Baldwin v. Fish and Game Commission of Montana – Oral Argument – October 05, 1977

Media for Baldwin v. Fish and Game Commission of Montana

Audio Transcription for Opinion Announcement – May 23, 1978 in Baldwin v. Fish and Game Commission of Montana

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Warren E. Burger:

Court will hear arguments first this morning in 76-1150, Baldwin against Fish and Game Commission of Montana.

Mr. Goetz, you may proceed whenever you are ready.

James H. Goetz:

Mr. Chief Justice and may it please the Court, my name is James H. Goetz.

I am from Bozeman, Montana.

I represent the appellants.

This case presents a challenge on constitutional grounds to the statutory system of the State of Montana by which big game licenses are made available to hunters who are not residents of Montana.

The Montana statutory scheme is challenged on the basis of two provisions of the United States constitution, Art.IV, § 2, the Interstate Privileges and Immunities Clause and Amendment Fourteen, the Equal Protection Clause of that Amendment.

The statutory system is challenged in two parts, the first is challenge goes to the severe license fee differential, implicit in the Montana statutory scheme that is the differential between resident and non-resident big game hunters.

The second challenge goes to the requirement that the non-resident in order to hunt in Montana must buy what is called a Combination License and that Combination License, I believe is described adequately in the appellant’s opening brief.

Byron R. White:

Well, is that a latter really any different from the first?

All that required is to pay some money is it not?

James H. Goetz:

That all of it required is to pay some money to get th combination license.

I think it presents a —

Byron R. White:

But it is just a — you can get it if you just pay some money, quite a bit of more money.

James H. Goetz:

Yes, that is true, in that sense, it is the same and in that sense, our position, appellant’s position is that it is a means of indirectly gouging, if you will of a non-resident hunter to increase the fees.

However, in the constitutional sense it is different, because the state shows to defend the Combination License, four reasons unrelated to the monitory or a cost justification.

So I think it presents a different issue in that regard.

Warren E. Burger:

Do you analogize this to your legal tie-in sale?

James H. Goetz:

Yes, I think I would, I have not thought about it in that context right away, but I think it would be something like an illegal tie-in and in the sense that it entails an indirect imposition which must be undertaken by a person in order to avail themselves of the right to hunt.

I think in that sense it is much like an Anti-Trust Tie-In, if I understand your question correctly.

Lewis F. Powell, Jr.:

Did the District Court address the Combination License issue?

James H. Goetz:

In my judgment the District Court did not, there is one Footnote in the District Court’s opinion which suggests that the District Court addressed that issue simply as another aspect of the increase in fees, somewhat along the lines of Justice White’s question here today, I believe it is clear the District Court did not address it directly.

Lewis F. Powell, Jr.:

Do you think it is before us?

James H. Goetz:

Well, yes I do because it was presented in the District Court and the District Court rejected the plaintiffs and the appellant’s challenge to the Combination License and there is absolutely no doubt from the record that that issue was presented squarely and specifically and as I say, it was referenced in the Footnote, the District Court did not address it at least as I thought they should have as a separate issue.

Now, the position of the appellants on the constitutional issue is that the Combination License is simply unconstitutional under both provisions presented.

With respect to the fee differential as a severe fee differential, it is position of appellants that that as supplied in Montana is unconstitutional.

But that the case Toomer v. Witsell and the companion case from Alaska, Mullaney v. Anderson, leave room on the fee differential for some additional assessment for non-residents.

If that assessment is reasonably related to one of two factors or both, those factors are if the state residents can contribute taxes which go to the resource or to conservation, which the nonresident does not then to that extent the non-resident can be assessed a higher fee.

The second aspect of the Toomer and Mullaney standard is that if the non-resident imposes some additional enforcement burden, then to that extent the non-resident can be assessed an additional fee by the state.

Do I understand you to agree with those propositions.

James H. Goetz:

Yes, I certainly do Your Honor.

William H. Rehnquist:

Both Toomer and Mullaney involved commercial enterprises, that kind of calling or making a living thing that I think Bush at Washington first referred to in Coryell v. Corfield, do you think those automatically carry over to big game money which certainly is not a way of making a living at least for the people who come in and hunt?

James H. Goetz:

Your Honor, I do not think that they automatically carry over, that is I do appreciate a difference between recreation and the pursuit of a common calling.

However, it is appellant’s position here that when logically analyzed and with due regard to the precedent in the area that indeed Toomer and Mullaney do apply to the present situation.

If I may expand on that, I would say that that there is some question about how far the privileges and immunities as far it goes to what it applies, and I have looked at the two most recent or two of the most recent announcements by this court.

The most recent being Austin v. New Hampshire and there the case did not not my in my guessing, address very specifically the question of what is the nature of the right, rather the opinion of the court went to the purposes of the privilege, the interstate Privileges and Immunities Clause namely to promote comity among the states and that issue was certainly and that purpose is certainly brought to bear in present case.

William H. Rehnquist:

Do you think that loomed large in the minds of the framers of the constitution, the right of the people in one state to hunt elk and another?

James H. Goetz:

No, I do not.

I think it was probably not significant question at that time.

Potter Stewart:

There were no Elk in the East I think.

James H. Goetz:

I do not think there were any elk in the East, but at any rate, the premium on recreation was not nearly so great at that time for obvious reasons, plus I suspect, but I do not know, I suspect that hunting and fishing were not licensed at all.

Thurgood Marshall:

Mr. Goetz, comment on how many states have laws like this?

James H. Goetz:

Well, the Appendix of the Appellee sets forth the list of states.

