairman of the Conservation Force. CF is a hunters' rights group that specializes in the rights of traveling big game hunters, both domestically and internationally.

"We've been involved in this thing from the beginning," said Jackson.

"Our niche is hunters who travel, and we have a special division that deals with nonresident hunting rights, the Nonresident Rights Defense Fund (NRRDF). But normally we're fighting the anti-hunters."

"This, this is an unusual fight because it's a fight between hunters. It's very sensitive. And normally we wouldn't want to have anything to do with this."

"But someone has to deal with this issue."

Jackson and his group make the argument that if states allow more nonresident hunters, they'll increase their licensing revenues at a time when most states "are crying for revenue," Jackson said.

"Plus, the nonresident barriers have been obstructive of good conservation practices, since license fees fund those practices. But we also think the discrimination has devalued land, the wealth of the nation, by way of artificial barriers."

While those who oppose more rights for nonresidents argue that out-of-staters don't contribute much to in-state conservation, Jackson and his group argue just the opposite.

"Are residents paying for tags to put sheep up on the mountains? No. It's the nonresidents who pay, that's who. People who pay the bills are the nonresidents. There are some Western states where 10 percent of the hunters pay 80 percent of the bills."

Jackson agrees that for the time being states are going to have to deal with the ramifications of the 9th Court's ruling, and may for the short term open up more nonresident hunting opportunities.

But at the same time, Jackson warns of a bill that's being drafted in Congress, backed by Senator Harry Reid (D-Nevada) that Jackson said "will give the states' rights back to them, the right to discriminate against nonresident hunters without limit and without any qualification, and not just hunting, but fishing too. And not just sport fishing, but commercial fishing."

Jackson said the fallout from this bill could be severe.

"You have 2 million hunters out of state every season, but you have 10 to 12 million fishermen who fish out of state. Under this bill, the states could charge any price, whatsoever."

"The bill is trying to give the states unlimited authority. It's really an over-reaction on the part of the Arizonans."

This bill could potentially undue a lot of what the 9th Court's decision did.

"States like Arizona are hoping this legislation will work," said Jackson.

"I've heard some crazy proposals, like they'd raise nonresident license fees to prohibitive levels, like 20 times more than resident fees. But all that would be illegal."

The CF chairman points out that federal land is at issue too.

"The other thing is, half or more of the land in the Western states is owned by the federal government. This bill would allow states to charge nonresidents any price they wanted, maybe 100 times more, or completely eliminate their right to hunt on federal land."

"Nonresident licensing is an open form of discrimination, ignoring the U.S. Constitution. Our forefathers adopted that commerce clause to prevent this bickering between states. The resources belong to everyone."

Some states really come down hard on nonresidents, Jackson said. For years, Kansas prohibited nonresident deer hunters entirely.

And Idaho prohibited nonresidents from coming to the state to hunt moose until just recently.

"Idaho didn't do that until we threatened litigation," Jackson said.

"There hasn't been any great opening of the doors in the Western states for nonresidents. It's just a little crack in the door."

"Really, the object is to free up those permits, be fairer and generate more revenue for the states. It's unfair and un-American to horde resources because of where you hang your hat."



Ducks, too

While the majority of the disputes involve big game hunting issues, especially on the touchy subject of limiting the number of big game tags, there have been plenty of cross-border jabs about waterfowl hunting, too.

Minnesota and North Dakota, for example, have been bickering over North Dakota's exclusion of nonresident hunters during the first week of North Dakota's waterfowl hunting season.

Some 15,000 Minnesota duck hunters who like to hunt in North Dakota aren't allowed in during that first week.

In retaliation, Minnesota crafted legislation last spring aimed at imposing fishing license and boat registration surcharges on North Dakota anglers who own cabins in Minnesota.

That legislation also included outright exclusion of those nonresident anglers during the first two weeks of Minnesota's fishing season.

 

[The Hedgehog]

Why is it bad legislation Elkgunner?

I'm glad that Arizona didn't bend over for somebody like Taulman. He'll get what's coming to him eventually. Each state should have the right to do with their wildlife managment and hunting as they see fit, including license quotas, seasons, pricing, even discriminating regulations regarding non-residents.

 

[Nemont]

You can read the entire civil rights act of 1964 and not find a mention of NR hunting on Federal Lands. The North Dakota and Minn. is between two states and most likely will not be forced to court.

