snowman22250
Active Member
- Messages
- 324
Here is a link to the Nevada DOW website describing the nonresident
limitation litigation.
http://www.ndow.org/about/commission/lit/
The following is from that site. It is long but describes the situation
well.
##### Steele DVM
Statement of REPRESENTATIVE MARK UDALL On introduction of Bill To Reaffirm
State Authority To Regulate Resident and Nonresident Hunting and Fishing
February 9, 2005
Mr. Speaker, today I am introducing a bill to reaffirm the authority of
each state to regulate hunting and fishing within its boundaries, and
especially a state?s authority to enforce laws or regulations that differ
in the way they treat that state?s residents and people residing elsewhere.
A similar Senate bill has been introduced by Senator Reid of Nevada, who
introduced a related measure in the 108th Congress. He has been the leader
on this matter, and I am proud to join in the effort. There is nothing new
about a state?s having different rules for resident and nonresident hunters
or anglers. Colorado draws that distinction in several ways, and many other
states do so as well. And while there have been challenges to the validity
of such rules, until recently the federal courts have upheld the right of
the states to make such distinctions. For example, in 1987 the federal
district court for Colorado, in the case of Terk v. Ruch (reported at 655
F. Supp. 205), rejected a challenge to Colorado?s regulations that
allocated to Coloradans 90% of the available permits for hunting bighorn
sheep and mountain goats.
But a recent Court of Appeals decision marked a change ? something that
definitely is new. In that case (Conservation Force v. Manning, 301 F.3rd
985; 9th Cir. 2002), the federal appeals court for the 9th Circuit held
that Arizona's 10% cap on nonresident hunting of bull elk throughout the
state and of antlered deer north of the Colorado River had enough of an
effect on interstate commerce that it could run afoul of what lawyers and
judges call the ?dormant commerce clause? of the Constitution. Having
reached that conclusion, the appeals court determined that the Arizona
regulation discriminated against interstate commerce ? meaning the ?dormant
commerce clause? did apply and that the regulation was subject to strict
scrutiny, and could be upheld only if it served legitimate state purposes
and the state could show that those interests could not be adequately
served by reasonable non-discriminatory alternatives.
The appeals court went on to find that the regulations did further
Arizona?s legitimate interests in conserving its population of game and
maintaining recreational opportunities for its citizens, but it remanded
the case so a lower court could determine whether the state could meet the
burden of showing that reasonable non-discriminatory alternatives would not
be adequate.Because of the decision?s potential implications for their own
laws and regulations, it was a source ofconcern to many states in addition
to Arizona. In fact, 22 other States joined in supporting Arizona?s request
for the decision to be reviewed by the U.S. Supreme Court. Colorado was one
of those States, and our then-Attorney General, Ken Salazar, joined in
signing a brief in support of Arizona?s petition for Supreme Court review.
Regrettably, the Supreme Court denied that petition. So, for now, the 9th
Circuit's decision stands. Its immediate effect is on states whose federal
courts are within that circuit ? namely those in Alaska, Arizona,
California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as well
those of Guam and the Commonwealth of the Northern Marianas. But it could
have an effect on the thinking of federal courts across the country.
The bill?s purpose is to forestall that outcome, and so far as possible to
return to the state of affairs prevailing before the 9th circuit's
decision.
The bill would do two things: First, in Section 2(a), it would declare that
the policy of Congress is that it is in the public interest for each state
to continue to regulate the taking of fish and wildlife within its
boundaries, including by means of laws or regulations that differentiate
between residents and non-residents.
And, in Section 2(b), it would provide that silence on the part of Congress
is not to be construed by the courts as imposing any barrier under the
commerce clause of the constitution to a state?s regulation of hunting,
fishing, or trapping.
These provisions are intended to speak directly to the ?dormant commerce
clause? basis for the 9th Circuit's decision in Conservation Force v.
Manning.
I am not a lawyer, but my understanding is that lawyers and judges use that
term to refer to the judicially-established doctrine that the commerce
clause is not only a "positive" grant of power to Congress, but also a
"negative" constraint upon the States in the absence of any Congressional
action ? in other words, that it restricts the powers of the states to
affect interstate commerce in a situation where Congress has been silent.
