Nevada sued by out-of-staters for more big game tags

By Don Quilici

The following is a recent press release written by my friend, Kelly Clark, Chief of Conservation Education for the Nevada Department of Wildlife

At the end of her press release, you will also find some additional NDOW information.

Here's Kelly's story:

"A New Mexico outfitter has filed suit against Nevada, claiming that the Nevada big game tag quota system discriminates against nonresidents.

This lawsuit may reduce the number of big game tags allocated to residents and increase the number of tags allocated to nonresidents.

The lawsuit is based on the "dormant" Commerce Clause of the United States Constitution, which was adopted to give Congress the power to regulate commerce among the states, and to reduce discrimination of one state against another states' residents, or their access to goods and services.

In the complaint, filed July 20 in US District Court, Jean Taulman, Lawrence Montoya, Filiberto Valerio, and United States Outfitters, Inc., sued members of the Nevada Board of Wildlife Commissioners and Nevada Department of Wildlife (NDOW) Director Terry Crawforth, claiming that the Nevada policy on Big Game Tag Quota Allocation discriminates against nonresidents who "suffer discrimination in access to hunting opportunities in the State of Nevada through the imposition of quotas for each species."

The United States Court of Appeals for the Ninth Circuit ruled that states must justify limits on nonresidents as the least discriminatory way to protect the valid interest of the State in maintaining hunting opportunity for its residents.

On July 13, 2004, the United States District Court for the District of Arizona held that Arizona's system, which is similar in some respects to Nevada's, did not meet that standard.

Based on the interstate commerce clause in the United States' Constitution, the District Court enjoined Arizona from using non-resident quota caps to allocate big game tags.

Arizona chose to issue an additional 805 big game tags for 2004 deer and elk hunting. Of those 805 extra tags, 700 went to nonresidents and the remaining 105 went to residents.

In Arizona, like Nevada, competition for big game hunts is intense.

The Board of Wildlife Commissioners plans extensive discussions on the matter at their Nov. 6, 2004 meeting in Reno, and hopes that all big game hunters will participate in that meeting, as well as at their local County Advisory Board to Manage Wildlife meetings scheduled for October.

The Nevada Department of Wildlife is the state agency which is responsible for the restoration and the management of fish and wildlife resources, and the promotion of boating safety on Nevada's waters.

Department of Wildlife offices are located in Las Vegas, Henderson, Ely, Winnemucca, Fallon, Elko, and Reno."

That's the end of her press release.

Here is some additional NDOW information on that subject:

On August 20, 2002, the Ninth Circuit Court of Appeals in San Francisco decided an Arizona case entitled Conservation Force, Inc. v. Manning.

The Ninth Circuit Court held that state authority over big game hunting is limited by the Commerce Clause of the U.S. Constitution.

This means that discrimination against nonresidents is strictly limited.

In fact, Arizona could not justify its nonresident quota caps to the federal trial court after remand by the Circuit, and Arizona lost its case in a ruling on July 13, 2004.

Since Nevada is in the Ninth Circuit, the decision in Conservation Force, Inc. v. Manning is now the law also in Nevada and other western states in the Ninth Circuit.

Therefore, Nevada's caps on nonresident big game tags may not survive the legal challenge which has now been brought against Nevada by the same plaintiffs who sued Arizona.

The Ninth Circuit Court decision altered decades of wildlife law in the United States. It concluded that sport hunting is an activity that affects commerce, and is therefore subject to the Commerce Clause of the United States Constitution.

The court drew this conclusion for two reasons: (1) because "hunting in Arizona promotes interstate travel of people, like the plaintiffs, who want to take advantage of Arizona's excellent hunting opportunities;" and (2) because "Arizona allows the nonedible portions of bull elk and antlered deer taken from its lands to be sold in interstate and international markets."

Since Nevada falls within the same judicial circuit, the decision in Conservation Force, Inc. v. Manning is now the law in Nevada and other western states in the Ninth Circuit.

Under Commerce Clause law state regulations must pass one of two tests. If a regulation discriminates on its face (that is to say, overtly), then a very strict test requires that (1) the regulation serves a legitimate state interest, and (2) the state "has no other means to advance" its legitimate interest.

To date, Nevada has responded to the court with a motion to dismiss items in the complaint and a response to plaintiffs opposition to the motion to dismiss. The Nevada Board of Wildlife Commissioners has suspended their Policy 20 and is seeking the assistance of County Wildlife Advisory Boards in exploring regulatory and policy alternatives.

Editor's Note:

There you have it in a nut shell: Nevada is being sued because some out-of-staters feel they are being cheated out of making money from Nevada wildlife, because we only issue 10 percent of our total big game hunting tags to non-residents.

The Nevada State Board of Wildlife Commissioners will meet on Saturday, Nov. 6 to address this lawsuit.

That meeting will be held at the Nevada Department of Wildlife Headquarters conference room, located at 1100 Valley Road in Reno.

If you have an opinion, one way or the other, plan to attend that meeting or call the Nevada Department of Wildlife at 6688-1500 during their regular business hours.

• Bet Your favorite Pigeon

Bet your favorite pigeon that he can't tell you how I feel about this lawsuit.

If he says, "Don has said that if he loses his 12 total bonus points for a rifle bull elk tag, he just might sue Jean Taulman, Lawrence Montoya, Filiberto Valerio, and United States Outfitters, Inc. for depriving him of an elk tag after all of these years of waiting," he could be a close friend of mine.