BALDWIN ET AL. v. FISH AND GAME COMMISSION OF MONTANA ET AL.
No. 76-1150
Supreme Court of the United States
Argued October 5, 1977—Decided May 23, 1978
436 U.S. 371
Paul A. Lenzini argued the cause and filed a brief for appellees.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents issues, under the Privileges and Immunities Clause of the Constitution‘s
I
Appellant Lester Baldwin is a Montana resident. He also is an outfitter holding a state license as a hunting guide. The majority of his customers are nonresidents who come to Montana to hunt elk and other big game. Appellants Carlson, Huseby, Lee, and Moris are residents of Minnesota.1 They have hunted big game, particularly elk, in Montana in past years and wish to continue to do so.
In 1975, the five appellants, disturbed by the difference in the kinds of Montana elk-hunting licenses available to nonresidents, as contrasted with those available to residents of the State, and by the difference in the fees the nonresident and the resident must pay for their respective licenses, instituted the present federal suit for declaratory and injunctive relief and for reimbursement, in part, of fees already рaid. App. 18-29. The defendants were the Fish and Game Commission of the State of Montana, the Commission‘s director, and its five com-
II
The relevant facts are not in any real controversy and many of them are agreed:
A. For the 1975 hunting season, a Montana resident could purchase a license solely for elk for $4. The nonresident, however, in order to hunt elk, was required to purchase a combination license at a cost of $151; this entitled him to take one elk and two deer.3
For the 1976 season, the Montana resident could purchase a license solely for elk for $9. The nonresident, in order to hunt elk, was required to purchase a combination license at a cost of $225;4 this entitled him to take one elk, one deer, one black bear, and game birds, and to fish with hook and line.5 A
B. Montana, with an area of more than 147,000 square miles, is our fourth largest State. Only Alaska, Texas, and California, in that order, are larger. But its population is relatively small; in 1972 it was approximately 716,000.8 Its 1974 per capita income was 34th among the 50 States. App. 56-57.
Montana maintains significant populations of big game, including elk, deer, and antelope. Tr. 191. Its elk population is one of the largest in the United States. Elk are prized by big-game hunters who come from near and far to pursue the animals for sport.9 The quest for big game has grown in
Owing to its successful management programs for elk, the State has not been compelled to limit the overall number of hunters by means of drawings or lotteries as have other States with harvestable elk populations. Tr. 243. Elk are not hunted commercially in Montana.11 Nonresident hunters seek the animal for its trophy value; the trophy is the distinctive set of antlers. The interest of resident hunters more often may be in the meat. Id., at 245. Elk are now found in the mountainous regions of western Montаna and are gen-
Elk management is expensive. In regions of the State with significant elk population, more personnel time of the Fish and Game Commission is spent on elk than on any other species of big game. Defendant‘s Exhibit A, p. 9.
Montana has more than 400 outfitters who equip and guide hunting parties. Tr. 295. These outfitters are regulated and licensed by the State and provide services to hunters and fishermen. It is estimated that as many as half the nonresidents who hunt elk in western Montana utilize outfitters. Id., at 248. Three outfitter-witnesses testified that virtually all their clients were nonresidents. Id., at 141, 281, 307.
The State has a force of 70 game wardens. Each warden district covers approximately 2,100 square miles. Id., at 234. To assist wardens in law enforcement, Montana has an “equal responsibility” statute.
III
In the District Court the majority observed that the elk once was a plains animal but now roams the mountains of
After satisfying itself as to standing14 and as to the existence of a justiciable controversy, and after passing comment upon the somewhat controversial subject of wild animal legal ownership, the court concluded that the State “has the power to manage and conserve the elk, and to that end to make such laws and regulations as are necessary to protect and preserve it.” Id., at 1009. In reaching this result, the majority examined the nature of the rights asserted by the plaintiffs. It observed that there were just too many people and too few elk to enable everyone to hunt the animals. “If the elk is to survive as a species, the game herds must be managed, and a vital part of the management is the limitation of the annual kill.” Ibid. Various means of limitation were mentioned, as was the fact that any one control device might deprive a particular hunter of any possibility of hunting elk. The right asserted by the appellants was “no more than a chance to engage temporarily in a recreational activity in a sister state” and was “not fundamental.” Ibid. Thus, it was not protected as a privilege and an immunity under the Constitution‘s
“We conclude that where the opportunity to enjoy a recreational activity is created or supported by a state, where there is no nexus between the activity and any fundamental right, and 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 sees fit.” Id., at 1010.