Section 2 (a) of the bill would end the perceived silence of Congress by
affirmatively stating that state regulation of fishing and hunting --
including State regulation that treats residents and non-residents
differently ? is in the public interest. This is intended to preclude
future application of the ?dormant commerce clause? doctrine with regard to
such regulations.
Section 2 (b) would make it clear that even when Congress might have been
silent about the subject, that silence is not to be construed as imposing a
commerce-clause barrier to a state?s regulation of hunting or fishing
within its borders.
The bill is neither a federal mandate for state action nor a Congressional
delegation of authority to any state. Instead, it is intended to reaffirm
state authority and make clear that the ?dormant commerce clause? ? that
is, Congressional inaction ? is not to be construed as an obstacle to a
state?s regulating hunting or fishing, even in ways that some might claim
adversely affect interstate commerce by treating residents differently from
nonresidents.
It's also important to note that the bill is not intended to affect any
federal law already on the books or to limit any authority of any Indian
Tribe. Section 3 of the bill is intended to prevent any misunderstanding on
these points.
Section 3 (1) specifies that the bill will not ?limit the applicability or
effect of any Federal law related to the protection or management of fish
or wildlife or to the regulation of commerce.? Thus, to take just a few
examples for purposes of illustration, the bill will not affect
implementation of the Endangered Species Act, the Migratory Bird Treaty
Act, the Lacey Act, the National Wildlife Refuge Administration Act, or the
provisions of the Alaska National Interest Lands Conservation Act dealing
with subsistence.
Section 3 (2) similarly provides that the bill is not to be read as
limiting the authority of the federal government to temporarily or
permanently prohibit hunting or fishing on any portion of the federal lands
? as has been done with various National Park System units and in some
other parts of the federal lands for various reasons, including public
safety as well as the protection of fish or wildlife.
And Section 3 (3) explicitly provides that the bill will not alter any of
the rights of any Indian Tribe. Mr. Speaker, this bill is narrow in scope
but of national importance because it addresses a matter of great concern
to hunters, anglers, and wildlife managers in many states. I think it
deserves broad support. For the information of our colleagues, here is a
brief outline of the bill and a letter of support from the International
Association of Fish and Wildlife Agencies:
Outline of Bill Section One provides a short title ? ?Reaffirmation of
State Regulation of Resident and Nonresident Hunting and Fishing Act of
2005.? Section Two has two subsections: Subsection 2(a) states that it is
the policy of Congress that it is in the public interest for each state to
continue to regulate the taking of fish and wildlife for any purpose within
its boundaries, including by means of laws or regulations that
differentiate between residents and non-residents with respect to the
availability of licenses or permits for particular species, the kind and
numbers of fish or wildlife that may be taken, or the fees charged in
connection with issuance of hunting or fishing licenses or permits.
Subsection 2(b) states that silence on the part of Congress is not to be
construed to impose any barrier under the commerce clause of the
Constitution to a state?s regulation of hunting or fishing. Section Three
specifies that the bill is not to be construed as ? ? limiting the
applicability or effect of any Federal law related to the protection or
management of fish or wildlife or to the regulation of commerce; ? limiting
the authority of the federal government to prohibit hunting or fishing on
any portion of the federal lands; or ? altering in any way any right of any
Indian Tribe. Section Four defines the term ?state? as including the 50
States, the District of Columbia, Puerto Rico, Guam, the Virgin Islands,
American Samoa, and the Commonwealth of the Northern Mariana Islands.
International Association of Fish and Wildlife Agencies Representing Fish
and Wildlife Agencies since 1902 Hall of the States, 444 North Capitol
Street, NW, Suite 725, Washington DC 20001 Telephone (202) 624-7890 Fax
(202) 624-7891 Email: [email protected] Web Page: www.iafwa.org February 9,
2005 Honorable Mark Udall House of Representatives 115 Cannon House Office
Building Washington, DC 20515 Dear Congressman Udall: The International
Association of Fish and Wildlife Agencies, whose government members include
the fifty state fish and wildlife agencies, strongly supports your bill to
reaffirm state regulation of resident and non-resident hunting and fishing.
