*1 HUGHES v. OKLAHOMA Argued January 9, April No. 77-1439. 1979 Decided *2 J., opinion delivered the Court, Brennaet, of the in which StewaRT, JJ., joined. White, Marshall, BlackmuN, Powell, SteveNS, J., filed dissenting a opinion, J., joined, Behnquist, which C. Burger, post, p. 339. Robert argued M. Helton the cause and filed a brief for appellant.
Bill J. Bruce argued appellee. for cause him on the With Larry brief was Derryberry, Attorney General Oklahoma. Mr. Justice delivered Brennan opinion of the Court. question presented for decision is whether Stat., Okla. Tit. 4-115 (B) § (Supp. 1978), the Commerce violates Clause, I, 8,§ cl. of3, Art. Constitution, United States “ insofar as provides person o may transport ship or [n] minnows for sale outside the state which pro- were or seined cured within the waters ...”1 provides Section 4-115 in full: person may
“A. ship No transport or minnows for sale into this state from an outside source having without procured first a license for such from the Director. person
“B. No transport ship minnows for sale outside the state operate Appellant Hughes William holds Texas license a An a Tex. commercial minnow business near Wichita Falls, violating arrested him on a game ranger charge Oklahoma Falls (B) by transporting 4-115 from Oklahoma to Wichita § from minnow dealer purchased a load of natural minnows Hughes’ to do in Oklahoma. defense that licensed business repugnant (B) § A-115 was unconstitutional because it was convicted and rejected, Commerce Clause was and he was affirmed, Appeals fined. The Oklahoma of Criminal Court stating: Supreme
“The United has held States Court numerous fish within occasions that the wild animals and border owned are, capable ownership, state’s so far as sovereign the state common capacity *3 procured which were except seined or within the this state waters of that: Nothing any person leaving
“1. contained prohibit herein shall from (3) possessing three minnows; dozen or less Nothing “2. prohibit contained shipment herein shall and min- sale regularly raised hatchery. nows in a licensed commercial minnow “C. The fee for a license under this section shall be: "1. residents, For One ($100.00); Hundred Dollars “2. nonresidents, For ($300.00). Three Hundred Dollars Any person “D. any violating provisions convicted of of this section punished by shall be a fine of ($100.00) not less than One Hundred Dollars nor more than ($200.00).” Two Hundred Dollars prohibition against transportation out of State for sale thus not does apply hatchery-bred minnows, only but to “natural” minnows seined or procured from waters within the State. (B)
Section
part
4r-115
of the Oklahoma Wildlife Conservation Code.
provision
Another
requires
of that Code
persons
have a minnow
they
dealer’s
lawfully
license before
can
trap
seine or
minnows within the
except for their own
§4^11(5
use as
(Supp. 1978), but no
State —
bait —
imposed
limit is
on the number of
may
minnows a licensed dealer
take
from state
any
waters. Nor is
regulation
there
except
(B)
4r-115
con-
§
cerning
disposition
lawfully acquired
minnows; they may be sold
any
within
person
Oklahoma to
any
may
for
purpose, and
be taken
any
out of the State
purpose except
for
sale.
people.
benefit of
all
Because of such
ownership,
in the exercise
police
of its
power,
may regulate
the state
and control
the taking, subsequent
property
use and
rights
may
acquired
be
therein. Lacoste Depart-
Conservation,
ment
;
545 . . . Geer
v. State
Connecticut,
Lacoste,
I The simple few words of the Commerce Clause —“The Con- gress shall have Power regulate ... To . . Commerce among . the several States . . .”—reflected central concern of the Framers that was an immediate reason calling the Consti- Convention: tutional the conviction that order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization plagued that had relations among Colonies and later among the States under the Articles of Con- 326
federation. Sons, See H. P. & Hood Mond, Inc. v. Du 336 U. S. 525, 533-534 (1949). The Commerce Clause has accord- ingly been interpreted by this Court not only an authoriza- tion for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction permissible regulation.2 state defining cases scope permissi- ble regulation in areas of congressional silence reflect an often controversial evolution of rules accommodate federal and state interests.3 Geer v. Connecticut was decided rela- tively early in that evolutionary process. holdWe time has revealed the error of the early resolution reached in that case, and accordingly Geer is today overruled. 2 “The Commerce Clause is one of the prolific most sources national power and equally an prolific source of conflict legislation with of the state. While the Constitution in Congress vests regulate among commerce the states, it say does not what may states not do congressional absence of action, nor how to draw the line between what is and what is not among commerce Perhaps states. even more by interpretation than of its written word, Court has advanced solidarity and prosperity of this Nation meaning given has great to these silences Constitution.” H. Sons, P. Hood &
Inc. Du Mond,
v.