The dissenting judge took issue with the “ownership theory,” and with any “special public interest” theory, and emphasized the absence of any cost-allocation basis for the license fee differential. He described the majority‘s posture as one upholding discrimination because political support was thereby generated, and took the position that invidious discrimination was not to be justified by popular disapproval of equal treatment. Id., at 1012.
IV
Privileges and immunities. Appellants strongly urge here that the Montana licensing scheme for the hunting of elk violates the Privileges and Immunities Clause15 of
The Privileges and Immunities Clause originally was not isolated from the Commerce Clause, now in the Constitution‘s
Perhaps because of the imposition of the
The first is that of Mr. Justice Field, writing for a unanimous Court in Paul v. Virginia, 8 Wall. 168, 180 (1869). He emphasized nationalism, the proscription of discrimination, and the assurance of equality of all citizens within any State:
“It was undoubtedly the оbject of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to
constitute the citizens of the United States one people as this.”19
The second came 70 years later when Mr. Justice Roberts, writing for himself and Mr. Justice Black in Hague v. CIO, 307 U. S. 496, 511 (1939), summed up the history of the Clause and pointed out what he felt to be the difference in analysis in the earlier cases from the analysis in later ones:
“As has been said, prior to the adoption of the Fourteenth Amendment, there had been no constitutional definition of citizenship of the United States, or of the rights, privileges, and immunities secured thereby or springing therefrom. . . .
“At one timе it was thought that this section recognized a group of rights which, according to the jurisprudence of the day, were classed as ‘natural rights‘; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington.
“While this description of the civil rights of the citizens of the States has been quoted with approval, it has come to be the settled view that Article IV, § 2, does not import that a citizen of one State carries with him into another fundamental privileges and immunities which come to him necessarily by the mere fact of his citizenship in the State first mentioned, but, on the contrary, that in any State every citizen of any other State is to have the same privileges and immunities which the citizens of that State enjoy. The section, in effect, prevents a State from discriminating against citizens of other States in favor of its own.” (Footnotes omitted.)
The third and most recent general pronouncement is that authored by MR. JUSTICE MARSHALL for a nearly unanimous Court in Austin v. New Hampshire, 420 U. S. 656, 660-661 (1975), stressing the Clause‘s “norm of comity” and the Framers’ concerns:
“The Clause thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment. The origins of the Clause do reveal, however, the concerns of central import to the Framers. During the preconstitutional period, the practice of some States denying to outlanders the treatment that its citizens demanded for themselves was widespread. The fourth of the Articles of Confederation was intended to arrest this centrifugal tendency with some particularity. . . .
“The discriminations at which this Clause was aimed were by no means eradicated during the short life of the Confederation, and the provision was carried over into the comity article of the Constitution in briefer form but with no change of substance or intent, unless it was
to strengthen the force of the Clause in fashioning a single nation.” (Footnotes omitted.)
When the Privileges and Immunities Clause has been applied to specific cases, it has been interpreted to prevent a State from imposing unreasonable burdens on citizens of other States in their pursuit of common callings within the State, Ward v. Maryland, 12 Wall. 418 (1871); in the ownership and disposition of privately held property within the State, Blake v. McClung, 172 U. S. 239 (1898); and in access to the courts of the State, Canadian Northern R. Co. v. Eggen, 252 U. S. 553 (1920).
