Constitutionality of establishing a moose hunting season for residents only

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARD S. COHEN ATTORNEY GENERAL STEPHEN L. DIAMOND JOHNS. GLEASON JOHN M. R. PATERSON ROBERT J. STOLT STATE OF MAINE DEPARTMENT OF THE AT'TORNEY GENERAL AIJGUSTA, MAINE 04333 March 2, 1979 DEPUTY ATTORNEYS GENERAL Honorable David S~ Paul 9 Park Street Sanford, Maine 04073 Dear Representative Paul: You ha.ve asked whether the State of Maine may constitutionally establish a moose hunting season for residents of the State only~ Our answer is that. while the question is not free from doubt, we cannot say that such a proposal would be unconstitutionalc In general; the courts have reviewed the constitutionality of statutory provisions discriminating against non=resident$ under two clauses of the United States Constitution~ the first sentence11 of Article IV, Section 2 (the iePrivileges and I:mmunities'° Clause);~ and the third clause of the second sentence of Section l of the Fourteenth Amendment (the '°Equal Protection Clause") o This opinion will discuss in turn the applicability of each of these clauses to the proposed legislationc I. Pri v~_.1.eges= ~pd. Irnmuni ties The Privileges and Immunities Clause of Article IV states: "T~e Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several Statesn The United States Supreme Court has had recent occasion to interpret this clause in factual circumstances remarkably similar to the case 1/ Upon the effectiveness of the Fourteenth Am.endm.ent in 1868, a second· 1'Privileges and Immunitiesn clause was added to the Constitution. Howeverd since the courts appear to continue to analyze Privileges and Immunities questions employing · doctrines originally enunciated under Article IV, Section 2, Clause 1, this opinion will not address the question of whether the proposed legislation is independently threatened by the Fourteenth Amendment Privileges and Immunities Clause. See Baldwin Ve Montana Fish and Game Commission, 436 U.S. 3711'""385, Ile 21' (1978) -2- at hand. In Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371 (1978),- the Court found that the establishment of a nonresident license _fee to hunt elk and other big· game which was as much as twenty-five times that -of the fee for residents did not violate the clause because the plaintiffsv interest in hunting big game was not sufficiently nfundamentaln to warrant protection under the clause. Ido at 388. In reaching this conclusion, the Court distinguished other situations in which it had employed the clause to strike down state barriers to non-resident hunting and fishing, most notably Toomer Ve WitselJ,, 334 U.S. 385 (1948) Ton the ground that in Baldwin the plaintiffs were not pursuing a livelihood" but were merely engaging in sport. Thig the Court found to be an in- sufficiently serious interest to be worthy of Privileges and Im-· munities protectionQ Applying this principle to the case at hand,. it would appear very likely that the Court would reach the same result~ If hunting elk or moose for sport is an activity not entitled to protection under the Privileges and Immunitie5: Clause, then it would appear t.o make no difference under the Clause whether a state imposed a license fee on non-residents twenty-five times that imposed on residents_,, or simply excluded non~residents al together.. This was the result reached in the only case which has been found in which a flat exclusion of non-residents from hunting has been. reviewed under the Privileges and Immunities Clause. In State v. Kemp, 44 N.W. 2d 214 (S~DQ 1950), cited with approval in Baldwin, suora, at 386-87, the South Dakota Supreme Court upheld a ban on nonresident hunting of waterfowl. It should be noted tha.t the court's rationale hinged less on the nature of the nonresidents' interest than on the purpose of the statute: nonresidents had posed a special threat to the conservation of pheasants and ever1 if the hours of pheasant .hunting were restricted, the presence of nonresident hunters in substantial numbers would likewise endanger breeding grounds and nurser:ies for ducks and geese" Nonetheless, the Supreme Court's recent approval of this case gives greater reason to believe it 21 would sustain a prohibition of nonresident moose hunting in Maine.