This bipartisan bill is necessary to address the recent decision of the
Ninth Circuit in Conservation Force v. Manning, 301 F.3d 985 (9th Cir.
2002), cert. denied, 537 U.S. 1112 (2003). That unprecedented decision
concluded that hunting of big game in Arizona substantially affects
interstate commerce such that differential treatment of residents and
nonresidents must be strictly scrutinized by federal courts. By subjecting
to strict scrutiny analysis under the dormant Commerce Clause state
preferences for residents in hunting highly prized species, the Ninth
Circuit decision strikes at the ability of states to maintain the level of
local sacrifice and contribution necessary to produce big game. We
appreciate your interest in rectifying the problems caused by the Ninth
Circuit ruling and appreciate also the effort of your staff to assure the
bill is sharply drawn so that it neutralizes the effect of the court
ruling, but beyond that neither enlarges nor diminishes state authority.
The limitations provisions of section 3 are written to insure that no
existing federal or tribal authority relating to fish and wildlife would be
affected. Both resident and nonresident hunters and anglers contribute to
conservation, yet it is essential to conservation efforts in the several
States that the level of hunting and fishing opportunity for residents not
be eroded. The passion and unity that derives from direct involvement by
residents in fish and wildlife programs is a critical asset in resource
protection and management. The bill you have introduced reaffirms that the
states are the appropriate stewards of fish and wildlife resources within
their borders, the hallmark of the highly successful model of fish and
wildlife protection and management in the United States. Permit numbers,
license fees, hunt areas and season dates are best handled through the
legislative and rulemaking processes at the state level. Thank you again
for your initiative in taking this bill forward. We look forward to working
with you and your staff to achieve enactment of the bill.
Terry Crawforth Director, Nevada Department of Wildlife and President,
International Association of Fish and Wildlife Agencies Cc: State Fish and
Wildlife Directors
limitation litigation.
http://www.ndow.org/about/commission/lit/
The following is from that site. It is long but describes the situation
well.
##### Steele DVM
Statement of REPRESENTATIVE MARK UDALL On introduction of Bill To Reaffirm
State Authority To Regulate Resident and Nonresident Hunting and Fishing
February 9, 2005
Mr. Speaker, today I am introducing a bill to reaffirm the authority of
each state to regulate hunting and fishing within its boundaries, and
especially a state?s authority to enforce laws or regulations that differ
in the way they treat that state?s residents and people residing elsewhere.
A similar Senate bill has been introduced by Senator Reid of Nevada, who
introduced a related measure in the 108th Congress. He has been the leader
on this matter, and I am proud to join in the effort. There is nothing new
about a state?s having different rules for resident and nonresident hunters
or anglers. Colorado draws that distinction in several ways, and many other
states do so as well. And while there have been challenges to the validity
of such rules, until recently the federal courts have upheld the right of
the states to make such distinctions. For example, in 1987 the federal
district court for Colorado, in the case of Terk v. Ruch (reported at 655
F. Supp. 205), rejected a challenge to Colorado?s regulations that
allocated to Coloradans 90% of the available permits for hunting bighorn
sheep and mountain goats.
But a recent Court of Appeals decision marked a change ? something that
definitely is new. In that case (Conservation Force v. Manning, 301 F.3rd
985; 9th Cir. 2002), the federal appeals court for the 9th Circuit held
that Arizona's 10% cap on nonresident hunting of bull elk throughout the
state and of antlered deer north of the Colorado River had enough of an
effect on interstate commerce that it could run afoul of what lawyers and
judges call the ?dormant commerce clause? of the Constitution. Having
reached that conclusion, the appeals court determined that the Arizona
regulation discriminated against interstate commerce ? meaning the ?dormant
commerce clause? did apply and that the regulation was subject to strict
scrutiny, and could be upheld only if it served legitimate state purposes
and the state could show that those interests could not be adequately
served by reasonable non-discriminatory alternatives.