It has not been suggested, however, that state citizenship or residency may never be used by a State to distinguish among рersons. Suffrage, for example, always has been understood to be tied to an individual‘s identification with a particular State. See, e. g., Dunn v. Blumstein, 405 U. S. 330 (1972). No one would suggest that the Privileges and Immunities Clause requires a State to open its polls to a person who declines to assert that the State is the only one where he claims a right to vote. The same is true as to qualification for an elective office of the State. Kanapaux v. Ellisor, 419 U. S. 891 (1974); Chimento v. Stark, 353 F. Supp. 1211 (NH), summarily aff‘d, 414 U. S. 802 (1973). Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do. Canadian Northern R. Co. v. Eggen, supra; cf. Sosna v. Iowa, 419 U. S. 393 (1975); Shapiro v. Thompson, 394 U. S. 618 (1969). Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to those “privileges” and “immunities” bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally. Here we must
Many of the early cases embrace the concept that the States had complete ownership over wildlife within their boundaries, and, as well, the power to preserve this bounty for their citizens alone. It was enough to say “that in regulating the use of the common property of the citizens of [a] state, the legislature is [not] bound to extend to the citizens of all the other states the same advantages as are secured to their own citizens.” Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3,230) (CC ED Pa. 1825). It appears to have been generally accepted that although the States were obligated to treat all those within their territory equally in most respects, they were not obliged to share those things they held in trust for their own people. In Corfield, a case the Court has described as “the first, and long the leading, explication of the [Privileges and Immunities] Clause,” see Austin v. New Hampshire, 420 U. S., at 661, Mr. Justice Washington, sitting as Circuit Justice, although recognizing that the States may not interfere with the “right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal,”20 6 F. Cas., at 552, none-
In more recent years, however, the Court has recognized that 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
Appellants contend that the doctrine on which Corfield, McCready, and Geer all relied has no remaining vitality. We do not agree. Only last Term, in referring to the “ownership” or title language of those cases and characterizing it “as no more than a 19th-century legal fiction,” the Court pointed out that that language nevertheless expressed “‘the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.‘” Douglas v. Seacoast Products, Inc., 431 U. S., at 284, citing Toomer v. Witsell, 334 U. S., at 402. The fact that the State‘s control over wildlife is not exclusive and absolute in the face of federal regulation and certain federally protected interests does not compel the conclusion that it is meaningless in their absence.
We need look no further than decisions of this Court to know that this is so. It is true that in Toomer v. Witsell the Court in 1948 struck down a South Carolina statute requiring nonresidents of the State to pay a license fee of $2,500 for each commercial shrimp boat, and residents to pay a fee of only $25, and did so on the ground that the statute violated the Privileges and Immunities Clause. Id., at 395-403. See also Mullaney v. Anderson, 342 U. S. 415 (1952), another commercial-livelihood case. Less than three years, however, after the decision in Toomer, so heavily relied upon by appellants
Appellants have demonstrated nothing to convince us that we should completely reject the Court‘s earlier decisions. In his opinion in Coryell, Mr. Justice Washington, although he seemingly relied on notions of “natural rights” when he considered the reach of the Privileges and Immunities Clause, included in his list of situations, in which he believed the States would be obligated to treat each other‘s residents equally, only those where a nonresident sought to engage in an essential activity or exercise a basic right. He himself used the term “fundamental,” 6 F. Cas., at 551, in the modern as well as the “natural right” sense. Certainly Mr. Justice Field and the Court invoked the same principle in the language quoted above from Paul v. Virginia, 8 Wall., at 180. So, too, did the Court by its holdings in Ward v. Maryland, Canadian Northern R. Co. v. Eggen, and Blake v. McClung, all supra, when it was concerned with the pursuit of common callings, the ability to transfer propеrty, and access to courts, respectively. And comparable status of the activity involved was apparent in Toomer, the commercial-licensing case. With respect to such basic and essential activities, interference with which would frustrate the purposes of the formation of the Union, the States must treat residents and nonresidents without unnecessary distinctions.
Appellants’ interest in sharing this limited resource on more equal terms with Montana residents simply does not fall within the purview of the Privileges and Immunities Clause. Equality in access to Montana elk is not basic to the maintenance or well-being of the Union. Appellants do not—and cannot—contend that they are deprived of a means of a livelihood by the system or of access to any part of the State to which they may seek to travel. We do not decide the full range of activities that are sufficiently basic to the livelihood of the Nation that the States may not interfere with a nonresident‘s participation therein without similarly interfering with a resident‘s participation. 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.
V
Equal protection. Appellants urge, too, that distinctions drawn between residents and nonresidents are not permissible under the Equal Protection Clause of the
A repetitious review of the factual setting is revealing: The resident obviously assists in the production and maintenance of big-game populations through taxes. The same taxes provide support for state parks utilized by sportsmen, Plaintiffs’ Exhibit 1; for roads providing access to the hunting areas, Tr. 156-158, 335; for fire suppression to protect the wildlife habitat, id., at 167; for benefits to the habitat effected by the State‘s Environmental Quality Council, id., at 163-165; for the enforcement of state air аnd water quality standards, id., at 223-224; for assistance by sheriffs’ departments to enforce game laws, Defendants’ Exhibit G, p. 13; and for state highway patrol officers who assist wildlife officers at game checking stations and in enforcement of game laws. Forage support by resident ranchers is critical for winter survival. Tr. 46-47, 286. All this is on a continuing basis.
