USO & the Ninth Circuit's Montoya Decision

[HEEFMAN]

I've read many threads on this forum about USO, George Taulman, and the Ninth Circuit's decision in the Montoya case. I have no affinity for USO and Taulman and have never used their services in any way, but all the commentary caused me to actually read the opinion written by the appellate court. After doing so, it seems clear on the face of the opinion that there are any number of legitimate means for a state such as Arizona to accomplish the same goal of limiting non-resident tags without using a rigid 10% cap.

First, the Ninth Circuit clearly found that Arizona had met its burden of proving that it has "legitimate interests in preserving the health of its game populations and maintaining recreational hunting opportunities for its citizens." According to the court, however, Arizona failed to meet its additional burden of showing that a 10% non-resident tag cap was "narrowly tailored to its legitimate ends." Significantly, the court said there could be other means to advance the same interests. The court therefore left the door wide open for Arizona regulators to use other means to provide the same hunting opportunities for its residents, other than using a "rigid cap" for non-resident tags. Arizona should do just that, don't you think?

Second, the Ninth Ciruit held that Arizona had not proven the need for a 10% non-resident cap because, in fact, the majority of "big game hunts [in Arizona] experience nonresident pressure below 5%." That was an established, undisputed fact before the court. Why, then, is a 10% cap necessary when most hunts don't even reach that breaking point for non-resident tags? I'm particularly interested in the answer to this question because Oregon, where I live, also caps non-resident tags.

Third, the Ninth Circuit distinguished the dormant Commerce Clause problem in Arizona by comparing it to Montana law and a US Supreme Court decision called Baldwin v. Fish & Game Comm'n. In Baldwin, the Supreme Court upheld Montana's practice of charging far greater elk tag fees to non-residents. Of significance was the fact that elk hunting in Montana is not "commercial" because hunters cannot sell any part of the animal. In contrast, Arizona permits that sale of non-edible animal parts, which implicates the dormant Commerce Clause in the first instance. Thus, Arizona's simple and easy answer is to no longer allow the sale of any animal parts from recreational hunting. Why not do so?

Why all the fuss over this issue, when in fact the states can resolve the problem without catering to the likes of USO?

 

[MNHunter]

I too read both cases today and completely agree with you. It seems an easy fix for the states. One thought I had was the states issuing double bonus points as opposed to the one that non-res would get if unsuccesful in the draw. I also heard that AZ is kicking around the idea of issuing points for doing community service conservation activities. I think that it is a great idea and as a non-res, I can't complain with that.

 

[JimNv]

Heef, its a good theory you have there. The only problem I see with this is that folks that collect and sell shed antlers, people who craft items out of hair, antlers and the like, could be restricted in selling said wares. One would have to very careful on the legislation made to protect this lest you have a whole 'nuther bunch to buck.

Wonder what the verbage in the Montana regs reads like? I know that USO has Mt in its sights, but you get the sense those folks think they are immune. I imagine the Az residents thought they were too.

 

[RLH]

it really doesn't matter to joe hunter what the courts think or say. what really matters is that most folks feel like their state should be able to make it's own rules and feel like guys like taulman and his "boy" griz are just carpetbaggers who have no interest in any state other than what they can get from it in dollars. hunting is a privilege taken very seriously by a lot of people and when someone messes with it, passion get high. hunting is a "rite", not a "right", to a lot of folks. if you don't know the difference, look it up. deer season is a sacred time to hunters. just like lent or hanukkah or any other religious time is to folks that lean that way. uso and the courts are messing with my religion. if a guy can't even have a little edge on permits in his own state it's a bad deal. pretty soon we'll all be having to go to other states to hunt because the odds will be in favor of nonresidents in every state and only folks with a lot of money will be able to apply. it's true that Arizona could have done a better job than they did, but they didn't, and we all have to live with it. i'm not a lawyer, i am a hunter. and i really resent lawdogs hindering what i like to do.

 

[dwalton]

RLH,

I agree with you on the lawdogs. I don't think you see the odds favor the non-residents, though. Take Nevada for example; in 2004 there were 27,190 resident deer applications and 10,050 non-resident applications; for sheep there were 5959 residents and 4870 non-residents. I'm sure Arizona's numbers are similar. Now figure in what Arizona will do this year (no on-line apps, full fees up-front: pushing $4,500 to apply for deer and sheep), and I'll bet non-resident participation actually drops off a bit. As with any ruling, there are ways to get around the decision, and still stay legal. Best of luck to you in the 2005 draws!

