Montana Outfitters Action Group v. Fish & Game Commission of Montana

tried remain issues Factual defendant and the plaintiff

between third-party de Shippers

Merchant involve Express. These Breman’s

fendant freight was in whether the question of properly loaded

good condition was tendered Season- when it

packaged Express. If Season-All to Breman’s

All cannot, in its point on this meet its burden then the Shippers, against Merchant

claim Shippers Merchant party claim of

third fall, prevail should but if

must Season-All good delivery in proof would establish motion carrier. The to the initial

condition Summary Judg Express for Breman’s denied.

ment will be Company Transportation

Penn Central Company Railroad and Ohio Baltimore Summary Judgment on moved for

have not appears to the court record but it

this rest alleged liability would

their against Bur- grounds as is asserted

same Ship- Merchant

lington Northern. Unless evi- come forward with additional

pers can genuine of a to show the existence

dence lia- fact relevant to their

issue of material these carriers for sum-

bility the motions of claim of Merchant

mary judgment on the granted.

Shippers would be ACTION

MONTANA OUTFITTERS Plaintiffs, al., et

GROUP AND COMMISSION OF

FISH GAME al., et

STATE OF MONTANA

Defendants. 75-80-BU.

No. CV Court,

United District States Montana,

D. Division.

Butte

Aug. value,

sought trophy for its and nonresident group hunters are as interested trophy than are the resident hunters as years In recent there has been an group. in the number of hunters and a increase disproportionate increase in the number of years hunters. In the between nonresident and 1970 there was an increase of hunting compared in nonresident 536% Bozeman, Mont., Goetz, for H. James of with an increase 67% resident plaintiffs. hunting.2 preservation The of the elk de- Woodahl, Gen., of Atty. State Robert upon conservation. pends Gen., Herron, Atty. Asst. Mont., Sp. Clayton 26-202.1(12) provides R.C.M.1947 for a § Mont., Helena, for defendants. big game- nonresident combination license fee A and fixes the therefor. nonresident may OPINION not hunt elk without the combination license. The license fee for the 1976 hunt- BROWNING, Judge, and Circuit Before $225.00, will be and for that fee ing season n JAMESON, Judges. District and SMITH permitted the nonresident to take one deer, beer,