S.,U.
at 534-535.
Philadelphia v.
Jersey,
New
(1978),
621-623
made clear
there is no “two-tiered definition of commerce.” The definition of
“commerce” is the same when relied on to strike down or restrict state
legislation as when relied on
support
some exertion of federal control
or regulation.
3See,
g.,
e.
Gibbons
Ogden,
Wheat.
(1824);
Willson v.
Black Bird Creek
Co.,
Marsh
2 Pet.
(1829); Cooley
v. Board of
Wardens,
A
Geer
against
sustained
a
challenge
Commerce Clause
statute forbidding the transportation
beyond the
State
game birds that
lawfully
had been
killed within the State.4
The decision rested on the holding
no
interstate com-
merce was involved. This
conclusion followed
turn from
the view that the State had the power,
representative
for its
citizens, who
“owned”
common all wild animals within the
State,
only
control not
taking
game
but also
ownership of game that had been lawfully
to posses-
reduced
By
sion.5
virtue of
power,
qualify
Connecticut could
ownership of
game
wild
taken within the State
by,
exam-
ple, prohibiting its removal from the
“The
State:
common
ownership imports the right to
keep
property,
if the sov-
ereign so chooses, always within
jurisdiction
for every pur-
pose.”
"... per- state law game, in which the being admitted, the commerce game commerce, the restriction necessarily only since mitted, internal was along went with subject of external commerce should not become it S., at 530-532. part it.” 161 U. grant and was a of Rehnquist Geer as an suggests that the in offered Court Our Brother 15-page (in paragraph of the final basis for its decision” “alternative “State, police power, could act the exercise of its opinion) that in though supply, interstate preserve people a food even for its valuable indirectly Post, n. 3. That remotely affected.” at 340 was commerce sentence basis,” however, is made clear was not an “alternative this Rehnquist: quoted by Brother our not adequate people police regulation its protect
“The of a State food, although doing . . of articles of . so against the adulteration remotely affected, necessarily carries with it might be commerce belongs com- preserve supply food which power to of a like existence subject only State, become the people which can to all the mon object qualified way, never be the ownership and which can in a subject to the con- except the State and with the consent commerce public good.” impose it deem best to ditions which added). (emphasis independent “alternative basis” of the “state owner- Thus, rather than an “preservation rationales, of a commerce” ship” “no any In premised on those rationales. rationale was resource” valuable basis,” same this rationale has met the event, even if an “alternative primary infra, 329-331, and n. 9. rationale. See fate as Geer’s any ani- Their view was state commerce.” that “[w]hen or other lawfully purposes killed for of food mal ... an article of use man, commerce, uses becomes to the exclusion be limited to the citizens of one State cannot of citizens another State.” B increasingly prevailed The view of the Geer dissenters analysis only Geer subsequent Indeed, cases. not has the *7 game wild rejected been when natural resources other than game of have regulations were but even state wild involved, subject been Clause held to the of the Commerce strictures pretext under the of distinctions from Geer. began only years of Geer decided. erosion after it was
A Oklahoma challenge Commerce Clause was addressed to an designed beyond the prohibit transportation statute the gas produced by State of natural wells within the State. Co., West Natural Gas v. Kansas S. 229 reasoning parallel Geer, urged Based on Oklahoma that right gas citizens, its to “conserve” the for the use of own stressing supply the limited and the absence of alternative of fuel within the sources State. the a Nevertheless, Court, Geer, of passage the dissents condemned reminiscent the protectionist obvious motive the Oklahoma and statute arguments a rejected powerful the State’s with reaffirmation vision of Framers: the the “The statute of Oklahoma a recognizes [gas] to be sub- ject prohibit of intrastate seeks to from commerce, but it subject being interstate is commerce, of its If purpose conservation. the States have such ... power singular might Pennsylvania situation result. might keep coal, the Northwest its timber, mining id., (Field, J., dissenting); (Harlan, J., 7 161 U. at 541 see at dissenting). Id., id., (Field, J., dissenting); 541-542 (Harlan, see at 543-544 J., dissenting). why may products not the
States their minerals. And en- brought principle? of the field be within the Thus inter- its influence on larged, enlargement, without that To what pointed state commerce need not be out. consequences power does such tend? If one State has all by retaliated it, it; embargo States have be and commerce will lines. embargo, be halted at state yet And we have said that 'in foreign matters In are no lines.’ such commerce there appears commerce, instead new States, any and a new a welfare which transcends welfare, say State. rather us But let constituted of it welfare of all of each States State is made greater by a division of its natural and resources, every with created, other every and those of other State, State with it. This was result, as it is the purpose, of the interstate commerce clause of the Constitution of If United States. there is to a turning be backward must be done authority of another instrumen- tality than a court.” 221 S.,U. at 255-256.