- 2/ The only hint in the Court 9 s discussion of the Privileges and Imm.unities Clause in Baldwin that it might view a flat prohibition differently is a single ·sentence which appears in the middle of the discussion of the plaintiffs' interest: "The mastery of the animal and the trophy are the ends that are sought; [plaintiffs] are not totally excluded from these." Baldwin, supra at 388." However, in view of the general theory which it adopts in the case, as well as its specific approval of State v. Kemp 0 the implication of this observation would appear to have little force. II. Equal J?rot.ec1:,ion The Equal Protection Clause of the Fourteenth Amendment states: '' •• ~ nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws., 11 In applying this clause to state statutes discriminating between classes of persons, the Court's procedure is first to determine whether some "fundamental" right is involved or whether an "in- vidious classification" is present, in which case the state must show a nsubstantial governmental interest" to sustain its actionr or, if not, whether there is simply a Hrational basis" for the dis- criminationo It is clear from the Court 5 s discussion of the interest. of sportsmen in Baldwin, described abovef that it does not regard persons in that category as meriting special constitution.al protec= tion. Thus, the Equal Protection question raised by the proposed legislation here is simply whether there is a rational basis for discriminating bertwaer:i resident and nonresident: moose huntiers. The Court's analysis of the Montana statute in Baldwin under the Equal Protection Clause is not. directly in point here-,, 4 Since Baldwin dealt with a license fee differential, rather than a pro~ hibition, the Court was able to sustain the statute on the ground that the higher nonresident fee was rationally justified as a mea.ns of making nonresidents bear their fair share of the cost of managing the resource, to which the residents of the state were contributing, in various ways, through their taxes .. ~~r supra at 388-90. But this justification is obviously unavailable for a prohibition~ An= other rational basis must be found to survive equal protection scrutinyG The only justification which would appear to have a chance of succeeding is that of conservation~ M:oosee like any other species of wildlife r1 is a "finite resource, 11 and access to it must therefore be limited.. If the Legislature determines tha,t such limitation must be accomplished not only by fixing a li:mited season but also by restricting.the number of huntersu it must find some way of achiev- ing the latter. Prohibition of nonresidents is one such method~ fJ."he United· States Supreme Court ·has: never squarely determined whether a prohibition of nonresidents for conservation PU:t"POSes violates the Equal Protection Clause .. It may be ... however, that the Maine Supre:me Judicial Court hase In State v~ Norton, 335 A.2d 607, 614'""'.615 (Me. 1975), the Court sustained a statute which made it pos- sible for municipalities to exclude nonresidents from digging clams within their borders. Moreover, although the Court's opinion did not make it clear which clause of the constitution it was applying, it did appear to be employing an Equal Protection, rather than Privileges Immunities, analysis. On the other hand, the only case which can be found which deals squarely with the use of the con- servation justification to restrict non..,,resident hunting did not find such an argument persuasive. In Schakel v. State, 513 P~ 2d 412 (Wyoe 1973), the Supreme Court of Wyomi'ng invalidated a state statute requiring nonresident hunters to have guides as violative of the Equal Protection Clause, expressly finding that the record before it was insufficient to establish any connect.ion between the requirement and the conservation of deer .. Id. at 415. In this con- nection, it is also worth noting that the- lower court holding in Baldwin treated the case as an Equal Protection problem and sustained the license scheme on the br~7d ground that it was a rat:tonally con= ceived conservation measure~- Mental'.!?- Outfi t.t~..ES A~tior1 ___ Grou12 v_. Fish and Game Comm'n, 417 Fo Supp. 1005, 1009~10 (D. Mont~ 197~ The Supreme Court, however, saw fit to shift the focus of its analysis to the Privileges and Immunities Clause, and to restrict its Equal Pro- tection discussion, as we have seen, to the fee differential questiono Baldwin, sup__ra .. Whether this means the Court did not find. the lower court's broader equal protection analysis persuasive is, of coursH~, impossible to tellc In short, it is difficult to assess how the United States Supreme Court would now react to a restriction of nonresident hunters for conservation purposes~ In view of this uncertainty, therefore, w~ cannot say that the Legislature is clearly foreclosed from adopting this course. I hope this answers your questio9~ . ( s L • OHEN Attorney General RSC:CH: jg c.c: Sena.tor Andrew Redmond Representative Charles Dow Senator Ronald E~ Usher Senator Roland Martin Senator Harold Silverman Representative Richard E. McKean Representative•Edward Le Dexter· Representative Paul F. Jacques . Representative Robert A. MacEachern Commissioner Maynard Marsh One of the grounds of rationality asserted by the lower court was that the Legislature might have concluded that to use a lottery system "might destroy the political motivation to Montana ci t_izens to underwrite the elk management program." .. Montana Outfitters, supra at 1010. This particular justifi= aation was exP,ressly disapproved by the Supreme Court. Baldwin, fUPr~ at 391, n. 24.