Keiran W. O‘BRIEN, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
No. 85-112.
Supreme Court of Wyoming.
Jan. 13, 1986.
1144
“But I think for me to say probable cause would also be saying more than I can absolutely say.
“Q. * * *
“Do you, in your opinion, see it as a likely cause? Is that a better word?
“* * *
“THE WITNESS: I don‘t think that I can say that‘s the likely cause, because I just don‘t know the physiologic way that happens. I think there is an undeniable relationship.
“I think there is a—there is something that happened in this man‘s day that does not happen every day in the course of his job, and that in and around that unusual event he had a heart attack.
“And we know that stressful situations sometimes seem related to heart attacks. And to say that there is absolutely no relationship between those two things would be incredulous.”
The direct causal connection requirement is not whether or not the truck accident was the probable cause of appellee‘s myocardial infarction, but whether, as stated in Kaan,
“* * * it is more probable than not that work exertion or stress contributed in a material degree to the precipitation, aggravation, or acceleration of a myocardial infarction.” Kaan v. State ex rel. Wyoming Worker‘s Compensation Division, 689 P.2d at 1389.
The cardiologist was not asked the question in such a manner that he could recite the magic words in a concise affirmative opinion statement. His statements, however, when considered together, satisfy the holding in the Kaan case:
“* * * I think there is an undeniable relationship.
“I think there is a—there is something that happened in this man‘s day that does not happen every day in the course of his job, and that in and around that unusual event he had a heart attack.
“And we know that stressful situations sometimes seem related to heart attacks. And to say that there is absolutely no relationship between those two things would be incredulous.”
We, therefore, affirm the order of the trial court.
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A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John Renneisen, Sr. Asst. Atty. Gen., Marion Yoder, Asst. Atty. Gen., and Cheryl Solon, Legal Intern, for appellee.
Timothy J. Kirven and Felecia A. Rotellini, Legal Intern, of Kirven & Kirven, Buffalo, for amicus curiae Wyoming Outfitters Ass‘n.
Before THOMAS, C.J., and ROONEY,* BROWN and CARDINE, JJ., and RAPER, J., Retired.
RAPER, Justice, Retired.
Keiran W. O‘Brien (appellant) was convicted, and fined $100 by a justice of the peace for Park County, on January 18, 1984, of hunting in a federal wilderness
The issues advanced by the appellant are:
“I.
“Does Wyoming Statute Section 23-2-401(a), requiring nonresident big game hunters who hunt in federal wilderness areas to employ guides violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?
“II.
“Does Wyoming Statute Section 23-3-401(a) violate the Privileges and Immunities Clauses of the United States Constitutions [sic]?
“III.
“Does Wyoming Statute Section 23-2-401(a) violate the Supremacy Clause of the United States Constitution because it conflicts with the purposes of the National Wilderness Preservation System Act and federal regulations thereunder?”
We will affirm the decision of the district court and appellant‘s conviction.
Appellant, at the time of his citation on September 28, 1983, was a 46-year-old Minnesota resident having in his possession a valid “Wyoming Non-Resident Elk and Fishing Privilege” license. He and his brothers had set up two hunting camps in the Park County sеction of the Teton wilderness area of the Teton National Forest. At the time of his citation at one of the campsites, and at the trial, appellant admitted he had been hunting elk in the federal wilderness area without a licensed guide. He knew at that time that Wyoming law required him to have such a guide when hunting big game animals in a wilderness area. Elk are big game animals.
Appellant further admitted that he had hunted in the Wyoming wilderness from 1980 to 1983 intentionally without a guide because he felt the guide requirement was unconstitutional. He was an experienced hunter, familiar with the wilderness area in which he was hunting having been there on a ten or eleven-day camping trip with a Wyoming resident friend living in that area. In 1980 he had hunted for two weeks 20 to 30 miles from the area hе was
In Schakel v. State, Wyo., 513 P.2d 412 (1973), this Court declared unconstitutional the predecessor statute to the one under which appellant was convicted and which we now consider. Since that time the amended version of
In considering a constitutional attack on a statute, basic principles must be kept in mind. There is a presumption of constitutionality, and the burden is on the attacker to show unconstitutionality beyond a reasonable doubt. Bell v. State, Wyo., 693 P.2d 769 (1985). Reasonable doubts as to constitutionality are resolved by upholding the statute, if possible. Armijo v. State, Wyo., 678 P.2d 864 (1984).
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution2 has a parallel in
I
There are two tests designed to determine if statutory classifications meet equal protection requirements. The first is employed where the interest affected is an ordinary one and the second where a fundamental interest is at issue. When an ordinary interest is involved, then a court merely examines to determine if there is a rational relationship between a classification made by the statute or statutes being viewed and a legitimate legislative state objective. In other words, if the court perceives that the legislature had some arguable basis for choosing the end and the means, it will sustain the law. Cheyenne Airport Board v. Rogers, Wyo., 707 P.2d 717 (1985). When a fundamental interest is affected or if a classification is inherently suspect, then the classification must be subjected to close scrutiny to determine if it is necessary to achieve a compelling state interest. The latter test requires that the state establish that there is no less onerous alternative by which its objective may be achieved. Washakie County School District Number One v. Herschler, supra.