The appeals court went on to find that the regulations did further
Arizona?s legitimate interests in conserving its population of game and
maintaining recreational opportunities for its citizens, but it remanded
the case so a lower court could determine whether the state could meet the
burden of showing that reasonable non-discriminatory alternatives would not
be adequate.Because of the decision?s potential implications for their own
laws and regulations, it was a source ofconcern to many states in addition
to Arizona. In fact, 22 other States joined in supporting Arizona?s request
for the decision to be reviewed by the U.S. Supreme Court. Colorado was one
of those States, and our then-Attorney General, Ken Salazar, joined in
signing a brief in support of Arizona?s petition for Supreme Court review.
Regrettably, the Supreme Court denied that petition. So, for now, the 9th
Circuit's decision stands. Its immediate effect is on states whose federal
courts are within that circuit ? namely those in Alaska, Arizona,
California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as well
those of Guam and the Commonwealth of the Northern Marianas. But it could
have an effect on the thinking of federal courts across the country.
The bill?s purpose is to forestall that outcome, and so far as possible to
return to the state of affairs prevailing before the 9th circuit's
decision.
The bill would do two things: First, in Section 2(a), it would declare that
the policy of Congress is that it is in the public interest for each state
to continue to regulate the taking of fish and wildlife within its
boundaries, including by means of laws or regulations that differentiate
between residents and non-residents.
And, in Section 2(b), it would provide that silence on the part of Congress
is not to be construed by the courts as imposing any barrier under the
commerce clause of the constitution to a state?s regulation of hunting,
fishing, or trapping.
These provisions are intended to speak directly to the ?dormant commerce
clause? basis for the 9th Circuit's decision in Conservation Force v.
Manning.
I am not a lawyer, but my understanding is that lawyers and judges use that
term to refer to the judicially-established doctrine that the commerce
clause is not only a "positive" grant of power to Congress, but also a
"negative" constraint upon the States in the absence of any Congressional
action ? in other words, that it restricts the powers of the states to
affect interstate commerce in a situation where Congress has been silent.
Section 2 (a) of the bill would end the perceived silence of Congress by
affirmatively stating that state regulation of fishing and hunting --
including State regulation that treats residents and non-residents
differently ? is in the public interest. This is intended to preclude
future application of the ?dormant commerce clause? doctrine with regard to
such regulations.
Section 2 (b) would make it clear that even when Congress might have been
silent about the subject, that silence is not to be construed as imposing a
commerce-clause barrier to a state?s regulation of hunting or fishing
within its borders.
The bill is neither a federal mandate for state action nor a Congressional
delegation of authority to any state. Instead, it is intended to reaffirm
state authority and make clear that the ?dormant commerce clause? ? that
is, Congressional inaction ? is not to be construed as an obstacle to a
state?s regulating hunting or fishing, even in ways that some might claim
adversely affect interstate commerce by treating residents differently from
nonresidents.
It's also important to note that the bill is not intended to affect any
federal law already on the books or to limit any authority of any Indian
Tribe. Section 3 of the bill is intended to prevent any misunderstanding on
these points.
Section 3 (1) specifies that the bill will not ?limit the applicability or
effect of any Federal law related to the protection or management of fish
or wildlife or to the regulation of commerce.? Thus, to take just a few
examples for purposes of illustration, the bill will not affect
implementation of the Endangered Species Act, the Migratory Bird Treaty
Act, the Lacey Act, the National Wildlife Refuge Administration Act, or the
provisions of the Alaska National Interest Lands Conservation Act dealing
with subsistence.
Section 3 (2) similarly provides that the bill is not to be read as
limiting the authority of the federal government to temporarily or
permanently prohibit hunting or fishing on any portion of the federal lands
? as has been done with various National Park System units and in some
other parts of the federal lands for various reasons, including public
safety as well as the protection of fish or wildlife.