Nemont

 

[ringer]

Conservation Force was the originator of the Montoya lawsuit so it's not too surprising that they support equal access and oppose Reid's bill. This will end up passing and we will have to listen to more whining from the Michael Moore wannabes like YRH. Can't wait to see this one play out. If you expect even democrats to oppose their state controlling the game animals you are living in a parallel universe. LMAO

 

[YourRoyalHighness]

Attack on Nonresident Hunting and Fishing Renewed and Stepped Up

In the new 109th Congress legislation has been introduced in both the Senate (S.339) and House of Representatives (H.R. 731) to give states unlimited authority to discriminate against nonresident hunters and anglers.

The Senate bill was introduced on 9 February 2005 by Senator Harry Reid of Nevada who is the ranking Democrat in the Senate. It was cosponsored by Senators Max Baucus (MT), Benjamin E. Nelson (NE), John Ensign (NV), and Ted Stevens (AK). The bill was referred to the Senate Judiciary Committee.

The House resolution was introduced by Representative Mark Udall of Colorado and cosponsored by (Butch) Otter of Idaho. It has been referred to the House Committee on Resources which has 12 members from the Western states behind the legislation, including four members from Arizona.

In a press release the Senators plainly state that they introduced the legislation “to protect the state’s ability to distinguish between residents and nonresidents when issuing hunting and fishing licenses.” In fact the legislation will authorize states to discriminate against nonresidents in both hunting and fishing license allocation and price on all federal land. Congress is delegating to the states the authority the Ninth Circuit Court of Appeals has said was reserved to Congress. States’ rights to regulate game is not the true issue. States’ regulatory authority to discriminate against a class of citizens, people not wildlife regulation, is the issue.

The only way to stop this divisive legislation is for nonresidents to contact their personal representatives and senators to protect their rightful access to federal lands, waters, and migratory species. The legislation is expected to move quickly. Your Congressman can help you now, but you will have no voice again once the law passes.

 

[YourRoyalHighness]

The End of Nonresident Rights

In late 2004 a bill was introduced in the U.S. Senate to totally end nonresident hunting and fishing rights in all the states of the United States of America. The purpose is to authorize states to exclude nonresident hunters and anglers at will and to permit states to charge nonresidents any price whatsoever with absolutely no limit. Though aimed to give states total discretion to discriminate against recreational hunters and anglers it covers commercial users as well. It will permit states to prevent and/or willfully burden out-of-state hunting guides and commercial fishermen and women from plying their trade from state to state. The objective is contrary to all other natural resource use in America.

The aim of the bill is to reverse nearly a quarter of a century of evolving legal cases holding that under the Dormant Commerce Clause of the United States Constitution states cannot discriminate against interstate wildlife trade because that power is reserved to Congress. The line of cases have struck down regulatory discrimination against interstate transportation of minnows [U.S. Supreme Court case Hughes v. Oklahoma, 441 U.S. 322 in 1979 that overruled another wild animal case, the Geer case of 1896], tax discrimination against nonprofit nature camps catering to nonresident nature recreationalists [U.S. Supreme Court Camps Newfound/Orvatoma, Inc. vs. Town of Harrison, 520 U.S. 564 in 1997], and hunting license allocation discrimination (limits) against nonresident deer and elk hunters [Conservation Force, Inc. v. Manning, 301 F.3d 985, 9th Cir., 2002, which lead to the Montoya v. Shroufe judgment on July 13, 2004, in Arizona’s Federal District Court], rendered in that order. Those cases have ruled that our forefathers held the Constitutional Convention primarily to prevent states from preferring their citizens over citizens of other states through discriminatory barriers of law and regulation against interstate trade of natural resources. Whether the object of trade is petroleum or waste, individual states cannot separate themselves from the union by discrimination against other states and those states’ citizens. The purpose of the Senate bill is to separate hunted and fished wildlife and fish resources from other natural resources and for Congress to give total and absolute authority to the states to establish discriminatory barriers against nonresidents. The bill also eliminates the Privileges and Immunities Clause protection afforded nonresident commercial users of game and fish which are rights that have existed for hundreds of years.

Sectors of the all powerful International Association of Fish and Wildlife Agencies appear to be behind the bill. Readers may remember that 22 states that are members of that organization appealed the Ninth Circuit Court of Appeals’ decision that Arizona’s discrimination towards out-of-state residents was facially illegal and must undergo the strictest scrutiny under the Dormant Commerce Clause. The U.S. Supreme Court denied writs, i.e., refused the 22 states.