The distinguished Court discriminatory prohibatory regula- tions offensive to the Commerce such Clause, as the Oklahoma from a statute, valid police "exercise of power regulate to taking of gas” natural applica- was "universal justified by tion and the nature of gas and which allowed its transportation Id., to other states.” id., 257; see at 252-254 (distinguishing Ohio Indiana, Oil Co. 177 v. 190 U. S. (1900)).
In subsequent Commerce challenges Clause to regula state exports tion of of natural West resources, analysis emerged as the approach. dominant g., Pennsylvania See, e. West Virginia, 262 U. 598-600 (1923);9 H. P. 553, S. Sons, Hood & 9 inconsistency The between the result this case and that in Geer was not overlooked the dissenting Pennsylvania Justices. See v. West Virginia, at 601 (Holmes, J., dissenting). Significantly,
331 is Today’s principle Mond, (1949). Du Inc. v. Church, Inc., 137, Pike v. Bruce stated (1970): effectuate evenhandedly to regulates the statute
“Where inter- effects on and its public local legitimate interest, a upheld will be it only incidental, are state commerce clearly is commerce imposed on such the burden unless If ... local benefits. putative to the excessive relation question then purpose found, local legitimate of the burden extent And the degree. one of becomes nature depend will of course that will be tolerated be could on whether it involved, and of the local interest on interstate activi- impact awith lesser as well promoted omitted.) (Citations ties.” strike Term to only last employed formulation was
This natural resource “conserve” the attempt Jersey’s New down of waste disposal for the the State landfill areas within Jersey, New Philadelphia v. within the State. generated of vir point analysis has also been eroded Geer wild animals. regulation of involving in cases extinction tual Geer’s, over theory a State’s challenge The first Holland, 252 U. S. in Missouri came wild animals theory relying on the Missouri, (1920). The State Bird Migratory attacked ownership animals, wild with the State’s interfered ground that Treaty Act on the Writing its boundaries. animals within wild over control proper the Act upheld Holmes Mr. Justice Court, BjehNquist in his discussion this dissent relies on Brother our of a natural “preservation valuable of Geer—the basis” “alternative 340-341, Court supra; post, n. 3. The rationale. See n. resource” *9 West, expressly Virginia, Pennsylvania like v. West opinion in commerce” rationale. along the “no interstate rejected argument with S., at 599-600. U. 262 pass- commented He power. treatymaking the of
exercise claim put the “To rationale: Geer of artificiality the on the ing a reed.” slender upon is to lean title upon the State of 434. at S., (1928), 278 U. Haydel, Packing Co. v.
Foster-Fountain statute A Louisiana directly. more Geer even undermined shrimp taken of the beyond State transportation forbade rem had been shells heads and until Louisiana waters Geer state-control- clearly relied on the The statute oved.10 shrimp lawfully taking Anyone rationale.11 of-ownership which “a interest granted qualified was waters Louisiana from and shell head Only after the the State.” may be sold within Packing passed in Co. was challenged in Foster-Fountain The law take such encouraged may to have been legislature July The 1926. Conservation, Dept. language in Lacoste Louisiana by certain action of by of Oklahoma Court language relied on (1924), also tax upheld Louisiana “severance” in this case. Lacoste Appeals Criminal in the alligators taken furbearing animals and of wild the skins all that: proposition for the cited Geer The Court State. capable of owner- are, so far as borders wild animals within “The benefit capacity for the common sovereign in its the State ship, owned of its ownership, in the and exercise of such people. Because all of subsequent taking, use may regulate control the and power the police State 549. acquired 263 U. therein.” rights that be property “by uphold tax virtue expressly declined to Nevertheless, Lacoste condition, removal prohibit, to and therefore State issue, the than reach this Ibid. Rather game the State.” from wild designed to con- police regulation measure as valid upheld Court all skins noting applied tax animals, that the protect wild serve shipped out. State, kept within the State whether within the taken actually Geer, Lacoste is Thus, its citation of despite Id., at 550-551. dis- following the of the Justices views compatible the cases with more senting in Geer. all part declare follows: “To the Act read preamble property to be the in the waters of State shrimp parts thereof of their provide and extent Louisiana, and to manner the State Packing Co. v. Foster-Fountain ownership private reduction to Haydel, S., at 5 n. *10 possessor