In the first place, with respect to the Combination License requirement, I think no state other than Montana has it.

Thurgood Marshall:

Well, that is what I am talking about.

James H. Goetz:

Yeah, the Combination License, I am not aware of any state that has that kind of requirement.

Thurgood Marshall:

So all we are dealing with is Montana.

James H. Goetz:

In so far as the Combination License is involved.

Well how many licenses are applied for Montana, I mean, only people are involved in it.

James H. Goetz:

Well, in the last year for which figures are available, there were approximately 31,000 non-resident hunters.

In Montana?

James H. Goetz:

Yes.

Thurgood Marshall:

Only Montana?

James H. Goetz:

Yes.

Thurgood Marshall:

Elk hunters?

James H. Goetz:

No, elk hunters were substantially fewer somewhere in the neighborhood of — I would have to consult defendant’s Exhibit A, but somewhere in the neighborhood of 14,000 and so there is a statutory limit for non-resident Combination Licenses, now in the Montana Statute which I have referenced in my brief, that figure of 17,000 that figure, has not been approached.

Thurgood Marshall:

How many elks do you have in Montana?

James H. Goetz:

Well, I am not sure.

Thurgood Marshall:

If you got 14,000 shooting at them, then how many do you have left?

James H. Goetz:

Well, we have got a substantial number of elk in Montana and the elk is quite widely and all elk are not shot.

James H. Goetz:

In other words, not all hunters get elk, those are 14,000 non-residents, of course, the number of residents is much greater than that.

So we have substantial number of elk hunters.

Thurgood Marshall:

Well, then I conclude there are whole lot of bad shots.

James H. Goetz:

They have to see them first to shoot them.

Mr. Goetz how long have these disparate fees were in effect in your state?

James H. Goetz:

I am not sure, it has been quite a substantial period of time, the precise fee has changed of course with time, the most recent being in 1975.

And this is the first challenge that you know to the —

James H. Goetz:

To the fee structure it is.

There was a requirement in Montana that non-residents be accompanied by resident outfitters when hunting and that was found un-constitutional by the Montana Supreme Court on Equal Protection grounds in 1975.

But to the fee structure, to my knowledge, this is the first Montana case.

Now, there is a New Mexico federal case, which I have referenced in my reply brief that was decided in August of this year.

Now, there are aspects of your statutory structure where no distinction is drawn between resident and non-resident, is that not so?

Bow and arrow shooting?

James H. Goetz:

Yes, I believe that is true.

And wild turkeys?

James H. Goetz:

Yes.

Do know why there is a different treatment there?

James H. Goetz:

No I do not frankly.

Warren E. Burger:

Maybe the mortality rate of elk is not very high with bows and arrows, is that it?

James H. Goetz:

Well, it is rather rare that an elk would be taken by bow and arrow and I do know from my own experience, it is not on the record, but the turkey is not a very prevalent game bird in Montana and it might be that it is just not thought to be a very important issue.

If I may —

Potter Stewart:

You are saying, just before you proceed that the total number of non-resident elk hunters is limited to a figure of 17,000 and what they would be drawn by a lot if there were more than that many applicants?

James H. Goetz:

I believe that is the — as I read the statute, it is not clear how they do that and it maybe that the State Fishing Game Commission has to implement that by regulation.

My understanding it is on a first come first serve basis of whether it would be that or a deadline and then some lot, but they have not reached that figure so that —

Potter Stewart:

It has never been necessary to determine —

James H. Goetz:

And that has not been challenged of course in this lawsuit.

William H. Rehnquist:

Do you think it would be challenged under your line of reasoning, if anybody from who reside in Montana was able to get an elk license, but there was flat sealing on the number of out of staters who would get it, but no license fee differential.

James H. Goetz:

I believe that under my line of reasoning that would be equally or that would probably be faulty, I must confess that since that is not in the case, I may not have thought through it as carefully as I have the issues here, but it is my position that that probably would be constitutionally faulty also.

Potter Stewart:

And, a fortiori, if Montana should say that there should be no non-resident hunters, only our residents should hunt out.

James H. Goetz:

Absolutely, I believe that would be flatly unconstitutional.

Mr. Goetz, in my home state there is a provision that senior citizens like most of us up here over the age of ‘x’ years can get a fishing license without charge at all, but they had to get a license, under your line of reasoning would that be unconstitutional?

The minimum significance, they would catch a fish.

They are the ones that always are —

James H. Goetz:

I think that is an excellent answer and I would like to stand on that.

That is what your case amounts to — you better dig out more than that —

James H. Goetz:

No, I think the case presents a much more significant issue where I would not be here.

But in order to respond to your question, I believe that well, if we look at the senior citizen classification under the Equal Protection Clause as this court did in the Merger, Massachusetts Board of Retirement v. Merger, it was decided to review that on a minimal scrutiny basis and if the state has reasonable grounds for that approach then that would pass constitutional muster.

The difference between that and I would be willing in the Minnesota case to that is where you are from, is not it.

That is the state you are talking about, but I would be willing to accept the constitutionality of that kind of discrimination, if we carry that over to the present case, I think we have an explicit holding by the District Court that the discrimination is not justifiable on any cost basis and I interpret that to be there are no rational grounds under the Equal Protection Clause, unless you go to what the District Court went to and that is the political justification and I think lies one of the difference between your situation and the Montana situation and my feeling is we have unanimous finding by the District Court that except for the political justification, this non-resident fee differential cannot be justified in Montana.

William H. Rehnquist:

That is another factual finding, now that is a conclusion of law, is it not?

James H. Goetz:

No, I think that is a factual finding in this sense, facts were taken by the District Court.