The bill is S 2978 introduced by Senator Harry Reid on October 11, 2004, and referred to the Senate Judiciary Committee. In a news release dated December 3, 2004, the Senator states, “Please be assured that I recognize that this issue is of profound importance to Nevada sportsmen and am working with my colleagues to pass this bill as quickly as possible.” [(View this and more at http://reid.senate.gov/sportsmen.cfm)] The Senator almost succeeded in attaching it as a rider to an end of the session omnibus budget bill!

The co-sponsors are 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 powerful lot.

We do not think those Senators are fully informed. It has been presented to them narrowly as a state’s rights issue and that the courts are obstructing wildlife management by the states. In fact, it is not a management issue in the biological sense. Rather, it is an allocation process that generally can and does take place independently of biological decision-making. It is a process in which nonresidents are not represented except those few represented indirectly by outfitters and guides. The outfitters and guides that contribute so very much to auction revenue and the success of the industry’s major hunter conservation organizations have been taking a whipping for sticking up for nonresident rights. Moreover, most nonresident hunters and anglers do not utilize guides or outfitters. There are two million licensed hunters and nine million anglers that hunt or fish out-of-state each year. [National Survey of Fishing, Hunting, and a Wildlife Associated Recreation] There are many more separate individuals over a period of years. Those nonresidents greatly outnumber resident hunters and anglers in the states that wish to discriminate. Those nonresidents have had to turn to the courts for help. Now it is imperative that nonresidents let their Senators and Representatives (Companion bill expected) know that they want their rights protected, not abolished. The bill would be unfair to more Americans than it favors and it seriously impacts the right of use of federal land managed by the U.S. Government which is half the land in the United States.

Fourteen (14%) percent of licensed hunters hunt out-of-state each year and twenty-six (26%) percent of anglers fish out-of-state. [National Survey of Fishing, Hunting, and Wildlife Recreation] The states with the most hunters and anglers are not complaining such as Texas, Pennsylvania, and Michigan. The states with nominal resident populations and the most extensive federal lands are the very ones that want the unconditional right to hoard hunting and fishing resources for themselves. Some states will raise the license prices so high that only the very wealthy can hunt when and if they can get a license at all. The guiding industry will become more volatile as well as those nationwide organizations that depend upon outfitter hunt donations for all their conservation work. It will not return to the way it was. The discrimination had been growing worse and was partially held in check by litigation and the threat of litigation.

This is an undesirable fight between hunters that will test the metal of those that represent hunters that travel. Most if not all hunting and fishing organizations represent both resident and nonresident hunters and/or anglers. Locked in division and indecision they may be unable to oppose the legislation because of their resident hunter constituency. Even Conservation Force that has been a leader in advancing the interstate and international hunting industry will have to take special steps to defend nonresident hunting and fishing interests that have become so very important to the conservation paradigm in America. Conservation Force expects fallout from its defense of nonresident sportsmen and women, but we must be responsible. If we do not represent nonresident hunters and anglers, who will?

More than half of the land in the West is United States land. This bill will terminate any and all nonresident rights of hunting and fishing access on those public lands as well as state and private lands – all lands! Many of the species such as saltwater fish and waterfowl are migratory. Many elk and deer populations move from state to state. The passage of the bill would be a tragic mistake. It must be stopped.

Conservation Force has created the Non-Residents Rights Defense Fund (NR Rights Defense Fund) to oppose the legislation. It is to be separately administered from all other Conservation Force programs and must be wholly self-sustaining. We will take pains to ensure that other Conservation Force revenue is not commingled or utilized to oppose the legislation else there will be objections from our general donors that are so very important for all the other important things we do. Somebody has to save nonresident hunting and fishing, but we cannot do anything without direct support from nonresident hunting and fishing interests. This has to be separately funded and administered. The Defense Fund officially started January 1, 2005. Dedicate your tax deductible donation to oppose this legislation to “Conservation Force’s NR Rights Defense Fund”.