had been removed within the did the taker State ‘beyond acquire right ship “title and to sell the and the same ” the or reservation.’ State, the without restriction limit[s] 8. S., shrimp the of “title” to the and concen- Ignoring niceties trating purposes statute, instead on the and effects of the Packing Foster-Fountain economic struck down the statute as analy- protectionism to abhorrent the Commerce Clause. in employed gas sis resembled that the natural which cases, id., were with dis- approval, cited 13.12 Geer was 10-11, game on the tinguished ground part that there of the “[n]o by permitted was the statute to become article of inter- an commerce.” 278 at 12.13 Geer to cases Limiting involving complete embargoes on commerce in a interstate wild animal created the bur- anomalous result that the most enjoyed densome laws protection the most from Commerce Clause attack. Packing’s
Foster-Fountain implicit away from Geer’s shift “ownership” analysis formalistic explicit became in Toomer v. Witsell, 334 which (1948), struck down as violations of the Commerce Privileges Clause and the 12The Court proposition cited these cases for the State “[a] prevent privately without being owned articles of trade from shipped and ground they sold interstate commerce on the are required satisfy they by local demands or because needed the are Id., people of the State.” at 10. 13“As representative people, might its the State have retained shrimp consumption permitting use therein. . . . But shrimp products to be taken and all shipped thereof to be and sold commerce, necessarily and, State releases its hold as to shrimp definitely so taken, Clearly terminates its control. such authori taking pursuance zation and the put upon thereof an end trust which State is deemed to shrimp own or control the for the benefit of people. And taking shrimp those authority under the Act necessarily thereby become rights private ownership entitled to the Id., protection of the commerce clause.” at 13. discriminating Immunities Clause Carolina certain South laws against fishermen: out-of-state commercial ownership theory, generally
“The whole is now fact, *11 regarded legal fiction shorthand expressive as but a to importance people power to its a have that State preserve regulate exploitation important and of an necessary resource. And there is no conflict between policy that vital consideration and the constitutional its other command that the State exercise like power, that powers, against so as not to discriminate without reason citizens of other States.”
Although Privileges stated reference to Immuni- and ties Clause to challenge, reasoning equally applicable is the Commerce Douglas Clause Prod- challenge.14 Seacoast ucts, Inc., 431 265 (1977), dispelled any U. on that S. doubts rejecting score. In argument Virginia’s “ownership” that swimming fish in its empowered waters territorial State fishing by federally to forbid ships by licensed non- owned residents while permitting to Products fish, residents Seacoast explicitly analysis embraced the of the Geer dissenters:
“A State does not stand in position the same owner as the private game preserve a pure fantasy it is to talk of 'owning’ wild fish, Neither birds, animals. nor States the Federal a any more than Government, hopeful or hunter, fisherman has to title these creatures they until are possession reduced to by capture.... skillful Connecticut, Geer v. (1896) 539-540 519, Orbeck, See Hicklin v. 531-532 The Court distinguished Packing Geer on the same basis used in Foster-Fountain Co., Comm’n, 404-406. Takahashi v. Fish & Game (1948), 420-421 day decided Toomer, the same as reviewed distinguishing cases questioning Geer and found the State's claim to inadequate “ownership” justify to a ban on fishing commercial alien residents. 'ownership’ language dissenting).
(Field, J., understood be by appellant must as those cited cases such expressing fiction 19th-century legal no more than have State people importance 'the important of an exploitation regulate preserve analysis, modern Under [Citing Toomer.] resource.’ has exercised the State simply whether question and Con- federal laws with the conformity police power 284.15 S.,U. stitution.”
C
present
modern
us is
times
the first
The case before
conclude
now
Geer.16 We
essentially on all
with
fours
facts
regula
Clause to
Commerce
under the
challenges
according to
be considered
should
of wild animals
tions
*12
natural
other
regulations
applied
state
general rule
same
thusWe
overrule Geer.
expressly
therefore
resources,
practical
conformity with
into
framework
analytical
bring our
anomaly,
also eliminates
Overruling Geer
realities.
Geer,
statutes
distinguishing
by the decisions
created
commerce
interstate
on
extreme burdens
the most
imposing
from
immune
the most
embargoes) were
(essentially total
in
adopt
rule we
general
time,
same
challenge. At the
not
ways
preserving,
ample allowance
makes
this case
15
recognized that
States’
has
years
the Court
. . .