And Section 3 (3) explicitly provides that the bill will not alter any of
the rights of any Indian Tribe. Mr. Speaker, this bill is narrow in scope
but of national importance because it addresses a matter of great concern
to hunters, anglers, and wildlife managers in many states. I think it
deserves broad support. For the information of our colleagues, here is a
brief outline of the bill and a letter of support from the International
Association of Fish and Wildlife Agencies:
Outline of Bill Section One provides a short title ? ?Reaffirmation of
State Regulation of Resident and Nonresident Hunting and Fishing Act of
2005.? Section Two has two subsections: Subsection 2(a) states that it is
the policy of Congress that it is in the public interest for each state to
continue to regulate the taking of fish and wildlife for any purpose within
its boundaries, including by means of laws or regulations that
differentiate between residents and non-residents with respect to the
availability of licenses or permits for particular species, the kind and
numbers of fish or wildlife that may be taken, or the fees charged in
connection with issuance of hunting or fishing licenses or permits.
Subsection 2(b) states that silence on the part of Congress is not to be
construed to impose any barrier under the commerce clause of the
Constitution to a state?s regulation of hunting or fishing. Section Three
specifies that the bill is not to be construed as ? ? limiting the
applicability or effect of any Federal law related to the protection or
management of fish or wildlife or to the regulation of commerce; ? limiting
the authority of the federal government to prohibit hunting or fishing on
any portion of the federal lands; or ? altering in any way any right of any
Indian Tribe. Section Four defines the term ?state? as including the 50
States, the District of Columbia, Puerto Rico, Guam, the Virgin Islands,
American Samoa, and the Commonwealth of the Northern Mariana Islands.
International Association of Fish and Wildlife Agencies Representing Fish
and Wildlife Agencies since 1902 Hall of the States, 444 North Capitol
Street, NW, Suite 725, Washington DC 20001 Telephone (202) 624-7890 Fax
(202) 624-7891 Email: [email protected] Web Page: www.iafwa.org February 9,
2005 Honorable Mark Udall House of Representatives 115 Cannon House Office
Building Washington, DC 20515 Dear Congressman Udall: The International
Association of Fish and Wildlife Agencies, whose government members include
the fifty state fish and wildlife agencies, strongly supports your bill to
reaffirm state regulation of resident and non-resident hunting and fishing.
This bipartisan bill is necessary to address the recent decision of the
Ninth Circuit in Conservation Force v. Manning, 301 F.3d 985 (9th Cir.
2002), cert. denied, 537 U.S. 1112 (2003). That unprecedented decision
concluded that hunting of big game in Arizona substantially affects
interstate commerce such that differential treatment of residents and
nonresidents must be strictly scrutinized by federal courts. By subjecting
to strict scrutiny analysis under the dormant Commerce Clause state
preferences for residents in hunting highly prized species, the Ninth
Circuit decision strikes at the ability of states to maintain the level of
local sacrifice and contribution necessary to produce big game. We
appreciate your interest in rectifying the problems caused by the Ninth
Circuit ruling and appreciate also the effort of your staff to assure the
bill is sharply drawn so that it neutralizes the effect of the court
ruling, but beyond that neither enlarges nor diminishes state authority.
The limitations provisions of section 3 are written to insure that no
existing federal or tribal authority relating to fish and wildlife would be
affected. Both resident and nonresident hunters and anglers contribute to
conservation, yet it is essential to conservation efforts in the several
States that the level of hunting and fishing opportunity for residents not
be eroded. The passion and unity that derives from direct involvement by
residents in fish and wildlife programs is a critical asset in resource
protection and management. The bill you have introduced reaffirms that the
states are the appropriate stewards of fish and wildlife resources within
their borders, the hallmark of the highly successful model of fish and
wildlife protection and management in the United States. Permit numbers,
license fees, hunt areas and season dates are best handled through the
legislative and rulemaking processes at the state level. Thank you again
for your initiative in taking this bill forward. We look forward to working
with you and your staff to achieve enactment of the bill.
Terry Crawforth Director, Nevada Department of Wildlife and President,
International Association of Fish and Wildlife Agencies Cc: State Fish and
Wildlife Directors