elk, birds, upland one one black A will be able to hunt and fish. resident3 CURIAM: PER payment in 1976 for an elk $8.00 rights is about elk and This case tag4 elk and for a conservation $1.00 elk, once to hunt them.1 nonresidents license.5 animal, in the mountains now lives plains a required The elk is a is not to buy western Montana. While resident in central and licenses, it moves from sense that combination cost to him migratory in the range privileges granted by winter and of the range to the of all the non summer back, migration oc- combination license this sort resident would be and when Montana, therefore, elk The ratio is 7.5 to 1 in the borders $30.00.6 curs near Montana, Idaho, Wyo- favor of the resident. claim is that to and from drift range licensing provisions The summer is in are ming, discriminatory these and Canada. mountains, part privileges of it is in violation of the and significant and a and immu IV, (art. 2) range equal The winter is in nities clause federally owned. § significant part protection process (amend. and due valleys, and a clauses the foothills ownership. XIV) private About of the United Constitution. of which is States killed are killed on federal Plaintiffs concede that the elk State con 75% of stitutionally charge be not and never will lands. The elk is hunting fishing privileges animal much than resi commercially. It is an hunted eligible hunting fishing price disparities to receive a resident or in the there are While provides: license.” 83-303 § fish and R.C.M.1947 fees for other resident and nonresident has, law, “Every person licenses, only a residence. In game the combination license determining place of residence the follow- permits to hunt elk is which the nonresident ing controversy rules are to be observed: into drawn here. place “1. It is the one where remains when special not called elsewhere for labor or other objections to the introduc- 2. All of the State’s temporary purpose, or and which he returns evidence, reserved, which were are now tion of repose. in seasons of . overruled. 26-202.1(4). 4. R.C.M.1947 § 26-202.3(2) provides: § 3. R.C.M.1947 “Any person 5. R.C.M.1947 26-230. § of the who has been a resident Montana, 83-303, state of as defined section (6) immediately prior 26-202.1(1), (4), period § for a of six months 6. R.C.M.1947 making application be § for said license shall R.C.M.1947 26-230. residents, through oth because taxes dents suggest Defendants that there no fees, hunting fishing than license er justiciable controversy gov because the law management pro contribute to the wildlife erning hunting the 1976 season will urge degree that the of the dis gram, but 1, 1976; July effective until the 1975 hunt justified a cost parity cannot be on basis. over, ing governing season is and the law it precisely kept no records are which While the plaintiffs.9 problems cannot affect “ direct indirect disclose the costs which are here raised those which ‘capable ” apportioned between resi properly yet evading repetition, review.’ Roe nonresidents, plaintiffs did dents and Wade, 113, 125, 705, 713, an opinion offer the evidence of economist 35 L.Ed.2d Had plaintiffs wait ratio no than effect that a of more 1, 1976, July until ed to commence this 2.5 to 1 can be cost-wise. On action, unlikely it resolution at this evidence, the consideration of that State’s court level would until be obtained the 1976 it, regard and due opposing evidence with hunting over. season was Absent a repeal the presumption constitutionality, to of we challenged law, the unlikely since the 1 be find that the ratio 7.5 to cannot legislature will Montana not meet until 1977, on basis of cost allocation.7 January plaintiffs the will be affected law, by present the and is there now a challenge plain Defendants the controversy. We hold the controversy to be standing. plaintiffs tiffs’ Moris and justiciable. Lee are who have hunted The State argues support with some past in elk Montana in the and who to want in the authorities the that the State owns hunt in the They Montana in future. are animals in their wild in trust for the obviously adversely by affected an increase State, beneficial use of the citizens of the in nonresident license fees and have stand may that the and State do what it will with ing to maintain this action. The economic own property.10 plaintiffs its contend affected, interests of Moris and Lee are and support with some in the authorities that Morton, that it is Sierra sufficient. Club v. fact, ownership theory, whole in “[t]he 727, 1361, 92 405 U.S. S.Ct. 31 636 L.Ed.2d generally regarded now as but fiction (1972). presented all by Since issues are expressive legal impor shorthand the Lee, do pass upon Moris and we not the people tance to that a power its State have standing remaining of the plaintiffs.8 preserve and regulate exploitation to the 7. For a nonresident who wanted to and governing hunt do not While we consider the law elk, alone, hunted and elk the ratio 28.2 to 1. hunting (R.C.M.1947 the 1975 season 26- § part Some of the difference betweén the to 28.2 202.1) prior as it existed to the 1975 amend- justified by 1 and 7.5 the to 1 ratios 91, 1, (Laws 1975, ments of Montana ch. ch. § arguments support made in of the combination 417, 1, 546, 1) ch. we note § § do the license, but, in view of our determination