 

[YourRoyalHighness]

Non-Residents Are Protected By Constitution
Conservation Force has won the Terk case in New Mexico. The Federal Court held that a state must have a legitimate objective or rational basis to discriminate against non-residents in the allocation of hunting licenses. When the objective of the unequal allocation of licenses to non-residents was to create a preference for residents, it was discrimination prohibited by the “Equal Protection Clause” of the US Constitution. When the purpose or intent of the unequal license allocation is discrimination itself, it is not legitimate. There must be acceptable reasons to treat non-residents unequally under the police powers of the state to withstand scrutiny under the Constitution. Although the Terk case was first rendered 20 years ago, the authorities in New Mexico and other states have felt it was effectively reversed by a US Supreme Court decision rendered shortly after it, the Baldwin case. The Baldwin decision had held that under the Privileges and Immunities Clause of the US Constitution, equality in access to recreation of hunting “is not basic to the maintenance or well-being of the Union,” therefore non-residents were not afforded protection against unequal treatment. That is why the Attorney General of New Mexico recently argued that states can discriminate as they will without restraint. He cited many cases from Alaska to Texas but we argued that Terk was based on a different clause of the Constitution and won on that basis. The Terk court’s new interpretation of its 20- year-old decision gives the case new life and meaning that it has never had. It’s wake-up time for state agencies and legislatures. Perhaps for the first time, Terk is protecting your rights as a hunter. The presumption all these years that it was overruled by the Baldwin case was incorrect. The new Terk court states that the original Terk decision was based upon the Equal Protection Clause, not the Privilege and Immunities Clause of the US Constitution in issue in Baldwin. The Equal Protection Clause does afford non-residents protection! The new decision establishes a federal legal precedent affording some Constitutional protection to non-residents to be treated as equals in the license allocation process with residents. It is also more difficult for states to justify eliminating non-residents than it is to justify charging higher fees to them. Conservation Force undertook this case because of its importance and the possibility that, if handled correctly, it could be given a new meaning and effect that it has not had over the past 20 years. Others thought it was a lost cause and would not step up to the plate to help. Had we not accepted the responsibility to handle the case, the case may have been lost by default, for the Attorney General’s arguments were well researched and convincing. It appears to be the only standing case in favor of non-residents in the US. Had it been lost, one direct consequence is, New Mexico could have excluded all non-resident sheep hunters. This would have been particularly repugnant since the Foundation for North American Wild Sheep (FNAWS), an organization with nationwide membership, has provided hundreds of thousands of dollars for sheep restoration projects in that state. Had it been lost, there may not have been any remaining hope of protection for non-residents in US courts. In New Mexico and other states, non-resident license fees and funding from national sportsmen’s conservation organizations provide very important operating revenue and incentives for wildlife conservation. Conservation Force is reviewing other discriminatory practices in Arizona, Colorado, Wyoming and other states for possible legal action. Unfortunately there has been little financial support received for the pivotal Terk case itself and its possible appeal, much less to undertake other cases. Please send a contribution. We would like to thank David Terk for his efforts more than 20 years ago and for calling to our attention this recent attempt to overturn the misunderstood original decision. Non-resident hunters, wildlife conservationists and state wildlife agencies that are bombarded by residents who wish to be preferred over non-residents all owe David Terk a debt of gratitude.

 

[The Hedgehog]

May David Terk and his conservation force go down on the same burning aircraft as George Taulman and crew... hopefully they impact on all 4 of ElkGunner's cows.

 

[FAIRCHASEBEN]

You're letting them off too easy Greenhorn ,
May David Turk and George Taulman be diagnosed with terminal brain cancer and die slow and painful deaths while Micheal Moore eats all 4 of Elkgunners' cows .

 

[Nemont]

All I can say is that the sponsors of the legislation are Democrats and they are working with the Repulican's, who control both houses. I bet the bills pass and are signed into law. It may they have to be taken to the Supreme Court. In the end most NR hunters will wish they never heard the name USO or Griz Montoya or George Taulman.

What state will outright ban all nonresident hunters and fisherman? The answer is none. They cannot afford to. Why should NR hunters have preference over resident hunters? USO could give to shits about an "average hunter", go to their website and look at the prices the hunts they offer. To use scare tactics like, "all NR hunting will end" is complete and total bs.

Nemont

 

[YourRoyalHighness]

Greenhorn,

Why would YOU support further discriminatory restrictions against non-resident hunters????

 

[schmalts]

O.K., i am a little confused. You guys mention Elkgunner here a few times but he never posted on this topic, what am i missing?