Testimony was taken, the District Court looked at that testimony, looked at the rationalization offered by the state and then said, looking at the evidences can not be justified.

Even giving due regard to the presumption of constitutionality.

William H. Rehnquist:

But the question of whether a statute may be justified under a particular set of facts, under a conceivable set of facts, is itself a question of law?

James H. Goetz:

Well, I agree from that perspective, there has to be legal rubric within which to fit the facts and that legal rubric in the District Court was this, the appellants were arguing that the Toomer v. Witsell standard is applicable.

That is to the extent that higher enforcement cost or conservation resident taxes were not paid or posed where higher enforcement costs were posed by nonresident, their conservation resident taxes were unpaid, there could be a higher non-resident fee and that is a legal rubric within which the court found in my judgment that factually the state cost justification does not fit into that.

I guess, I would classify that as a mixed law facts.

Byron R. White:

Could you tell me or is it in the record, what percentage of the elks that are taken on federal land?

James H. Goetz:

75% of the elk taken in Montana are taken on federal land.

Byron R. White:

I take if all of the United States believes that sort of thing and that state under our cases, if Congress were so inclined, I suppose, it could limit or regulate the taking of elk on federal land.

James H. Goetz:

In my judgment under the property clause, constitutionally Congress could on the federal lands have a federal license and I might add to that one of the worries posed on I think both sides implicitly in this case, from a state’s right standpoint is a federal license.

My feeling is —

Byron R. White:

Or may be not a federal license but a limit on what the states could charge.

James H. Goetz:

Right, either one, federal what Montana might call federal intervention, my feeling is that if the appellant’s position were accepted here and if reasonable constitutional limitations were placed on the states, it would pose less threat in terms of outside what is perceived to be outside or federal influence with the game in Montana.

Warren E. Burger:

Do you think Congress could preempt this area with exclusive license or would they have to do it concurrently with the states as with the duck standpoint of state license.

James H. Goetz:

I am not sure what they would have to do, in terms of hunting on the federal lands, I guess, my feeling is that Congress could preempt the area, if it wanted to, in so far as gaming of course, on non-federal lands, I am not sure if Congress has any interest in doing that.

So I think, I would separate the two in that sense.

John Paul Stevens:

Mr. Goetz, your cost, the cost problem, the cost justification issue is that relevant to both your equal protection claim and your privileges and immunities claim or does it have different constitutional significance

James H. Goetz:

It is relevant and important under both.

However, there may be different standards of judicial review under the Equal Protection Clause as opposed to Privileges and Immunities Clause.

John Paul Stevens:

Well, is there any difference in the standard of what the state and according to your theory must prove in order to cost justify that license be required?

James H. Goetz:

No, according to our theory that standard would be the same and we take that standard of course, from Toomer v. Witsell and there is no, well, I was going to say to my knowledge there is no Equal Protection case that imposes that same standard.

However, it should be recognized in Takahashi v. Fish & Game Commission of California was decided at the same time of Toomer and is an Equal Protection Clause and I think juxtaposing those two cases, given their similarities in the time proximity that really, probably that Toomer v. Witsell standard applies also under the Equal Protection standard.

I have reserved ten minutes for rebuttal, so I will conclude at this point.

Warren E. Burger:

Very well, Mr. Goetz.

Mr. Lenzini.

Paul A. Lenzini:

Mr. Chief Justice and may it please the Court.

Appellants challenge to separate features at Montana’s statutory beginning licensing, first the Combination License and second the higher fees imposed upon non-residents.

Montana, however is by no means unique among the states in charging higher fees for hunting by nonresidents, indeed virtually every state does charge higher fees.

Resolution, the constitutional issue here requires analysis of the asserted right as well as a regulatory interest of the State of Montana in regularly in big game species.

Appellants claim that this case is covered by Toomer v. Witsell and that the P&I Clause of the constitution requires that non-residents should be treated on terms of substantial equality with residents.

Either the appellants or the dissenting judge below, however assert that recreational hunting is a fundamental privilege and immunity and indeed no case has ever held rather appellants argue that extraneous features involved here call them to play the protections of the Privileges and Immunities Clause, namely, the fact that 75% of the elk are taken on federally on land and the fact that the state receives financial assistance from the federal government for wildlife restoration programs.

Appellees submit that this analysis without any support in the judicial history of the P&I Clause and indeed from the earliest interpretation in Corfield v. Corfield, the courts have consistently focused on the nature of the right itself.

The clause has never been considered to guarantee the nonresident, equality and all rights and privileges and the fundamental right analysis has been consistently followed.

Neither may the appellants transform somehow this recreation activity in to an activity covered by the privileges clause, simply because of federal landing involved.

Congress has declared that on the national forest and indeed much the land in Western Montana where the elk is taken is national forest and has declared that in 60 U.S.C. Section 4e, the jurisdiction over the national forest resides in the state, both civil and criminal.

Indeed in the Multiple-Use Sustained-Yield Act of 1960, affecting the National Forest, in USC528, Congress specifically declared that nothing there in shall be considered affecting the jurisdiction, a responsibility.

Byron R. White:

Would it be your position then that the State of Montana, could, if it wanted to, just exclude non-residents entirely from recreational hunting?

I mean, in so far as the Privileges and Immunities Clause is considered.

Paul A. Lenzini:

In so far as the Privileges and Immunities Clause is concerned, I believe it could with respect to the Equal Protection Clause, we have a different —

Byron R. White:

Similarly with the parks.

Paul A. Lenzini:

With the national parks?

By law there is no hunting permitted at all.