that arguments now addressed to R.C.M.1947 26- § the fee at a 1 7.5 to ratio is not equally applicable, 202.1 as it now are exists justified cost-wise, approach legal prob- the we except perhaps degree, prior to the law. resolving arguments lems involved without the pro and as con to whether the discrimination Connecticut, 10. The cases Geer 161 U.S. by justified. the caused combination license is 519, 600, (1896); 16 S.Ct. 40 L.Ed. 793 McCready Virginia, 94 U.S. 24 248 L.Ed. plaintiffs hunters, 8. The are four nonresident (1876); Eberie, (N.D.Ill.1899), In re 98 F. 295 outfitter, one licensed and the Montana Outfit- language Packing and some in Foster-Fountain Group, composed ters Action seven licensed Haydel, Co. v. 278 U.S. 49 S.Ct. 73 L.Ed. outfitters and seven dude ranchers and nonresi- support 147 lend supporting this view. Because dent hunters. Amicus curiae briefs validity by the the involvement of elk of the statute were filed the with the lands of the Association, States, sovereign ownership analy Montana and Outfitters Guides United outfitters, representing readily applicable and Interna- might sis is not as to elk as it Game, tional and Association of Fish Conserva- pheasant. be to the Chinese Commissioners, representing tion the wildlife states, Canada, Rico, agencies of all 50 Puerto and Mexico. character,13 reational except do here We for a important resource.”11 an exactly few residents who live in theories the right advanced. between choose expensive place, is recreation. theory power Critically has the under either State examined, right is, elk, asserted here to that there- .manage and conserve fore, no than a chance to regulations engage laws and such to make end temporarily in a activity recreational in a preserve it. protect state, sister and even the is depend- chance a dis Whether, management, willingness ent of the people of residents and nonresi between crimination manage subject the sister State to mat- requires an examina permissible dents ter of the recreation—the elk. The assert- right, the State of the claimed tion right ed is not fundamental14 and is not involved, dis justifications for the as a protected privilege and immunity by crimination. IV, art. 2 of the United § States Constitu- right of the assert- We turn to the nature Wheeler, tion. United States v. 254 U.S. every- in this case. Not plaintiffs ed (1920); S.Ct. 65 L.Ed. 270 Cana- many hunt There are too elk. one Ry. dian Northern v. Eggen, elk. If the elk is to and too few people (1920); L.Ed. 713 and Blake game species, as a herds must survive McClung, managed, part a vital of the man- L.Ed. 432 is the of the annual kill. agement limitation cannot ignore We the nature of the may be in accomplished limitation That right in treating equal involved protec the many ways, all of them involve in some but If problem. tion the needs education at degree upon days.12 hunter a limitation primary the level15 at and the college pric- be days by hunter controlled level16 do not create the fundamental sort lotteries, license, conducting by ing by the which rights have protec constitutional seasons, by of the limiting length the equal tion the protection clause, under then restricting Any the of the hunt. con- area certainly right the asserted in this case does device, upon trolling by reason its effect a not have constitutional basis and is not hunter, potential of a life circumstances the equal fundamental for protection purposes. may deprive any possibility that hunter simply There is no nexus between the right hunting elk. sport speak, to hunt for to right vote, travel, to de right right Whatever word used to to right rights—right, not, asserted plaintiffs’ pursue calling. to a We therefore, scribe is rec- right required chance—the asserted to scrutinize the privilege, discrimination Witsell, quotation 428, (1952), from Toomer v. 334 11. is 72 96 S.Ct. L.Ed. 458 all of which 385, 402, 1156, 1165, S.Ct. L.Ed. U.S. 68 92 right were concerned with the fundamental to Holland, (1948). 1460 In Missouri v. 252 U.S. pursue calling a or business. In American 416, 434, 382, 384, (1920), 64 40 S.Ct. L.Ed. 641 Ass’n, Levitt, F.Supp. Commuters Inc. v. 279 40 said, put Mr. Justice “To the claim of Holmes (S.D.N.Y.1967), aff’d, (2d 405 F.2d 1148 Cir. upon upon is to lean slender the State title a 1969), expressly distinguished the district court quoted approv- language reed.” This was with fishing between noncommercial licenses and Comm’n, al in Takahashi v. Fish and Game 334 fishing rights involving “commercial interstate 1138, 410, U.S. 68 92 L.Ed. S.Ct. 1478 F.Supp. commerce.” 279 at 48. Witsell, supra. and in Toomer All of the v. cases cited in footnote were this concerned infra, 248, McClung, v. at 14. See Blake 19 S.Ct. migrating with fish birds. The movement 165. drifting migra- of the elk is more a than a true tion. Independent School 15. San Antonio District v. day hunter is in field is a Each that one 12. Rodriguez, 411 U.S. 93 S.Ct. 36 L.Ed.2d day. hunter (1973). 16 We this is sufficient to distin- 13. believe that Sturgis F.Supp. Washington, v. 368 38 guish this case Takahashi v. Fish from (W.D.Wash. 1973), aff’d, Witsell, U.S. 94 S.Ct. Comm’n, supra; v. su- Game Toomer (1973). Anderson, pra; 38 L.Ed.2d 464 Mullaney 342 U.S. BROWNING, Judge (dissenting): Circuit to determine whether only