“In more recent
'own,’
they
things
claim to
controlling those
regulating and
interest
compel the
not
States
wildlife,
by
means absolute.
including
is
no
wildlife, to their
resources, even
benefits of their
.their
confinement
impedes interstate
hoarding and confinement
such
whenever
people
own
;
Haydel,
(1928)
Packing
1
Co. v.
U. S.
278
Foster-Fountain
commerce.
West v. Kansas
Virginia,
inconsistent with legitimate Commerce Clause, the concerns for protection conservation and of wild animals underlying the 19th-century legal fiction of state ownership.
II turnWe then question to the whether the burden imposed on interstate game by commerce wild (B) per § 4-115 is general missible under the rule precedents our articulated governing other types of g., commerce. Pike e. Bruce See, Church, Inc., 397 U. S., supra, at 142, quoted, at 331. Under that general rule, inquire we must (1) whether challenged statute regulates evenhandedly with “incidental” only effects on interstate or commerce, against discriminates interstate commerce either on face in practical (2) whether effect; the statute serves a legitimate local so, if and, purpose; (3) whether alternative means could promote pur this local pose as well without discriminating against com merce. The burden to show discrimination rests on the party challenging validity of the but statute, discrim “[w]hen ination against commerce ... demonstrated, the burden falls justify State to it both in terms of local ben efits flowing from the statute and the non unavailability of discriminatory alternatives adequate preserve, in the local terests at stake.” Hunt Washington Apple Advertising Comm’n, 432 U. S. when Furthermore, considering purpose of a challenged statute, this Court is not bound *13 name, description “[t]he or characterization given it by legislature the or the courts State,” the of but will determine for itself practical impact of law. Lacoste v. Louisiana Dept. Conservation, 263 (1924); of see Foster-Fountain Packing del, Hay Co. v. 10; S.,U. at Pike v. Church, Bruce Inc., supra.
Section 4-115 (B.) on its face against discriminates inter- state commerce. It the transportation forbids of natural min- “overtly of and thus purposes sale, for of the State
nows out at State’s commerce [the] of interstate the flow blocks 624. New Jersey, Philadelphia borders.” defect, be a fatal by may itself facial discrimination Such protec- “the evil because purpose, of the State’s regardless legislative as well as legislative means reside can tionism facial discrimina- a minimum such Id., 626.17 At ends.” legitimate scrutiny any purported the strictest tion invokes nondiscriminatory absence purpose local alternatives. local legitimate (B) A-115 serves argues §
Oklahoma meas- a conservation as “readily apparent in that it is purpose main- interest 8. The State’s Appellee for Brief ure.” avoiding by waters balance ecological taining the qualify may well of minnows numbers of inordinate removal inter- We consider States’ purpose. local legitimate aas of wild animals protection in conservation ests pro- interests the States’ similar to purposes local legitimate g., e. safety See, of their citizens. health tecting the Co., Chicago, R. & P. R. I. Firemen v. in “conservation” state interests legitimate scope
But A Geer. under was analysis than it under this narrower so sovereign if the property, longer “keep may no State every purpose.” jurisdiction always within its chooses, of state fiction Connecticut, at 530. The 161 U. S., Geer outside used to force those longer be may no ownership animals “conserving” the wild full costs bear State nondiscriminatory when-equally effective its borders within available. measures are conservation alternative, discriminatory choosing the least Far from “17 accom purpose, not be ultimate hatever State’s] [a [W] coming from outside of commerce discriminating against articles plished reason, origin, to treat apart from their is some there unless State Jersey, S., at 626-627. Philadelphia differently.” v. New them *14 way Oklahoma has chosen to “conserve” its in the minnows overtly against that most discriminates commerce. The no places State limits the numbers of minnows that taken by can be nor limit dealers; licensed minnow does it in any way may how these minnows be of within the disposed commercially State.18 Yet it transportation any forbids the significant number of natural minnows of the State out sale.19 (B) certainly Section is not 4-115 a “last ditch” attempt at after nondiscriminatory conservation alternatives proved have unfeasible. It is rather choice of most discriminatory though nondiscriminatory means even alterna- likely tives would seem to fulfill purported legiti- the State’s purpose mate local more effectively.20 We therefore (B) § hold 4-115 repugnant to Commerce Clause.