Byron R. White:

Yeah, but how about state parks, just reserving state parks for the use of citizens?

Paul A. Lenzini:

I submit that under the Privileges Clause, the court could because a fundamental right is not involved.

I think we have a different question under the Equal Protection Clause, there I believe that unlike this case, where we have a substantial number of nonresidents coming into Montana, there I think the question would probably require a higher level of scrutiny by this court.

Byron R. White:

Well, let us just say the state says that for political purposes namely to encourage our citizens to be willing to put up the money for state parks, we are going to exclude nonresidents, it is just recreation, they just only want to do is to camp and walk around.

Paul A. Lenzini:

If the state seem absolutely deterred, all incoming non-residents, I think we have a different situation in this case.

Byron R. White:

Don’t you think that that would be reached by the Privileges and Immunities Clause?

Paul A. Lenzini:

I do not think it would be reached by the P$I Clause.

Byron R. White:

And then the Equal Protection?

Paul A. Lenzini:

Because I do not think that —

Byron R. White:

In Equal Protection, you would say you would need more than a rational basis?

Paul A. Lenzini:

That is not the case of course, but I think that we would have to look at different reasons for the state that is what is rational in that situation might be different than –

Byron R. White:

But the interest remains the same, the interest in nonresidents and you are saying that under the Equal Protection Clause, you would say that interest in entitled to more weight?

Paul A. Lenzini:

I think that under the Equal Protection Clause, where there is — if federal lands are involved for example, I think that there might well be a different measure of the states conservation activity than in the situation here.

Potter Stewart:

Your point is that under the Privilege and Immunities Clause, that that cause is simply inapplicable because this right is the right that is not recreation, it is not covered by that clause.

But non constant, the Equal Protection Clause is applicable because it need not be any kind of a right for Equal Protection analysis is it not?

Paul A. Lenzini:

Well, under the Equal Protection Clause, implicit or explicit constitutional rights —

Potter Stewart:

Equal Protection Clause has to do with classifications.

Paul A. Lenzini:

That is correct and where the classification is not invidious as here but where the result is a total exclusion, I could see the court applying a different level not necessarily strict scrutiny but –.

Byron R. White:

Because in your mind of the interest so called involved.

Paul A. Lenzini:

Because of the result I think, Your Honor.

John Paul Stevens:

I must say I just do not follow the reasoning because the classification in either case, we are taking of Equal Protection, now let us forget about Privilege and Immunities, the classification between residents and non-residents, you say that is a legitimate classification, if it is a legitimate classification why cannot they say no non-residents at all.

Here you have said, no nonresidents who cannot afford $240 or whatever it is, but let us say it is an Equal Protection Clause.

Paul A. Lenzini:

I think that conceivably a state could say no nonresidents at all, it would depend upon the rationale of the state what it was trying to do, and I think we had for example a situation we had a rare species and only a limited number could be hunted, I believe that the state can readily say and demonstrate the need.

John Paul Stevens:

In all these cases as Justice White points out, we do not want too many people overusing our park facilities and we would rather save them for the taxpayers of pay forums, so we will simply exclude our (Inaudible), what is wrong with that?

Paul A. Lenzini:

I simply believe that it is not a fundamental right and I believe that the classification is not invidious.

Potter Stewart:

Toomer against Witsell what is wrong with that?

Paul A. Lenzini:

Well, Toomer versus Witsell was a P&I clause case and in Toomer versus Witsell We are talking only Equal Protection.

John Paul Stevens:

But that was a racial classification, wasn’t it?

Paul A. Lenzini:

That is correct.

As I recall in dry years, South Dakota has limited present resident hunting to residents on occasion.

Paul A. Lenzini:

That is correct, that case came to the Supreme Court and it was — and appeal was dismissed because of lack of a substantial federal question.

With respect to the question of federal aid, the Federal Aid in Wildlife Restoration Act provides an 11% excise tax on certain scoring arms and ammunition and of course sends money back to the states for wildlife restoration programs.

Montana is a beneficiary of that, but there is nothing in the statute, the Pittman -Robertson Act, which in any way restricts the state in connection with nonresident, resident differentials and thus happily submit that the P&I Clause cannot be transformed to cover this activity simply because of the presence of federal land or because of the fact that Congress has provided for federal assistance.

Congress knows how to establish limitations, and it has done so in connection with military personnel on military reservation.

Those lands are generally planned over which the federal government has exclusive legislative jurisdiction, but even there, Congress has said, state fishing licenses shall be required, but that if personnel who are on duty for more 30 days, they need not to have a state license, if the state does not provide licenses on terms as favorable as those for residents.

So Congress knows how to establish conditions.

It simply has not done so.

Paul A. Lenzini:

The question here also involves nature of the state right of the wildlife.

In Toomer v. Witsell, the court stated that it was long ago decided that one of the privileges which the clause of Privileges and Immunities Clause guarantees is that of doing business in state B on terms of substantial equality with citizens of that state.

But plainly, Toomer dealt with commercial shrimping doing business and does not govern the institute case.

Both, the majority below and the dissenting judge found that the case involved recreational hunting and the majority state that elk is not now and never will hunted commercially.

Turning to the Equal Protection Clause, the court below found that the Montana scheme, there is a rational relationship to a legitimate state purpose.

It held that it was a finite local resource, not everybody could hunt it and therefore some restriction had to be made on hunter days.

The District Court did not choose between the ownership doctrine and the police power doctrine.

The nature of the state’s power to conserve wildlife has involved some semantic difficulties.

We have had the ownership doctrine versus the police power doctrine.