Baldwin settles the matter of whether the right to hunt is a fundamental right in
“Does the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause? * * * Elk hunting by nonresidents in Montana is a recreation and a sport. In itself—wholly apart from license fees—it is costly and obviously available only to the wealthy nonresident or to the one so taken with the sport that he sacrifices other values in order to indulge in it and to enjoy what it offers. It is not a means to the nonresident‘s livelihood. The mastery of the animal and the trophy are the ends that are sought; appellants are not totally excluded from these. The elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved.
“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.” 98 S.Ct. at 1862-1863.
We consider all of the observations of thе Supreme Court of the United States applicable in Wyoming, as well.
Since elk hunting is a sport and not a fundamental right, we then need only apply the less rigorous test applied to an ordinary right, and we need only examine to determine if there is a rational relationship between the classification made by the statute or statutes being viewed and a legitimate state objective. The statutory classification we are here viewing is that nonresidents, in addition to having a Wyoming nonresident hunting license, must, when hunting big and/or trophy game animals4 on any designated wilderness area in Wyoming as defined by federal law, be accompanied by a licensed professional or resident guide.
By
The declaration of ownership and preemption by the state of the management and control of all wildlife in Wyoming has constitutional sanction. As said in Lacoste v. Department of Conservation of State of Louisiana, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437 (1924), the wildlife within the
To carry out the state function of wildlife management, the Wyoming game аnd fish commission was legislatively created,
Enforcement of game and fish laws is a significant role the state must perform, according to the chief game warden in 1984 when he sаid, “Law Enforcement is an on-going activity of the Division and is an important part of wildlife management.” There were 2,642 arrests and fines amounting to $267,361 in 1983. Report at 12. There is some appropriated fund expense, in that connection, probably not measurable, except by some cost accounting method not to our knowledge undertaken, in that not only Wyoming game and fish department personnel are directed and authorized to arrest violators but also “every Wyoming law enforcement officer is authorized, empowered, and directed to arrest without a warrant, any person found violating any provision of” the game and fish act.
As a part of the game and fish scheme of enforcement, guides play an important part. Every guide is required and “shall promptly report to the department or any game warden each violation of this act or order of the commission by any person guided.”
Schakel, in discussing safety, felt it significant that antelope were not included; that it was as unsafe to hunt antelope as elk. Antelope are now included as a big game animal.
While the appellant‘s statement of issues refers only to
Perhaps there are some nonresident hunters who are fully capable of looking out for themselves in particular areas and pose no problem to enforcement, but it is reasonable to conclude and more likely that they should have help. Baldwin points out that a statutory classification impinging upon no fundamental interest need not be drawn so as to fit with precision the legitimate purposes animating it. That a statute 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.
Appellant has not carried his burden of establishing irrationality of one of the means chosen by the state to cаrry on the business of game management for its citizens and citizens of other states within its boundaries. We hold
II
Appellant, as a resident of Minnesota, claims that
“* * * Suffrage, for example, always has been understood to be tied to an individual‘s identification with a particular State. [Citation.] 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. [Citations.] 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. [Citations.] 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 decide into which category falls a distinction with respect to access to recreational big-game hunting.” Baldwin, 98 S.Ct. at 1860.
We have in Part I of this opinion placed weight on the ownership in trust of the state‘s wildlife. However, that position must yield when without reason it interferes with a nonresident‘s right to pursue a livelihood in a state other than his own. That right is protected by the Privileges and Immunities Clause. Such a case is Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), upon which appellant relies. In that instance the Court struck down a South Carolina statute requiring nonresidents of South Carolina to pay a license fee of $2,500 for each commercial shrimp boat and residents to pay a fee of only $25 on the ground that it violated the Privileges and Immunities Clause. Other burdens were also placed on nonresidents such as requiring proof before issuance of an annual license that they had paid South Carolina income taxes on profits from operations the preceding year and requiring boats licensed to travel for shrimp in the state‘s waters to dock at a South Carolina port and unload, park and stamp their catch before transporting to another state or waters thereof. Violations entailed suspension of the violator‘s license. The Court held that commercial fishing like other common callings is within the purview of the Privileges and Immunities Clause. The key word is commercial which translates into livelihood and distinguishes it from recreational fishing and hunting.10 When a statute interferes with the right to make a living (pursue a common calling) by a nonresident, then a fundamental right is involved, and we apply а different test than when the right to engage in recreation is involved.