strictly but relationship to rational system bears some majority recognizes that the “owner purposes.17 legitimate State theory” ship espoused early Supreme in denigrated opinions is Court more recent is to restrict The State Witsell, pronouncements. Toomer v. See days. Any regulatory of hunter number 385, 402, S.Ct. 92 L.Ed. in some imposes a license fee system which (1948). disrepute “spe Also in is the who can’t against those sense discriminates increases, theory public occasionally cial ad As the fee interest” it. pay afford to to regulatory justify A vanced state increases. discrimination pure a in which upon lottery favor of its own scheme based citizens matters chosen of hunters were “privilege” distinguished a limited number from “right.” discrimination-free, legisla a would be but Sugarman Dougall, See 413 U.S. rationality18 some conclude might 643-45, ture with (1973); 37 L.Ed.2d pure lottery open potential to all a elk Richardson, 365, 372-74, Graham might destroy hunters the United States 29 L.Ed.2d 534 All citizens motivation Montana Equal remains the traditional Pro management program elk to underwrite the higher tection issue: fee Does license of which the would species in the absence charged hunting nonresidents for elk in disappear.19 legitimate purpose? state serve state a op that where the We conclude strongly pressed by The contention most activity a portunity enjoy recreational the state that the difference in fee license state, supported or a where created the legitimate purpose serves of imposing activity between the there is no nexus share a fair of the cost right, and where its fundamental maintaining majority the elk herd. As the activity enjoyed by very nature the can be finds, however, “the ratio of 7.5 to 1 28.2 [or it, enjoy those would only portion who cannot on any basis of cost 1] over the may prefer its residents The majority allocation.” does not discuss states, or the residents of other condition purposes by the other advanced the state to enjoyment the such of nonresident support the discrimination—implying (and I fit.20 terms as it sees that agree) there is no reasonable relation- between the ship discriminatory fee IT THEREFORE ORDERED license IS any of judgment denying plaintiffs purposes by all other be entered advanced the justification state. relief. such the Each is shown Independent proportion 17. San District v. applica- Antonio School tana would exceed the Scrap Rodriguez, supra; Hughes v. Alexandria populations from other to the tions states Corp., - U.S. -, 96 S.Ct. 49 L.Ed.2d those states. Montana residents can hunt 4959. 44 U.S.L.W. cheaply, probably, more because of their it, proximity by hunting. to attracted rational, presump- is 18. If the conclusion so, legislature looking might a at Even the facts constitutionality require would us to tion of relatively percentage conclude some small consider it. Montana hunters would licensed if non- to hunt 19. Were a Montana resident’s chances residents and residents were Montana treated basis, purely population Mon- on a calculated equally. get would elk licens- tana residents .34% the basis of all es issued. On elk licenses The in the 20. results reached cases of Geer (107,675), population in issued in 1973 Connecticut, 10; supra, McCready Virgin- n. 694,409; 203,- (Montana: United States: 1970 ia, Eberle, 10; supra, supra, 10; n. In re n. 235,298), residents have re- Montana would Kemp, State 73 S.D. 44 N.W.2d 203,- (694,409 by ceived 366 of them divided (1950), for appeal want of a substan- dismissed 235,298, by 107,675). figure multiplied This question, federal U.S. tial drawing unrealistic sort of a because L.Ed. are in with the accord licenses, allocating proportion applica- result here. reached population tions to the of Mon- from Montana by the discrimination is logically necessary record to be either or factu- in order by the program to continue the that benefits ally unsupportable. them. I do not believe discrimination for such a majority sustains the dis The nonetheless permitted by Equal Protec- theory suggested on novel not crimination a tion Clause. supported by any or authority.* the state Hospital Memorial v. Maricopa County, upon by The ultimate state interest relied 39 L.Ed.2d 306 majority legiti- is the unquestionably (1974), involved a constitutional challenge important mate one of conservation. an to Arizona statute requiring year’s relationship The asserted between the dis- residence as a condition indigent to an re- criminatory license fee and conservation is ceiving non-emergency medical care at The employs not direct. state discrimina- county expense. The state argued that tion, majority suggests, to further con- requirement “the necessary public and, my opinion, servation in an indirect support” of modern and public effective impermissible way. medical facilities because the voters be- majority holds the discrimination lieved the requirement protected them from against justified to be because an influx low-income such facili- families might rationally the state conclude that if ties would otherwise attract. Supreme against nonresidents were not discriminated rejected Court argument, stating, “A thereby discouraged from participating employ State an invidious discrimi- hunt, in the elk the number of residents nation to sustain the viability of its participate who could would be so small programs.” at 94 S.Ct. at that, the unwilling residents would be to vigorous maintain a program. conservation Supreme Court cited with approval short, In an otherwise invidious discrimina- Housing Cole v. Authority, 435 F.2d against tion nonresidents is be- (1st 1970), 812-13 Cir. invalidating city’s cause the state may rationally consider the durational residency requirement for access necessary to induce residents housing projects. Cole, low-income In support program required state city argued that a durational residential conserve the herd. requirement was “often the key to survival [public] housing” because general terms, In more voters believed the principle ap- such a restriction to be to avoid pears to be that burden ac- benefiting against newcomers longtime cess nonresidents to a finite local re- residents. The Appeals rejected Court of source in order to the share availa- increase reasoning, stating, this objective “The ble to residents and thereby maintain a achieving political support by discriminato- political base sup- within the state for the ry means ... is not one which the port of state efforts to conserve the re- recognizes.” Constitution 435 F.2d at 813. way, source. Put in another a state justify constitutionality of a discrimina- Memorial Hospital and Cole involved in- tory by showing political sup- statute that fringement rights fundamental that port by people class of to be justified benefited only could be by a compelling state * majority (note 20) “ownership theory,” rejected states the result subsequent in de cisions, and, in any event, reached this case readily accord with the re applica not Connecticut, elk, sults reached in Geer v. 161 U.S. ble to of which are killed on federal 75% 519, 600, (1896); S.Ct. 40 L.Ed. 793 Supreme lands. Dismissal Court of the McCready Virginia, 391, appeal 94 U.S. Kemp L.Ed. 248 ruling in State v. did not involve a (1876); Eberie, (N.D.Ill.1899) In re 98 F. 295 that the discrimination was constitutional. The ; Kemp, and State v. Supreme 73 S.D. 44 N.W.2d 214 opposi statement filed in the Court in (1950), appeal jurisdiction pointed dismissed for want of a substan tion to out that violations question tial federal 340 U.S. of state statutes not claimed to be unconstitu (1951). majority 95 L.Ed. 667 even the