In a 1935 decision of this court Bayside Fish Flour Company v. Gentry 297 US, Mr. Justice Sutherland declared that over a while being generally the state has supreme control.

But in Toomer v. Witsell, the court said that well, that ownership was simply a legal fiction.

But it was a legal friction, which was expressed, even legal shorthand of the importance to its people, that a state had power to preserve and regulate the exploitation of an important resource.

Warren E. Burger:

How would you distinguish between a State’s interest in wild game as a resource to use that term and subsurface minerals and energy?

Paul A. Lenzini:

Owned by the state as opposed to prior that ownership, in the mineral situation, the state has technical ownership, as it would with the state capital I believe, the state capital building.

But in connection with fish and wildlife I think the state has a qualified ownership.

It does not have technical ownership as Mr. Justice —

Warren E. Burger:

These are different partly because the minerals can not migrate but the game again, would that be a factor?

Paul A. Lenzini:

I think it is simply a question of title Your Honor, I think that where the state owned minerals it has a patent, perhaps, from the federal government, first from someone else, it has all of the indicia of what consider to be necessary to clear title.

Warren E. Burger:

You are preceding on a premise that title much rest somewhere, are you?

Paul A. Lenzini:

No sir, I am not titled to things that are capable of ownership, ordinarily rest somewhere but title to wildlife is in no one, it was held that common law to be raised newly as, it was owned by no one.

But although it is owned by no one, there was a right, a beneficial right to utilize the wildlife and it was held to be in the state for the benefit of its people, that is the holding of Geer v. Connecticut.

But Mr. Justice Marshall earlier this year stated in Douglas v. Seacoast, said it is fantasy to talk about the state owning wildlife, because wildlife cannot be owned in the sense so they –private game preserve owner owns the animals that he has stocked there in.

Last year in Kleppe v. New Mexico, taking again about the nature of the State’s interest there Justice Marshall stated, that state has board, trustee and police power interest in wildlife.

So we had difficulty in semantics, and one is the state ownership.

In Toomer, Chief Justice Benson stated that there is considerable authority beginning with year to support the contention of the state, that a state can fine the consumption of fishing game wholly within its limits.

As a representative of its people, it can keep the fishing wildlife from moving in interstate commerce.

Warren E. Burger:

Are you suggesting that wildlife is not capable of ownership under any circumstances?

Paul A. Lenzini:

If it is reduced to possession lawfully, it is capable of ownership an it is owned by the —

Warren E. Burger:

That definition it is not wildlife any longer.

Paul A. Lenzini:

It is no longer wildlife but personal property but prior to it being lawfully reduced possession, it is considered not to be held on technical ownership.

Paul A. Lenzini:

So it is clear from the cases that this thing does not have a technical ownership in wildlife.

But because of the fact that ownership is no one one, but it is clear that the State’s authority of wildlife is that for the common good and conveys all the authority, the technical ownership ordinarily confers such as in Toomer where the court said, it is important that the state had the power to preserve and exploit the exploitation of an important resource.

If the authority of the state must be expressed in terms of police power however, Appellees then submit that the exercise of the police power in managing wildlife is not inconsistent with the recognition of beneficial user and by the people.

A use of (Inaudible) right perhaps.

We then turn to appellants’ Equal Protection Claim, it is alleged that residence is a suspect classification and thus requires a showing of a compelling state interest, to sustain its use.

Appellees submit that the classification of residents cannot be said to be a suspect, It is not aimed at any discrete minority such as classification by race, religion, sex or alienage, and involves no fundamental right.

A nonresident’s opportunity to hunt a priced trophy species, simply does not rise to the dignity of the fundamental right and the record discloses that the non-resident hunter is not a group, who was in need of special solicitude under the Constitution.

William H. Rehnquist:

If someone had come to Montana and declared his residence there, would he then say ten days later, I have been able to get a resident license?

Paul A. Lenzini:

Montana has a six month residency requirement and if he had resided for six months prior to the application for the license, he would have gotten a residence permit.

William H. Rehnquist:

So it does not make any difference how, once you have fulfilled the six months requirement, it does not make any difference, how much longer you have resided, you can get a residence license.

Paul A. Lenzini:

That is correct.

A trial below the appellants have tempted to show that the license fee differentials could not be cost justified by additional expenditures imposed on residence and appellant’s witness testify that at most and their calculations, the state can charge a nonresident fee of 2.5 to 1, this approach is comparable however to the approach taken in the commercial fishing cases, namely those fundamental rights cases where the requirement of substantial equality between residents and nonresidents was involved and it is seemed that recreational hunting is a fundamental right.

The District Court below determined that no records were kept, which precisely disclose the direct and indirect cost which properly maybe a portion and thus the court found that the ration 7.5-1 could not be justified on any basis of cost allocation.

However, the court did not specifically address the arguments that lay behind pros and cons of the arguments behind the Combination License issue in its view of the case.

The appellant below demonstrated, attempted to demonstrate that the direct costs were those costs of the Fishing Game department itself, and that indirect cost for all of the costs spent by the state in that year which amounted to about $211 million and when the appellant’s witness below calculated the number of person days in that Montanan spent in Montana versus the number of person days spent by nonresident hunters, the witness determined that one-tenth of 1% of all these indirect costs could be utilized by the state as a cost of the hunting license and the witness testified that no other cost, I mean, no other forbearance, no other state interest could properly be considered in establishing the price of the hunting service as it was stated.

Another appellant’s witnesses testified that the license fee should be determined on the basis of generally accepted accounting principles and that no one should become bogged down in any measurement of value.

Appellees submit that the foregoing analysis is of course unrealistic, because many elements are involved in producing big game populations that may be harvested in a state.