On the other side of the same ledger is the great, and almost alarming, increase in the number of nonresident hunters—in the decade of the 1960‘s, almost eight times the increase in resident hunters; the group character of much non-
All this adds up, in our view, to no irrationality in the differences the Montana Legislature has drawn in the costs of its licenses to hunt elk. The legislative choice was an economic mеans not unreasonably related to the preservation of a finite resource and a substantial regulatory interest of the State. It serves to limit the number of hunter days in the Montana elk country. There is, to be sure, a contrasting cost feature favorable to the resident, and, perhaps, the details and the figures might have been more precisely fixed and more closely related to basic costs to the State. But, as has been noted, appellants concede that a differential in cost between residents and nonresidents is not in itself invidious or unconstitutional. And “a statutory classification impinging upon no fundamental interest . . . need not be drawn so as to fit with precision the legitimate purposes animating it. . . . That [Montana] might have furthered its underlying purpose more artfully, more directly, or more completely, does not warrant a conclusion that the method it chose is unconstitutional.” Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 813 (1976).23
ed.). We fail to see how these federal aspects transform a recreational pursuit into a fundamental right protected by the Privileges and Immunities Clause, or how they impose a barrier to resident-nonresident differentials. Congress knows how to impose such a condition on its largess when it wishes to do so. See
It is so ordered.
MR. CHIEF JUSTICE BURGER, concurring.
In joining the Court‘s opinion I write separately only to emphasize the significance of Montana‘s special interest in its elk population and to point out the limits of the Court‘s holding.
The doctrine that a State “owns” the wildlife within its borders as trustee for its citizens, see Geer v. Connecticut, 161 U.S. 519 (1896), is admittedly a legal anachronism of sorts. See Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977). A State does not “own” wild birds and animals in the same way that it may own other natural resources such as land, oil, or timber. But, as noted in the Court‘s opinion, ante, at 386, and contrary to the implications of the dissent, the doctrine is not completely obsolete. It manifests the State‘s special interest in regulating and preserving wildlife for the benefit of its citizens. See Douglas v. Seacoast Products, Inc., supra, at 284, 287. Whether we describe this interest as proprietary or otherwise is not significant.
We recognized in Toomer v. Witsell, 334 U.S. 385, 401-402 (1948), that the doctrine does not apply to migratory shrimp located in the three-mile belt of the marginal sea. But the elk involved in this case are found within Montana and remain primarily within the State. As such they are natural resources of the State, and Montana citizens have a legitimate interest in preserving their access to them. The Court acknowledges this interest when it points out that the Montana elk supply “has been entrusted to the care of the State by the people of Montana,” ante, at 388, and asserts the continued vitality of
McCready v. Virginia, supra, made it clear that the Privileges and Immunities Clause does not prevent a State from preferring its own citizens in granting public access to natural resources in which they have a special interest. Thus Montana does not offend the Privileges and Immunities Clause by granting residents preferred access to natural resources that do not belong to private owners. And Montana may give its residents preferred access to Montana elk without offending the Privileges and Immunities Clause.
It is not necessary to challenge the cases cited by the dissent, post, at 405, which make clear that a State does not have absolute freedom to regulate the taking of wildlife within its borders or over its airspace. A State may not regulate the killing of migratory game birds in a way that frustrates a valid treaty of the United States entered into pursuant to the
It is the special interest of Montana citizens in its elk that
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE MARSHALL join, dissenting.
Far more troublesome than the Court‘s narrow holding—elk hunting in Montana is not a privilege or immunity entitled to protection under
It is true that because the Clause has not often been the subject of litigation before this Court, the precise scope of the protection it affords the citizens of each State in their sister States remains to be defined. Much of the uncertainty is, no doubt, a product of Mr. Justice Washington‘s exposition of its scope in Corfield v. Coryell, 6 F. Cas. 546, 551 (No. 3,230) (CC ED Pa. 1825), where he observed:
“[W]hat are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” (Emphasis added.)