Ill overruling of Geer powerless does not leave the States protect and conserve wild animal life within their borders. Today’s decision makes clear, however, pro- that States 1, supra. See n. (B) Section 4-115 apply persons does not transporting three dozen or less natural supra. minnows outside the State. See n. 20In brief, argues, apparently time, Oklahoma for the first against discrimination out-of-state sales of justified natural minnows is purchased because minnows likely in the State are more to be used for bait state waters. Appellee Brief for 3. The State contends that minnows “returned” to state waters as bait do upset ecological not balance as much as those that never “return.” The appearance late of this argument and the total any absence support questionable record for the assumptions factual give that underlie it post it the flavor of a hoc ration alization. The certainly State’s bare inadequate assertion is to survive scrutiny invoked the facial (B). any case, discrimination of 4r-115 In § Oklahoma itself concedes that the “return” of natural minnows as bait is irrelevant aspects most preserving ecological balance. Brief for Appellee 4.
mote legitimate purpose only ways consistent with the principle basic that “our economic Nation,” is the unit H. Hood Sons, P. & Inc. Mond, v. Du 336 U. at 537, that when a wild animal “becomes an article of . . commerce . its use cannot be limited to the citizens of one State to the exclusion of citizens of another State.” Connecticut, Geer v. supra, at 538 (Field, J., dissenting).
Reversed. Mr. Justice with Rehnquist, whom The Chief Justice joins, dissenting.
This Court’s seeming preoccupation in years recent with relating laws I must, wildlife suspect, appear curious to casual observers of this institution.1 It is no more curious, however, than this pronouncements Court’s recent on the validity of Geer v. Connecticut, 161 U. 519 S. For (1896). less year than one ago we unreservedly princi- reaffirmed the ples announced in Geer. Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 386 (1978). Today, Court over- rules that decision. I Because disagree with the Court’s overruling of Geer and holding that Oklahoma’s relating law to the sale of minnows violates I Commerce Clause, dissent.
In its headlong rush
Geer,
to overrule
the Court character-
izes that decision as “rest[ing] on the holding that
inter-
no
state commerce was
Ante,
involved.”
at 327.
It
true that
one of the rationales
relied on
Geer
Court was
State could exercise
control
the killing and
ownership of animals
naturae
prohibit
game
such
ferae
1 See,
g.,
e.
Hill,
TV A v.
(1978) (snail
153
S.
darters); Baldwin
v. Montana Fish & Game Comm’n,
(1978)
(elk); Douglas
U. S. 371
Seacoast Products, Inc., 431
(1977)
U. S. 265
(menhaden); Kleppe v. New
Mexico, 426 U.
(wild
(1976)
and burros).
horses
from leaving
prevent
the borders of
and thus
the State
game from ever becoming
objects
of interstate commerce.
S.,U.
at
530-532. Since the
Geer was of the
Court
view that
challenged
effectively prevented certain
statute
game from entering the stream of
there
commerce,
could be no
for a
challenge
basis
Commerce Clause
to the
Id.,
State’s law.
I
532.2
do
dispute
not
the Court’s
rejection of this theory; as
points
out,
Court
this rationale
rejected
was
long
today. Ante,
before
329;
see
v.West
Kansas Natural
Co.,
Gas
My objection
*16
is that
this line of
while
reasoning,
undoubtedly considered
important by
Geer,
the
in
majority
unnecessary
is
to sustain
3
that decision and is unneeded
disposition
in the
pres-
of the
2“The fact
that
may
internal commerce
be distinct from interstate
commerce, destroys
theory
upon
whole
argument
which the
of the
plaintiff
proceeds.
in error
power
The
of the
killing
State to control the
of
ownership
and
game
in
being admitted, the commerce in game, which
the state
permitted,
law
only
necessarily
was
commerce,
internal
since the
restriction
that
should not
subject
become the
of external commerce
along
went
grant
with the
part
and was a
Connecticut,
it.” Geer v.
161
S.,U.
at 532.
3The Court in
assigned
Geer
an alternative basis for its
The
decision.
Court
State,
held that a
in the
police
power,
exercise
its
act to
could
preserve
its people
a valuable food supply,
though
even
com
merce
remotely
was
indirectly
and
affected.
“Aside from the authority of
State,
derived
from
common own
ership of game and the trust for the
people
benefit of its
which the State
exercises in relation thereto, there is another
power
view of the
of the
State
regard
in
property
game,
equally
which is
The
conclusive.
right
preserve
game flows from the undoubted existence in the State
police
of a
power to
end,
may
that
which
be none
efficiently
the less
called
play,
into
by
because
doing so
interstate commerce
remotely
be
indirectly affected.
Pearson,
Kidd v.