The district judge relied on State v. Antonich, Wyo., 694 P.2d 60 (1985), and applied the test there set out when analyzing a privileges and immunities claim. First the court must ascertain whether a statute burdens a fundamental right or activity since only those privileges and immunities bearing upon the concept of interstate harmony fall within the scope and purpose of the clause. Second, the court must examine the reasons for the discriminatory treatment to determine their validity and their relation to the degree of discrimination imposed by the statute. The district court, then sitting as an appellate court, determined that in the light of Baldwin no fundamental right was involved in that hunting is a recreational sport and not a fundamental right. In such cases the Privileges and Immunities Clause did not come into play, and there was no constitutional viola
A most recent case in this Court, Powell v. Daily, supra, where the issue was whether
III
The Supremacy Clause of the Constitution of the United States is found in the second clause of
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The appellant claims that the requirement that he employ a guide to accompany him into a federal wilderness, in which he has a valid license to hunt, burdens his right of access guaranteed him by the National Wilderness Preservation System. His claim is broadened to a charge that the guide law is inconsistent with the objectives of the National Wilderness Preservation System in that there is a limitation to his access as a licensed hunter when he has no need for a guide. Appellant concludes that the federal legislation and regulations preempt the professional guide requirement of
The argument is most difficult to follow in the face of a specific provision,
The supplemental applicable Code of Federal Regulations,
Affirmed.
CARDINE, Justice, dissenting.
I dissent.
I would hold that
The majority opinion reaches a result different from Schakel (which held the predecessor of
I cannot find that the statute under attack,
I inquire first whether the statute is rationally related to the objective of enforcing the game laws. It is true that guides must know the game laws and report violations. It is also likely that nonresident hunters do not have the same knowledge and are less likely to hunt in a safe and law-abiding manner without guides. The question, however, is whether the classification, which does not require a resident to have a guide, is rationally related to the objective. The court‘s opinion states that it is not suggested “that out-of-state hunters violate game laws to any greater extent than resident hunters.” If nonresidents are no more likely to violate game laws than residents, a statute which classifies by residency has no rational relationship to the objective of enforcing game laws.
The next inquiry is whether the statute is rationally related to the goal of promoting hunter safety. Unlike the statute attacked in Schakel v. State, supra, this amended statute requires that a nonresident have a guide when hunting any big game animal in wilderness areas.
I cannot reconcile Schakel with the majority opinion. Schakel attacked the statute in question,
Schakel also held that
Schakel also questioned the provision of
Finally, in the absence of any evidence that nonresidents have a different effect on the game population than do residents, I fаil to see how the statute rationally relates to the objective of proper game management.
I believe that even with the lowest level of scrutiny this statute should be held unconstitutional.
Notes
“(a) No nonresident shall hunt big or trophy game animals on any designated wilderness area, as defined by federal or state law, in this state unless accompanied by a licensed professional guide or a resident guide. There shall be at least one (1) licensed professional guide or resident guide accompanying each two (2) nonresident hunters. The commission may also specify other areas of the state, or specific big or trophy game species, for which a licensed professional or resident guide is required for nonresidеnts, for purposes of proper game management, protection of hunter welfare and safety, or better enforcement of game [and] fish laws. The commission may allow licensed guides to accompany more than two (2) hunters but no more than six (6) hunters in specific areas.
“(b) Any resident possessing a valid resident big or trophy game animal license may apply for and receive a resident guide license. The resident guide license shall be issued without charge or bond by the commission, any district supervisor or resident game warden upon receipt of an affidavit from the resident stating the names and addresses of the nonresident hunters to be guided, the game to be hunted, the area to be hunted, and that the resident has not received nor will accept directly or indirectly any compensation for his services as a guide. A resident guide shall not guide more than two (2) nonresident hunters in any calendar year on any national forest, wilderness area, national game refuge, or national park, except as provided in section 23.-1-49(a) [§ 23-2-401(a)], nor shall he accept any compensation or gratuity for his services. The name and license number of the nonresident hunter shall be placed on the back of the resident guide license and stamped or signed by the issuer.”
“A. * * * It shall be unlawful for any person who is not the owner of a resident license or permit lawfully authorizing the same to hunt, pursue or kill, or attempt to hunt, pursue or kill any elk, deer, bear, moose or mountain sheep on any land within any national forest, national park or national game refuge within the boundaries of the State of Wyoming, any part of which is open to the hunting of deer, elk, moose or mountain sheep at any time during the calendar year in which said hunting is done, unless accompanied by a licensed guide; provided, however, that parties of two or more such persons hunting together need not be accompanied by more than one licensed guide for each two such persons.
“B. * * * No such licensed guide shall be required for not more than two non-residents hunting together when accompanied without compensation or gratuity by a resident of the State of Wyoming who is the owner of a resident big game license and a resident guiding permit. A resident guiding permit shall be issued, without charge and without bond, by the Cheyenne office or by any district supervisor or by any resident deputy game warden of the Wyoming game and fish commission to any resident of Wyoming owning a big game license in effect if and when such resident shall make and file an affidavit stating the names and addresses of not more than two non-resident hunters to be guided, the game to be hunted, the area in which they will hunt, and that such resident has not received nor will accept directly or indirectly any remuneration whatsoever. A resident guide shall not guide more than two non-residents in each calendar year regardless of the number of resident guiding permits issued to him in each сalendar year.”
“A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man‘s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primative and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”