Private ranch lands are involved, because during the critical winter month of the year, elk and deer move down from a higher elevations which can be federally owned land and move down into the lower private lands where they spend the winter months, which are the critical months in survival and depend upon forage provided by those ranch lands.

Thurgood Marshall:

I think those ranchers can keep anybody off their land.

Paul A. Lenzini:

It is correct.

Thurgood Marshall:

Well, I do not understand what you are arguing?

Paul A. Lenzini:

I am saying that because of the fact that the deer and the elk service just to a large extent because of the presence of those ranch lands and the mere fact that they could keep hunters off the land does not mean that they keep the deer off the land or the elk off the land in fact, they had no recourse for the damage and depredations they may receive from the deer and elk.

Thurgood Marshall:

I do not understand why for that reason you have to charge somebody an extra amount?

Because the elk comes in my land and eats my forage, therefore I keep the out of a state manner.

Paul A. Lenzini:

Yes.

But the deer and elk are not taken on your land, they come on your land during the winter months and during the summer months, and in the fall months, they migrate off your land and they move on to adjoining federal land and that is where they are being taken off on land, not your land and there being —

Thurgood Marshall:

I guess my real question is that isn’t it true that Montana was survived with this law?

Paul A. Lenzini:

Are we talking about the Combination License?

Are we talking about the license fee differential?

Thurgood Marshall:

All the license with Montana.

Paul A. Lenzini:

I think, Montana as a state will survive within the question hours whether the wildlife management program was survived.

That is the question.

Thurgood Marshall:

This is the only state.

Paul A. Lenzini:

This is the only state that I am aware of that has a Combination License, it is one.

Well, there are two questions I think Justice Marshall, there is a Combination License and there is the question of the rest of the fee differentials and the fee differentials is an extremely important management tool used by the state wildlife agencies and if that were held unconstitutional there would be a very significant impact on Fish and wildlife management, particularly wildlife management.

Warren E. Burger:

Are you arguing that a rancher who is paying Montana state taxes on his land and whose land is then used by elks and others is entitled to sort of special protection and which can not be measured mathematically?

Paul A. Lenzini:

No, Your Honor, I am not.

In some states, in fact like Colorado there are provisions under state statute or claims by ranchers for depredations.

In the State of Montana, the legislature in its wisdom has decided not to provide a claims procedure for ranchers and therefore they are required simply to undergo this depredation and loss of forage.

Warren E. Burger:

But then they are contributing something to the well being of the elks which nonresidents do not contribute.

Paul A. Lenzini:

I certainly submit that they are, yes indeed.

It is an opportunity cost, because if they chose to keep those elk and deer off of their ranch lands they might do better in some other pursuit, they might be able to have more forage, more grazing, but the Montana Supreme Court has said that one who acquires property in Montana does so with notice and knowledge that we had some very substantial big game populations here and he does so with knowledge that wild game cannot distinguish between Fructis nature allies and fructis industry allies, and therefore cannot control animals.

They cannot be controlled through the owner and accordingly a property owner in the State of Montana must recognize the fact that there may be some injury to property, from wild game for which there is no recourse.

And in State versus Rathbone 100 pacific seconds State really —

Potter Stewart:

Your answer Mr. Lenzini to my borther Marshall’s question indicated your belief that this relatively high license fee actually operated as a real disincentive to nonresident hunting in Montana.

Do you think that is correct?

Paul A. Lenzini:

I believe that operates as a control.

I believe the record indicates that in years when legislature has raised that the there has been a drop off in a number of nonresidents.

Potter Stewart:

My observation as well as I may say personal experience has been in this sort of recreation is quite an extravagant pursuit monetarily and that the $200 fee is rather small fraction of the overall cost and would probably not in fact operate as much of a disincentive to the kind of person who comes from outside of Montana and comes in there and hires a guy, normally outfitting material necessary and indulges in big game hunting, is that correct, am I quite wrong about that?

Paul A. Lenzini:

I think you are correct, I think that the fee here is $225, I think that the record indicates that over a $1,000 is involved apart from that and spending seven days for hunting.

So it is a very expensive recreation and the $225 is not that much but the plaintiff’s —

Potter Stewart:

Well, that is not a disincentive and to the extent it is not a disincentive, your case is weakened is it not?

Paul A. Lenzini:

No, I think not because I think to some extent it is a disincentive, it is a control mechanism that is why the plaintiffs are here.

Their witnesses say that they can not come back next year because of this license fee increase.

So for their concern, it is a disincentive and that is why they are here.

William H. Rehnquist:

If it is not an injury in effect to them, I suppose they have no play?

Potter Stewart:

I do not see any threat, but on the other hand, if it does not discourage any non residents from coming in and hunting elk, then you have no case.

Paul A. Lenzini:

Well, I think that we can take notice of the fact that an increased license fee is going to have an effect on some people.

Now, it may not have an effect on a person who is (Inaudible) comes out.

But it is going to have an effect on some people, may be from South Dakota, may be neighbors from Colorado, but it is going to have an effect on some people.

Paul A. Lenzini:

This case is not in Toomer v. Witsell situation where in the year prior to the $2,500 license fee, there were 100 nonresident shrimp boats license and following enactment of that license fee there were no shrimp boats licensed by the state of North Carolina and South Carolina.

The effect to that case was to exclude nonresidents, we have here instead a situation where in the period of 1960 to 1970, the number of Montana residents hunting in the state had increased by about 67% and the number of nonresidents had increased over 530%.

We have a situation here where Montana in 1974 was the state most frequently visited by out-of-state hunters.