Among these “fundamental” rights he included “[p]rotection by the government; . . . [t]he right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state.” Id., at 551-552. These rights, only the last of which was framed in terms of discriminatory treatment, were to be enjoyed ”by the citizens of each state, in every other state. . . .” Id., at 552. As both the italicized language and the list of rights designed as falling within the compass of
That Mr. Justice Washington thought
“Behind the 1825 Corfield opinion lay the nineteenth century controversy over the status of ‘natural rights’ in constitutional litigation. Some judges had supposed an inherent limitation on state and federal legislation that compelled courts to strike down any law ‘contrary to the first great principles of the social compact.’ They were the proponents of the natural rights doctrine which, without specific constitutional moorings, posited ‘certain vital principles in our free republican governments, which will determine and overrule an apparent abuse of legislative powers.’
“Corfield can be understood as an attempt to import the natural rights doctrine into the Constitution by way of the privileges and immunities clause of article IV. By attaсhing the fundamental rights of state citizenship to the privileges and immunities clause, Justice Washington would have created federal judicial protection against state encroachment upon the ‘natural rights’ of citizens.” L. Tribe, American Constitutional Law 405-406 (1978) (footnotes omitted).
What is surprising, however, is the extent to which Corfield‘s
Mr. Justice Roberts’ analysis of the
Less than a decade after Hague, Toomer v. Witsell, supra, embraced and applied the Roberts interpretation of the Clause. In Toomer, a South Carolina statute that required nonresidents to pay a fee 100 times greater than that paid by residents for a license to shrimp commercially in the three-mile maritime belt off the coast of that State was held to be violative of the Clause. After stating that the Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy,” 334 U.S., at 395, the Court set out the standard against which a State‘s differential treatment of nonresidents would be evaluated.
“Like many other constitutional provisions, the privileges and immunities clause is not an absolute. It does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other
States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them. The inquiry must also, of course, be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures.” Id., at 396 (emphasis added) (footnote omitted).
Unlike the relatively minimal burden of rationality South Carolina would have had to satisfy in defending a law not infringing on a “fundamental” interest against an equal protection attack, see Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976), the State could not meet the plaintiffs’ privileges and immunities challenge simply by asserting that the discrimination was a rational means for fostering a legitimate state interest. Instead, even though an important state objective—conservation—was at stake, Toomer held that a classification based on the fact of noncitizenship was constitutionally infirm “unless there is something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed.” 334 U.S., at 398. Moreover, even where the problem the State is attempting to remedy is linked to the presence or activity of nonresidents in the State, the Clause requires that there be “a reasonable relationship between the danger represented by non-citizens, as a class, and the discrimination practiced upon them.” Id., at 399.
Toomer was followed in Mullaney v. Anderson, 342 U.S. 415 (1952). In Mullaney, the scheme employed by the Territorial Legislature of Alaska for the licensing of commercial fishermen in territorial waters, which imposed a $5 license fee on resident fishermen and a $50 fee on nonresidents, was found invalid under the Clause. Although the Court reaffirmed its observation in Toomer that a State may “charge non-residents a
Neither Toomer nor Mullaney cited Corfield or discussed whether commercial fishing was the type of “fundamental” right entitled to protection under Mr. Justice Washington‘s view of the Privileges and Immunities Clause. Although the Court in Toomer did “hold that commercial shrimping in the marginal sea, like other common callings, is within the privileges and immunities clause,” 334 U.S., at 403, its statement to this effect was conclusory and clearly secondary to its extensive analysis of whether South Carolina‘s discrimination against nonresidents was properly justified. The State‘s justification for its discrimination against nonresidents was also the focus of the privileges and immunities analysis in Doe v. Bolton, 410 U.S. 179 (1973), which summarily added “medical services” to the panoply of privilеges protected by the Clause and held invalid a Georgia law permitting only Georgia residents to obtain abortions within that State.4 It is true that Austin v. New Hampshire, 420 U.S. 656 (1975), cited Corfield for the proposition that discriminatory taxation of the nonresident was one of the evils the Clause was designed to protect against; but “an exemption from higher taxes” was the one privileges and immunities right that Mr. Justice Washington framed in terms of discriminatory treatment. As in Toomer, Mullaney, and Bolton, the Court‘s
I think the time has come to confirm explicitly that which has been implicit in our modern privileges and immunities decisions, namely that an inquiry into whether a given right is “fundamental” has no place in our analysis of whether a State‘s discrimination against nonresidents—who “are not represented in the [discriminating] State‘s legislative halls,” Austin v. New Hampshire, supra, at 662—violates the Clause. Rather, our primary concern is the State‘s justification for its discrimination. Drawing from the principles announced in Toomer and Mullaney, a State‘s discrimination against nonresidents is permissible where (1) the presence or activity of nonresidents is the source or cause of the problem or effect with which the State seeks to deal, and (2) the discrimination practiced against nonresidents bears a substantial relation to the problem they prеsent. Although a State has no burden to prove that its laws are not violative of the Privileges and Immunities Clause, its mere assertion that the discrimination practiced against nonresidents is justified by the peculiar problem nonresidents present will not prevail in the face of a prima facie showing that the discrimination is not supportable on the asserted grounds. This requirement that a State‘s unequal treatment of nonresidents be reasoned and suitably tailored furthers the federal interest in ensuring that “a norm of comity,” Austin v. New Hampshire, supra, at 660, prevails throughout the Nation while simultaneously guaranteeing to the States the needed leeway to draw viable distinctions between their citizens and those of other States.