1,
128 U.
Cuir,
S.
v. De
Hall
485;
Alling,
Sherlock v.
93
99, 103;
U. S.
Ogden,
Gibbons v.
341 of Criminal Court the Oklahoma And no one—not case. ent minnows that the Court —contends this Appeals or State ob- commerce. It of interstate subjects are not the at issue up sort theory simply has set the Court vious that which, a decision toppling to facilitate strawman have remained valid that principles enunciates respects, other today.4 until at least refined, albeit somewhat vital, Roman from derived the view expressed Court in Geer within the territorial game located the wild fish and law that its citizens property common are the limits of State common may exercise this trustee, kind of as a State, 529. citizens. U. at for the benefit “ownership" within wild creatures “own” the a State does not Admittedly, Baldwin word.5 sense of the any conventional its borders Comm’n, Douglas supra, 386; Fish & Game v. Montana Toomer v. Products, Inc., (1977); 265, Seacoast Holland, Missouri v. Witsell, (1948); 401-402 S. by the concept expressed But Baldwin Montana obsolete. “ownership” doctrine is not Comm’n, concur- supra, J., C. Fish & Game (Burger, ownership recognized has long This Court ring). *17 563, (1923) (Holmes, J., Pennsylvania Virginia, 262 U. 601 v. West dissenting). 4 opinion provide for in the Court’s a basis Certain of statements may yet overruling principles of Geer. hope that these survive some and ante, interests in conservation at 337: “We consider States’ See purposes”; ante, at 338: legitimate as local protection of wild animals powerless protect overruling of Geer not leave the States “The does their borders.” and conserve wild animal life within 5 any proprie “ownership” term in The Geer Court itself did not use the “ tary S., 161 U. at 529: take it to be the correct doctrine sense. See 'We they country, ownership far are animals, of wild so in capable ownership, State, proprietor in the not as a but in its sover of eign capacity representative people as the and for the benefit of all its ” common.’ 342
language
simply
of Geer and
a
way
similar cases is
shorthand
a
describing
preserving
State’s substantial
interest
regulating the exploitation
game
of the fish and
other
natural
resources within its boundaries for
benefit
Inc.,
Products,
Douglas
436 U.
Seacoast
citizens.
v.
386;
sell,
supra,
284;
Toomer
supra,
v. Wit
at 402.
recognition
In
important
of this
interest,
the Court
upheld
variety
regulations designed
has
a
to conserve and
g.,
maintain the natural resources of a State.
e. Baldwin
See,
v. Montana Fish
Comm’n, supra;
& Game
Huron Portland
Cement
Detroit,
Co. v.
(1960);
362
440
Lacoste v.
S.U.
Louisiana Dept.
Conservation, 263 U.
(1924);
S. 545
Pennsylvania,
Patsone v.
232
(1914);
138
Geer Con
S.U.
v.
necticut, supra;
Massachusetts,
Manchester v.
240
U. S.
(1891); McCready
Virginia,
391 (1877);
Smith v.
Maryland,
To be
power
How.
sure,
State’s
preserve
regulate
wildlife within its borders is not
absolute.6 But
the State is accorded wide
latitude
fash
ioning regulations appropriate
protection
wildlife.
regulation
Unless the
directly conflicts with a federal statute
or
Douglas
treaty,
Products, Inc.,
v. Seacoast
supra, at 283-
285; Kleppe
Mexico,
v. New
546 (1976);
S. Holland,
Missouri v.
supra, at 434; allocates
in a man
access
ner that violates the Fourteenth Amendment, Takahashi v.
Fish &
Comm’n,
Game
life should
And
matter
“Bal-
this is true no
how
resulting pattern
activity.7
kanized” the
of commercial
the special
Oklahoma law at issue in
case serves
representative
pre
interest
in
State,
its citizens,
serving
regulating exploitation
minnows
free-swimming
within
found
protect
its waters.
law serve
“[T]he
[s]
against
depletion
in
natural
minnows
Oklahoma’s
through
streams
exportation.”