We have a siltation here where during 1974. there were 32,000 nonresident big game hunters and there were 20,500 nonresident Combination Licenses issued, not 14,000 as stated by appellant.

Potter Stewart:

I know there is a limit of 17,000.

Paul A. Lenzini:

Limit of 17,000 came into the law later, Your honor.

Based with this increase in the number of nonresidents, the legislature simply increased fee for the nonresident license.

The state shows an economic means to limit the number of hunter days and the method plainly is not arbitrary.

With respect to the combination license.

The record below indicates that nonresidents hunt in larger groups than the residents, they usually come in groups of four or more and that license swapping is a problem and it is likely to recur more among nonresidents whereas residents tend to hunt in smaller groups, one or two and in tempting to force its conservation laws, the State of Montana has adapted the equal responsibility law, they have a state of about 145,000 square miles and they have 70 game wardens at this time, which means that each game warden is supposed to cover an area of about 2,000 square miles, it is very difficult to do that.

But the state does have over 400 licensed out fitters and guide and so the legislature in its wisdom said that if a violation occurs in hunting party, which is guided by a lot of license outfitter and guide then unless that guide or outfitters reports a violation, he himself is equally responsible with the person committing the violation, because of the fact that there is license swapping, because of the practice, people going out and one buys a license for deer, one buys a license for elk and then if they come upon the one and he is not licensed for it, they still make feel that they can take the deer or the elk.

Because of that problem the legislature decided to establish the Combination License so that whatever you tended to come across, in so far as bear, deer and elk are concerned, you would be licensed for that and the record below indicates that nonresidents utilize outfitters more than residents, perhaps the size of 50% in some areas of Western Montana.

The dissenting opinion below said that the use of a political justification namely that without this discrimination, the program will not receive political support.

The dissent said that that was inherently inappropriate.

The appellee submit that such political considerations are part and parcel of numerous legislative choices, and cannot be set to vitiate the choice unless fundamental rights are involved or unless invidious classifications are made.

We submit that in San Antonio School District versus Rodriguez, decided by this Court in 1973, such considerations were taken into account to determine whether there was a rational basis for the Texas system, a financing public education in that case the financing method was the ad valorem tax on property within the state school district supplemented by funds from the state central system.

The attack on that, the Equal Protection in fact, they said, on the basis of wealth because some districts had less valuable properties than others that the school districts were being deprived of their Equal Protection Right, but the court referring to local control, the school districts which was fostered by the Texas plan concluded that the plan was not irrational because people of Texas maybe justified in believing that other systems are financing would lessen desired local autonomy and in Salyer Land Company v. Tulare Water District which involved boarding in water districts that was limited only to land owners.

The court said that that there was no violation of the Equal Protection Clause, because the state of California could conceivably take into account that land owners as opposed to residents would not be willing to join in.

Formation of the water storage district, if short term lassies for example whose fortunes were not in a long run, tied to the land, would have a major vote in the affairs of the district.

Some where a state possess a qualified ownership interest in a natural resource or at least a substantial regulatory interest which imports a right to the beneficial use there of, which may be exploited by citizens of other state.

A state may prefer its own, if the state regulatory program would be frustrated with outside discrimination.

To sum up, there is room in the Fourteenth Amendment for practical considerations where no invidious classification is involved, where no fundamental right is involved and whereas here, the state in regulating finite resource in which its people have a beneficial interest.

Appellees submit that the judgment below should be affirmed.

William H. Rehnquist:

Mr. Goetz, as I understand the record, none of your clients assert that they were actual residents of Montana who were denied the license simply because they had not fulfilled the six months requirement.

James H. Goetz:

That is correct, there is no issue as to durational residency requirement.

I might say in that connection that one of the nonresident plaintiffs, however is a property owner in Montana and I think one of the problems with Mr. Lenzini’s argument on depredation is that he is equating non-residency with property ownership.

There may be nonresidents who own property, who contribute likewise to the elk resource.

Obviously the incident to that is lower than resident property owners.

And there maybe a lot of residents, who do not know about it.

James H. Goetz:

That is correct also.

James H. Goetz:

In response to the Appellee’s position, first I would like to say with regard to the ownership question that I think that this court has settled that issue in the recent decision in Douglas v. Seacoast Products where the opinion indicated that rather than viewing wildlife and some kind of ownership context, the proper way to look at the wildlife resources to the traditional police power’s concept and that is the position that appellants have taken throughout this decision.

I believe the language in Douglas Seacoast is very strong in that regard.

Now, with respect to the Equal Protection issue, Mr. Lenzini has argued that the both the license fee differential and I understand also the Combination License requirement, both of those are very important management tools and the thrust of the District Court decision is that this is a valid conservation measure.

I think the record throws substantial doubt on that for a number of reasons.

First of all, the State of Montana did not attempt to justify this in the District Court as a conservation measure.

Secondly, Montana in 1975 charged residents only $4 to hunt an elk.

Warren E. Burger:

Must the legislature assert this conservation aspect in order to rely on it and the passage of the statute of this kind?

James H. Goetz:

No, I do not think it has to assert that, we have very little legislative history in Montana.

However, what I am saying is that the State Fishing Game Department in defending the case in the District Court did not assert that, that does not necessarily bar them from arguing it now, but I think it does show some doubt on whether they firmly believe that this can be justified as a reasonable management tool.

You see there is no limit on the number of nonresident licenses that can be issued for elk and they cost only $9 now.

Potter Stewart:

I think you said there was a limit of $17,000.

James H. Goetz:

No, I mean on residents —

Potter Stewart:

But there are not many residents in Montana.

