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History and what it Means to Hunters in Nevada
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Outfitter’s Legal Action against Nevada Wildlife Commission Dismissed
A lawsuit that was brought against the State of Nevada last summer by a New Mexico outfitter that claimed the state's big game tag quota system discriminated against nonresidents has been dismissed.
The lawsuit was based on the Commerce Clause of the United States Constitution, which was adopted to give Congress the power to regulate commerce between states and to reduce discrimination of one state against another state’s residents, or their access to goods and services.
However, recent legislation sponsored by U.S. Senator Harry Reid of Nevada that was passed by Congress and signed into law by President George Bush reaffirmed the authority of states to manage wildlife and recreation.
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 Director Terry Crawforth, claiming that Nevada policy on Big Game Tag Quota Allocation discriminates against nonresidents who “suffer discrimination in access to hunting opportunities in Nevada through the imposition of quotas for each species.”
“It was hunters fighting with hunters,” Crawforth said. “The agency was spending hunter’s money to referee the fight.”
He added that one of his concerns with the issue was that he feared the result would be that the state’s ability to manage wildlife was going to constantly undergo monitoring and oversight by the courts.
“I was concerned that we were spending sportsman’s dollars for referring a fight rather than spending hunter dollars to do good things for wildlife,” he said.
With the fight drawing to an end, Crawforth said it is now important for states like Nevada to look at their systems for allocation of hunting and fishing opportunities to make sure they are reasonable and fair.
“I’m pleased that we got the legislation and the fight is over,” Crawforth said.
The Nevada Department of Wildlife is the state agency responsible for the restoration and management of fish and wildlife resources, and the promotion of boating safety on Nevada’s waters. Wildlife offices are located in Las Vegas, Henderson, Winnemucca, Fallon, Elko, and Reno. For more information, contact the agency web site at www.ndow.org.
The Issue
Discrimination Against Nonresidents
On August 20, 2002, the Ninth Circuit Court of Appeals in San Francisco decided an Arizona case entitled Conservation Force, Inc. v. Manning. The 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 (see attachment 1, Circuits Map), the decision in Conservation Force, Inc. v. Manning is now the law in Nevada and other western states in the Ninth Circuit.
In regard to the lawsuit that personally named each commissioner and Terry Crawforth, the Nevada Attorney General's office filed a motion to dismiss the lawsuit for money damages against individuals.
Nevada responded to the court with a motion to dismiss items in the complaint (see attachment 5, Defendants’ motion to dismiss) and a response to plaintiffs opposition to the motion to dismiss.
Nevada Senator Harry Reid introduced Senate Bill 339 to the U.S. Senate on February 9, 2005. This bill sought to reaffirm the right of states to manage their own fish and wildlife programs. View updates on this bill.
S339 was put on as an amendment to HR1268 "Emergency Supplemental Appropriations Act" that was passed by the House. When the Senate passed HR1268 they added several amendment, one which was Senator Reid's bill S339 "reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act of 2005."Both the Senate and the House assigned members to a conference committee to meet and agree on the amendments or changes made by the Senate. The Committee agreed on this amendment. Both house's voted to confirm the agreed on changes and the bill went to President for his signature.
Nevada Board of Wildlife Commission Policies
The Board of Wildlife Commissioners on Saturday March 26 th decided to implement the big game hunts this year using an objective formula to determine the resident-nonresident shares of the tags. It's a formula designed to adjust the nonresident share by taking into account the fact that Nevadans are in a draw-only hunt and therefore stand a roughly 1-in-2 chance to hunt every year, whereas nonresidents applying in Nevada are favored in their home state with a chance to hunt every year by purchasing an over-the-counter tag if all else fails. View Policy 24 - Hunting Opportunities Among Weapons and Hunter Groups.
March 26, 2005 Reno Gazette Journal article:
New hunting tag rules adoptedPreviously, the Nevada Wildlife Commission met November 5-6, 2004 and the board passed a motion to draft a resolution in support of Senator Harry Reid's proposed legislation, Senate Bill 2978 (SB2978).
The Nevada Board of Wildlife Commissioners later suspended their Policy 20 and sought the assistance of County Wildlife Advisory Boards in exploring regulatory and policy alternatives. An new policy, Policy 21, was then drafted, allowing the season setting process to continue in February 2005.
On August 20, 2002, the Ninth Circuit Court of Appeals in San Francisco decided an Arizona case entitled Conservation Force, Inc. v. Manning. The 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 (see attachment 1, Circuits Map), the decision in Conservation Force, Inc. v. Manning is now the law 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. (See attachment 2, Complaint in Conservation Force, Inc. v. Moran.) The Ninth Circuit decision, (see attachment 3, Conservation Force, Inc. v. Manning, 301 F.3d 985, Ninth Circuit 2002) 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.”What does this mean for NDOW and hunters in Nevada?
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. The Ninth Circuit decision, (see attachment 3, Conservation Force, Inc. v. Manning, 301 F.3d 985, Ninth Circuit 2002) altered decades of wildlife law in the United States. 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.MEMO from Terry Crawforth View the full 09/22/04 memo from Terry Crawforth , Secretary, Nevada Board of Wildlife Commissioners to members of Nevada County Advisory Boards to Manage Wildlife and interested sportsmen:
RE: URGENT REQUEST RE FUTURE BIG GAME TAG DRAWS AND NONRESIDENT QUOTAS
Reno Gazette Journal, 03/26/05
New hunting tag rules adopted03/15/05
Wildlife Commission to Discuss Big Game Tag OptionsLas Vegas Sun, 02/10/05
Bill would protect limits on nonresident hunting tags
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