sible to limit. It would immunize arbitrary from consti-

most whenever it could be con-

tutional attack reasonably that the discrimination

tended support for to obtain

was activity. recreation is increas-

Access to outdoor society. signifi- It is

ingly important to our As the notes tional had occurred that were sufficient to sus (note 10), the first three cases rest on the tain the conviction. cant, this does not make them in- for example, But that the number of visi- interest. rejected justifica- These cases applicable. tors to national parks and state doubled in political grounds on tion of discrimination Department the decade 1960-1970. U.S. justification on such a basis is in- because Commerce, History Statistical of the United not because the herently inappropriate, law, 1970. In fact if States not recrea- infringed fundamental. right was tional resources constitute a vital national asset. The sentiment that state residents by the holding A that discrimination preferred have claim to such resources showing that the state unworthy protection within the state is rationally such discrimination could believe “under a Constitution which was written support to secure was partly purpose for the of eradicating such interest, public would lead program provincialism.” Housing Cole v. Authority, to the inevitably, indirectly, if conclusion supra, 435 F.2d at 813. justi- discrimination can be invidious equal treat- by popular disapproval of fied I would hold discriminatory Montana’s Cole, the court said in such a rule ment. As license fee unconstitutional. discriminatory rationalize classifica- “would constitutionally impermissi- which are tions Addressing F.2d at 812. essen- ble.” 435 tially point Hospital, the same in Memorial “ Supreme ‘[pjerhaps Court said: Con- gress participation could induce wider state in school construction if it authorized the building joint segre- use of funds for the schools,’ gated purpose but that would not CRISTINA, Plaintiff, Salvatore J. such a scheme.” 415 at sustain 1086, quoting Shapiro Thompson, at S.Ct. 618, 641, 394 U.S. 22 L.Ed. 660 S.Ct. DEPARTMENT OF STATE OF the (1969). al., STATE OF NEW YORK et Defendants. majority’s is at with rationale odds principle rights that constitutional No. 76 Civ. 1393. subject abrogation by majority will. Court, United States District Virginia As the Court said in West Board of D. New York. Barnette, 624, 638, S. Education v. 319 U.S. 1178, 1185, (1942): 87 L.Ed. 1628 “The S.Ct. Aug. very Rights of the Bill was to subjects certain withdraw from the vicissi political controversy, place tudes of them majorities the reach of and officials beyond legal principles and to establish them as applied by the courts.” also Lucas v. See Assembly, Colorado General 12 L.Ed.2d 632 applied by majority impos- The rule

Case Details

Case Name: Montana Outfitters Action Group v. Fish & Game Commission of Montana

Court Name: District Court, D. Montana

Date Published: Aug 12, 1976

Citation: 417 F. Supp. 1005

Docket Number: CV 75-80-BU

Court Abbreviation: D. Mont.