commercial
“Where the evenhandedly statute legitimate to effectuate a local public interest, and its only incidental, effects on interstate commerce are upheld will be unless the burden imposed clearly on such commerce is excessive putative relation to the legitimate local If benefits. ... purpose found, question local then the degree. becomes one of And the extent of the burden that will be depend tolerated will of course on the nature of the involved, local interest pro- and on whether it could be moted as well impact with a lesser on interstate activities.” 397 142. primacy
Given of the local here, conflicting interest in the absence of regulation federal require I would challenging one a state conservation law grounds Commerce Clause greater to establish a far burden on inter state commerce than is infra, shown this case. See also 344-345. See Washington Apple Hunt v. Advertising Comm’n, 432 U. S. (1977): opinions long recognized that, have “[O]ur 'in the absence of con flicting legislation by Congress, there is a residuum of in the state to make governing laws matteis of local concern which nevertheless some measure affect interstate even, extent, commerce or regulate to some it’ H. P. Hood Sons, & Mond, Inc. v. Du (1949) J., (Frankfurter, dissenting): “Behind the distinction between 'substantial’ upon ‘incidental’ burdens interstate recognition that, commerce is a the absence of regulation, federal it is always sometimes —of course not —of greater importance that local protected interests be than that commerce be not touched.” *19 344 adopt may a that State range regulations But of
pose.8 particularly extremely broad, circumstances under these most, is, at on interstate commerce burden where, here, Products, Inc., 431 U. Douglas Seacoast minimal. v. See in dissenting part concurring J., at 288 (Rehnquist, at Conservation, supra, Dept. Louisiana Lacoste v. part); Comm’n, S.,U. Game 436. Fish & Baldwin v. Montana 552; cf. Mexico, at supra, New 545. Kleppe 391; I do not think Contrary to the view the Court, nat- exploitation of the commercial regulation Oklahoma’s enter- against out-of-state either discriminates ural minnows inter- or that it burdens the in favor of local businesses prises showing has At no such least, in minnows. state commerce & Florida Lime the record before us. been on Cf. made (1963). Growers, Paul, 154 373 Avocado Inc. v. permits residents regulation This is not a where a State’s case prohibits nonresidents export naturally minnows but seined min- person export is allowed to natural doing. from No so is evenhanded Oklahoma; the statute nows sale outside (B) (Supp. § Tit. 4r-115 application. Stat., in its Okla. See own 1978). protect not used its The State has Washington competition. from outside Hunt v. citizens See Comm’n, Hood Apple Advertising (1977); P.H. Mond, Sons, & Inc. Du 336 U. Nor is this S. purpose Oklahoma The Court seems to doubt conservation of the places because the State limit on number of a licensed law no minnows imposes regulation governing dealer take from state waters no Ante, disposition 337-338, 20. minnows within State. and n. rationally adequately But could State have concluded it could preserve population its natural minnow without such additional measures. 18, 20, my Arg. Since, view, prohibition 21-23. Tr. of Oral naturally export imposes any, little, seined minnows if burden on the minnows, interstate commerce in the State has not violated the Commerce by choosing export Clause an ban on natural as the minnows means to special conserving effectuate interest wildlife located its ter within ritorial limits. aas condi business, a nonresident requires
case where State of its portion significant amove exporting minnows, tion to pur resources certain state operations to the or to use State economy. See the local benefit of of its business for the suit Foster-Fountain (1948); Witsell, 334 U. Toomer v. S. Hay Hay Johnson v. del, Packing (1928); Co. *20 Inc., Church, Pike Bruce del, cf. (1928); the Court’s And, notwithstanding not has blocked Oklahoma protestations contrary, to bor in minnows at the State’s commerce flow interstate may ante, anyone else, See 336-337. Appellant, ders. at long so as the many wishes, as he freely export minnows not hatchery nat minnows transported minnows so are I fail to see record, simply urally seined minnows. On this commodity is interstate commerce in minnows, how regulatory impeded sue in least Oklahoma’s here, is scheme.9 in which both residents regulate
Oklahoma does the manner outside procure and nonresidents minnows to be sold requiring showing no in record that State. But there is from appellant purchase to his minnows hatcheries instead persons from to minnows from the State’s licensed seine any busi- way appellant’s doing waters increases costs nothing ness. There also is the record to indicate that naturally any desirable as items seined minnows are more hatchery commerce than far as record minnows. So naturally hatchery before us seined indicates, minnows and fungible. any are Accordingly, minnows minimal burden that from appellant purchase result minnows requiring for sale from destined out from state hatcheries instead 9 Thus, aside the decision in Geer and the putting even principles considering which it has come to be known and the Oklahoma statute “according general applied regulations to the same rule of other resources,” ante, explain natural the Court has failed how still against Oklahoma’s burden laws or discriminate commerce minnows.
those licensed to seine minnows is, my more than view, outweighed by Oklahoma’s substantial interest in conserving and regulating exploitation of its natural population. minnow I therefore would affirm judgment of the Oklahoma Court of Criminal Appeals.