 

[MNHunter]

RLH,
I dont think that a "little edge" is a 90/10 split res/non-res, there are other ways to achieve preference for residents. When the states figure that out, they will have met their burden under Montoya.
Dwalton,
AZ is playing right into the hands of USO. They raise the non-res license and require payment up front. Are people going to turn away who already have points? Some may but I bet that places like Cabelas and USO see their client list soar. I've used Cabelas for one state the last few years and I will probably have them fron the AZ money for me too as I already have enough tied up in other states each year. The ones who really want to hunt will stick with it and USO will only see profits rise as a result of AZ reaction to losing the suit.
just my 2 cents-

 

[RLH]

dwalton, you confused me in your figures. are you saying that because there were so many nonresident nevada app's that they should get more permits? mnhunter, i think that making folks pay up front is one of the ways to deal best with uso and cabelas and the other "hunter pools". the way it has been, the hunter pools could send in applications for as many people as they wanted, and only be out the application fee up front, nothing for the permit until it was drawn. this allows them to apply many, many times, for just a relatively small amount. the hunters pools work by guys sending them money to use as they want to, until they get a permit. if you do away with online applications and make it money up front, they can't do that. they can only send in as many applications as they have money for. plus it's gotta add a lot of cost and hassle for them to fill out all those app's by hand. don't get me wrong. i like to see guys hunt. especially guys that have to work for it. save up, cut corners, whatever ya gotta do to hunt. it's means more to em. and i like to see em be sucessfull. and i think a guy oughta be able to hunt anywhere he can. but i also think that each state and it's residents have the right to make up their rules and feel it's the obligation of nonresidents to live with those decisions. i've been trying for over 30 years to get an Az. sheep permit. i have all the points you can get. still, some nonresident with no points will get at least one permit over me, ever year. i hold em no grudge. it's the luck o' the draw. but don't tell me that nonresidents need even more. i apply for other states. if get drawn great, if i don't, i deal with it.

 

[MNHunter]

RLH,
I don't see why anyone would use USO to have them apply for a state like UT, NM, AZ etc as you dont have to send in the money up front. Charging tag fees up from, IMO will then drive people who used to apply in those states to places like USO as they can certainly afford to front all the tag fees the clients could ever want. That is the the way I see it. If someone is paying USO $155 to "float" a UT sheep tag (that they don't actually float) that they could do online themselves for $5....well.

 

[HEEFMAN]

I agree with MNHunter that Arizona is playing right into the hands of USO and other outfitters who will provide the application service and front the fees. That's a bad move.

RLH, you hit the nail on the head when referring to resident hunters wanting an edge over non-residents. I don't disagree with that concept, and I undestand that hunting rights are viewed and protected with great passion, as they should be. We need to do so intelligently, however, and not allow emotion to get in the way.

That fact of the matter is that states can legitimately create the desired edge; they simply need to do so correctly. What they cannot do, under the Montoya decision, is use political pressure by residents who demand discrimination as the basis for creating a hard cap on nonresident tags. Political pressure simply does not justify discrimination. Creating the desired edge is just more complex now, such as MNHunter's good suggestion of giving extra bonus or preference points to residents for deserving reasons.

Of course, there's the very real alternative of making recreational hunting a non-commercial activity by doing away with the sale of non-edible parts of the animals. I think it was JimNV who cautioned about making that change in the law. Frankly, I don't know how much money some people could lose if Arizona were to take away the right to sell non-edible parts. I'm not in that industry.

The bottom line there probably will be more lawsuits funded by USO. I hate to see hunters vs. hunters in litigation. But USO has positioned itself as the champion of nonresident hunting rights, and it surely has a large cache of money to funds its litigation strategy. Moreover, USO seems to be doing a very good job of picking its fights in the right places and at the right time. USO's "lawdogs" are doing their job, jealosly and effectively. The western states need to be a step ahead of them, rather than reacting poorly after the fact.

Thank you for the comments, folks.