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Conservation Force, Inc. v. Manning

 

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Hunters and hunting guides residing in New Mexico challenged an Arizona regulation imposing a ten percent cap on nonresident hunting of bull elk and antlered deer as unconstitutional under the Commerce Clause.[1] The district court granted the state summary judgment, finding that the Commerce Clause did not apply because hunting was recreation and not an essential right guaranteed under the Privileges and Immunities Clause.[2] The New Mexican hunters and guides appealed and the Ninth Circuit reversed, holding that the district court applied the wrong test by applying the Privileges and Immunities Clause test. Declaring the dormant Commerce Clause the proper test, the Ninth Circuit found that it applied to the regulation and remanded the case for a finding of whether Arizona met its burden of proving that there were no less discriminatory options for conserving elk and deer and providing recreation for its citizens.

Arizona enjoys world renown for its bull elk and antlered deer populations due in great part to the state’s conservation efforts. Based on perceived wishes of state hunters, the Arizona legislature passed a ten percent cap on nonresident hunting in 1991 to preserve greater hunting opportunities for residents. New Mexico hunters and guides challenged this regulation as a discriminatory burden on interstate commerce.

The Ninth Circuit found that the district court improperly applied the Privileges and Immunities Clause to a dormant Commerce Clause issue. The Ninth Circuit cited a United States Supreme Court case, Oregon Waste Systems, Inc. v. Department of Environmental Quality,[3] which held that under the dormant Commerce Clause the state could not create a regulation that “unjustifiably . . . discriminate[s] against or burden[s] the interstate flow of articles of commerce.”[4] The court defined the proper standard for the applicability of the Commerce Clause as whether it has a “‘substantial effect'” on interstate commerce.[5] The Ninth Circuit found that hunting in Arizona substantially affects interstate commerce in two ways. First, due to the high quality of hunting in Arizona, the cap affected the flow of people between states as much as other recreational activities that the Supreme Court had determined fall under the dormant Commerce Clause.[6] Second, the Ninth Circuit determined that the cap on nonresident hunters had a substantial effect on interstate flow of goods because Arizona allows the interstate and international sale of antlers and nonedible animal products. Thus, the Ninth Circuit reversed the decision of the district court, stating that the dormant Commerce Clause applied to the hunting regulation.

Having decided that the dormant Commerce Clause applied to the Arizona regulation, the Ninth Circuit next considered whether the regulation facially discriminated against nonresidents or was facially neutral, but had a discriminatory effect. Finding that the regulation restricted hunting of game purely on the basis of state residency, the Ninth Circuit held that the regulation was discriminatory, and therefore “subject to the strictest scrutiny.”[7] Based on this standard the court examined whether Arizona had met its burden of proving the regulation was narrowly prescribed to meet legitimate state interests.

Although the Ninth Circuit found that Arizona did provide evidence of legitimate interests for applying the cap, specifically conservation of the game population and maintaining recreational hunting for residents, the Ninth Circuit did not find evidence that the state considered other nondiscriminatory options which would adequately protect that same interest, pointing out that political support of state residents could not justify discrimination. While remanding for an examination of whether the state met this burden, the Ninth Circuit commented that the burden of conservation cannot be placed on nonresidents alone, and that similar regulations in other states would not be sufficient evidence that the cap was narrowly defined to equal the state’s interests.


[1] U.S. Const. art. I, § 8, cl. 3.

[2] U.S. Const. art. IV, § 2, cl. 1.

[3] 511 U.S. 93 (1994).

[4] Id. at 98.

[5] Conservation Force, Inc. v. Manning, 301 F.3d 985, 993 (9th Cir. 2002), cert. denied sub nom. Golightly v. Montoya, 123 S. Ct. 902 (2003) (quoting Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 574 (1997)).

[6] See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 570-71 (holding that camping regulations invoked the Commerce Clause).

[7] Conservation Force, 301 F.3d at 995.

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