II
It is clear that under a proper privileges and immunities analysis Montana‘s discriminatory treatment of nonresident big-game hunters in this case must fall. Putting aside the
The second possible justification for the fee differential Montana imposes on nonresident elk hunters—the one presented in the District Court and princiрally relied upon here—is a cost justification. Appellants have never contended that the Privileges and Immunities Clause requires that identical fees be assessed residents and nonresidents. They recognize that Toomer and Mullaney allow additional charges to be made on nonresidents based on both the added enforcement costs the presence of nonresident hunters imposes on Montana and the State‘s conservation expenditures supported by resident-borne taxes. Their position throughout this litigation has been that the higher fee extracted from nonresident elk hunters is not a valid effort by Montana to recoup state expenditures on their behalf, but a price gouged from those who can satisfactorily pursue their avocation in no other State in the Union. The licensing scheme, appellants contend, is simply an attempt by Montana to shift the costs of its conservation efforts, however commendable they may be, onto the shoulders of nonresidents who are powerless to help themselves at the ballot box. The District Court agreed, finding that “[o]n a consideration of [the] evidence . . . and with due regard to the presumption of constitutionality . . . the ratio of 7.5 to 1 cannot be justified on any basis of cost allocation.” Montana Outfitters Action Group v. Fish & Game Comm‘n, 417 F. Supp. 1005, 1008 (Mont. 1976). This finding is not clearly erroneous, United States v. United States Gypsum Co., 333 U.S. 364, 394-395 (1848), and the Court does not intimate otherwise. Montana‘s attempt to cost-justify its discriminatory licensing practices thus fails under the second prong of a correct privileges and immunities
The third possible justification for Montana‘s licensing scheme, the doctrine of McCready v. Virginia, 94 U.S. 391 (1877), is actually no justification at all, but simply an assertion that a State “owns” the wildlife within its borders in trust for its citizens and may therefore do with it what it pleases. See Geer v. Connecticut, 161 U.S. 519 (1896). The lingering death of the McCready doctrine as applied to a State‘s wildlife, begun with the thrust of Mr. Justice Holmes’ blade in Missouri v. Holland, 252 U.S. 416, 434 (1920) (“[t]o put the claim of the State upon title is to lean upon a slender reed“) and aided by increasingly deep twists of the knife in Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 11-14 (1928); Toomer v. Witsell, 334 U.S., at 402; Takahashi v. Fish & Game Comm‘n, 334 U.S. 410, 421 (1948); and Kleppe v. New Mexico, 426 U.S. 529, 545-546 (1976), finally became a reality in Douglas v. Seacoast Products, Inc., supra, at 284, where MR. JUSTICE MARSHALL, speaking for the Court, observed:
“A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of ‘owning’ wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. . . . The ‘ownership’ language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing ‘the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.’ Toomer v. Witsell, 334 U.S., at 402 . . . . Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution.”
Notes
“Indeed, without some provision of the kind removing from the citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.
“But the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permissiоn, express or implied, of those States. The special privileges which they confer must, therefore, be enjoyed at home, unless the assent of other States to their enjoyment therein be given.” 8 Wall., at 180-181.
“The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless tо such restraints as the government may justly prescribe for the general good of the whole.” 6 F. Cas., at 551-552.