James H. Goetz:

Pardon me.

Potter Stewart:

There are not many adult male residents in Montana, compared to the other, to the total of the other 49 states.

James H. Goetz:

Well, you do not have to be in an adult male to hunt.

Potter Stewart:

Well, generally that is there.

James H. Goetz:

In any event the District Court seemed to find that there are large numbers of hunters and a finite number of elk and I think there obviously is a finite dimension on that resource, but the legislature has not imposed any restrictions on residents as far as hunting them.

Potter Stewart:

What is the population in Montana?

James H. Goetz:

600,000 approximately.

Potter Stewart:

The whole state men, women and children?

James H. Goetz:

Yes, and approximately a 198,000 hunting licenses are issued in Montana.

However that relates to the whole spectrum of game birds etcetera.

There is a limitation on the number of elk that maybe taken.

James H. Goetz:

Yes.

One per license.

James H. Goetz:

Yes, they are one per license, but what I am saying is that if this is viewed as a conservation device and this economic discrimination designed to discourage nonresident hunters, we can see likewise that there is no equivalent in terms of the resident hunters and Douglas v. Seacoast Products said that this can not properly be viewed in the Virginia context as a legitimate conservation measure.

If you have no limits or no policies to discouraging the residents and simply discriminate against the nonresidents.

Thurgood Marshall:

But Seacoast was not only commercial, it was very high powered commercial.

James H. Goetz:

Well, that is true, but I think the proposition for which I cited that is the difference between the resident and the non-resident and the fact that Virginia did not take any measure to discourage residents.

James H. Goetz:

I think that is applicable to the present case.

In any event, if we look at the combination license requirement we have something that appears wholly arbitrary and capricious.

Now, for instance in 1975, Montana changed its Combination License from one elk two deer, to one elk, one deer and one black bear.

The record shows that with respect on the abridger to the later half of the hunting season, black bears were hibernated.

Now, what kind of conservation device or management tool is that, they are not huntable.

Potter Stewart:

As well as license to hunt tigers I suppose.

James H. Goetz:

Yeah, they are just not going to be around the shoe, and in line with that it is very difficult to mistake an elk for black bear, if the black bear is hibernated obviously and even if it is not hibernated, it is rather difficult to mistake those two.

William H. Rehnquist:

Is there a bear season in Montana?

James H. Goetz:

There is, there are two bear season, one in the spring and then there is a bear season that is pretty much the equivalent of the elk season and my understanding is that the spring bear season is different in the sense that it is the Combination License does not impact that one way another.

William H. Rehnquist:

Well is there any reason why possessor of the Combination License could not come back in the spring and shoot a bear if he found they were all hibernating in the fall.

James H. Goetz:

I am not sure whether he has to buy an additional license for to start with.

I just do not know that, but secondly there is an economic reason of course that cost money to come into the state, a second time and the record divulges that black bears are not in great demand in terms of hunting that is in 1975, the year before this went into effect 730 nonresident black bear license were issued as opposed to somewhere in the neighborhood Mr. Lenzini correct me about 20,000 elk deer Combination Licenses.

So obviously most nonresidents who want to hunt either elk or deer, do not desire to hunt black bear.

So what it appears as though the State of Montana is doing is gauzing the nonresident with higher fees to subsidise artificially the operation of a Fishing Game Department in Montana while charging probably the nonresidents an unreasonably low figure.

William H. Rehnquist:

But that argument does not militate against the combination of elk and deer does it, it just —

James H. Goetz:

No that goes to the license fee differential however the problem with the license, the economic problem as Justice White is compounded by loading on other licenses and then saying, well you have got to pay before because you have got to buy these other licenses.

Potter Stewart:

Well, isn’t as Mr. Justice White suggested in very early in your argument, is this not really one problem.

Let us say that Montana had said that in order to hunk elk, you also had to be licensed to tigers and elephants and zebras.

In other words, wholly unrealistic, but that is what you have to do to get an elk license, and you have to pay $225 for it.

Is this not realistically the same as though they set it to $225 fee?

James H. Goetz:

Well, in one sense it is and in the sense that if you look at the Combination License as simply a way to assess more fees to the nonresident.

However, in constitutional sense what that Combination License is, is excess baggage that is conceivably although I do not believe it should be the case, this court could hold up a reasonable or an unreasonable differentiation and still find the Combination License so arbitrary and capricious which it seems to me it is, of that it would strike that down, and that would be the argument I would be making here, if I thought this differential was reasonable under the Toomer standard, not withstanding the Combination License.

That is we would just attack the Combination License.

However, we think that the differentiation cannot make the Toomer and Mullaney standards in any event, so to that extent, I think they are two separate issues and as Mr. Lenzini pointed out, he tried to justify them of the Combination License on a separate basis.

John Paul Stevens:

Can you tell me if the record tells us how many elk are taken by residents as opposed to nonresident?

James H. Goetz:

Yes, the record does, I can not tell you off hand where it is, if I think for just a second.

Warren E. Burger:

I thought you said earlier that it was about to a little less than half of the 31,000.

James H. Goetz:

That is the number of hunters who hunt elk, but the question is what percentage of residents take elk as opposed to nonresidents is that your question?

John Paul Stevens:

Yes.

James H. Goetz:

Yes, the short answer is found in the footnote 17, on page 32 of Mr. Lenzini’s brief, the success ratio in 74 nonresidents succeeded on 15% of their elk licenses compared with 11% success ratio for residents.

John Paul Stevens:

Thank you.

Warren E. Burger:

Thank you gentleman.

The case is submitted.