http://www.krqe.com/dpp/news/c...ng-outfitters-sue-NM


Out-of-state hunting outfitters sue NM

Updated: Tuesday, 06 Mar 2012, 5:18 PM MST
Published : Tuesday, 06 Mar 2012, 5:18 PM MST
Alex Goldsmith



ALBUQUERQUE (KRQE) - Every year, thousands of hunters, both in and out of New Mexico, fight for the chance to hunt the state's big game.

Under state law, at least 84 percent of licenses given out in New Mexico's hunting lottery have to go to state residents.

Another 10 percent of licenses are given to out-of-state hunters who are contracted with an outfitter ahead of time.

But under a new law passed last year, outfitters eligible for that 10 percent pool have to be New Mexico outfitters, meaning they need to be companies owned by New Mexico residents and companies that own land in the state.

"It's forcing them out of business in New Mexico," said B.J. Crow, an attorney representing a group of out-of-state outfitters suing the NM Department of Game and Fish in federal court. " In effect and the way it's being applied is it excludes them totally from being an outfitter in New Mexico because the ten percent subset is the only business they get."

Crow says the US Constitution protects interstate commerce and the state law is simply unconstitutional.

But Albuquerque-based outfitter Vincent Vigil, who owns New Mexico Hunting Adventures, defended the change, saying it benefits the state economy.

Vigil also points out that the new law hurts New Mexico outfitters too, because it shrinks the total number of out-of-state hunters who get licenses in the first place.

"Now it's something we have to adapt to," said Vigil. "As all outfitters in the industry we [have to] adapt to it and overcome it and try to succeed the best we can."

Crow says his clients aren't looking for damages, just for the law to get tossed out.

The state has moved to dismiss the lawsuit. A spokesman for the NM Department of Game and Fish told News 13 he could not comment on pending litigation.

A court hearing in the case is set for March 21, the law goes into effect April 1.

quote:

Crow says the US Constitution protects interstate commerce and the state law is simply unconstitutional.

Hmmm, someone is behind the times. This is the same argument USO attempted in his suit against AZ. Although it held up thru the 9th Federal Appeals court, Congress than passed legislation (co-sponsored by Harry Reid-NV) that removed any consideration of the commerce clause in the limiting of NR licenses by any state. That law still stands today and will probably lead to a dismissal of the lawsuit.

Tony - Their lawsuit is NOT about the Non-Res licenses at all! Its about the use/application of a NM - Non resident outfitters license, and the change that has been made.

The new law says, that a NM outfitter (like me - been licensed there for 10 yrs) can no longer use my NM outfitter license# to apply my clients in the 10% outfitter/client pool, for the public tags, simply because I am NOT a resident of NM.

Matt Seidel - NM Game & Fish, runs the outfitter/guide license program. We talked last week, he too thinks the new law is unfortuante. Not only effecting the above, but more so - young/new guys who are NM residents, wishing to become a NM outfitter, use the 10% pool, etc.

Frankly, opinions are what they are. To me, the bigger issue is the continued effort on behalf of the local/state/federal agencies across this country - who continue to pass new laws/regulations and stipulations making it harder and harder for private enterprise to begin/thrive. If one wants govt control, simply continue to take away free market opportunity.

I'm with Mr. Neilson, this is not about non-resident quotas. This amounts to a ban on interstate commerce into new mexico of outfitting services.

quote:

Originally posted by Futrdoc:
This amounts to a ban on interstate commerce into new mexico of outfitting services.

I'm no attorney, but I gotta think you're right! This is a totally different ball of wax, than the former AZ - USO issue.

Comparing this lawsuit to USO's lawsuit is like comparing apples to oranges IMO

Okay, guys, as you were. I did interpret it a bit wrongly.

That said, the way the federal legislation is written, I would venture a guess that it MIGHT be applied just as it was related to the USO deal -- the STATE has the right to regulate how it manages its wildlife and permit system, whether that is in regards to the actual hunters or outfitters.

Why? Because USO was claiming the same thing -- the AZ 10% cap was preventing it from making MORE money in AZ through the sale of meat, hides and antlers. The only difference is the scale. With the NM law, the limiting factor is only in regards to the 10% set aside for outfitters. That doesn't preclude out of state outfitters from actually booking clients to hunt in NM; they just can't get them permits from the pool.

I think Tony is right on the button with his last post. It's the same basic thing as Wyoming not allowing a NR to hunt wilderness areas without a licensed outfitter or resident who obtains a guide license for no more than two people and they cannot receive any remuneration whatsover for doing it. It's mainly to help outfitters get business and that's exactly what the NM change is doing. The NR outfitters will lose this one because they can still outfit in the state. If NM kept them out completely, then the chit would hit the fan and they would be able to go with the interstate commerce angle.

This is the final wording passed by both houses of Congress and signed by Bush:

RESIDENT AND NONRESIDENT HUNTING AND FISHING REGULATIONS

SEC. 6036. STATE REGULATION OF RESIDENT AND NONRESIDENT HUNTING AND FISHING. (a) Short Title- This section may be cited as the `Reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act of 2005'.

(b) Declaration of Policy and Construction of Congressional Silence-

(1) IN GENERAL- It is the policy of Congress that it is in the public interest for each State to continue to regulate the taking for any purpose of fish and wildlife within its boundaries, including by means of laws or regulations that differentiate between residents and nonresidents of such State with respect to the availability of licenses or permits for taking of particular species of fish or wildlife, the kind and numbers of fish and wildlife that may be taken, or the fees charged in connection with issuance of licenses or permits for hunting or fishing.

(2) CONSTRUCTION OF CONGRESSIONAL SILENCE- Silence on the part of Congress shall not be construed to impose any barrier under clause 3 of Section 8 of Article I of the Constitution (commonly referred to as the `commerce clause') to the regulation of hunting or fishing by a State or Indian tribe.

(c) Limitations- Nothing in this section shall be construed--

(1) to limit the applicability or effect of any Federal law related to the protection or management of fish or wildlife or to the regulation of commerce;

(2) to limit the authority of the United States to prohibit hunting or fishing on any portion of the lands owned by the United States; or

(3) to abrogate, abridge, affect, modify, supersede or alter any treaty-reserved right or other right of any Indian tribe as recognized by any other means, including, but not limited to, agreements with the United States, Executive Orders, statutes, and judicial decrees, and by Federal law.

(d) State Defined- For purposes of this section, the term `State' includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands

Tony - You guys could be right, I'm just not sure how it will be interpreted?

In 2011 I think I had 6 hunters draw in the outfitter/client pool, so at most I am losing 1% of my annual business. That's not my concern at all - my concern is MORE govt control that is interfering/eliminating free-market capitalism. We are simply being regulated/ruled and lawed to death!!! Where does it stop, when does one stand up to it - only when it effects them? By then, it may be too late!

I think the bigger travesty is giving guided hunters a preference in drawing the permits.

Guys like Aarron make me shake my head when they play the "Gov't" regulation card. The Gov't regulation of allowing 10% of the permits to be obtained by private outfitter clients is, in a way, the same Gov't regulation he dislikes on saying who can be the Outfitter. Which came first the cart or the horse?

This is just another example of the fragmentation of hunters.

MC - Guys like you make me shake my head here on AR all of the time!! I never said "outfitters" should be guaranteed any percentage of tags, for any of their clients, now did I??? Please feel free to re-read my above posts! I would be fine with all 16% (NEW percentage) of the total/potential non-res permits going to any non-res who draws them, be they guided or not, I couldn't care less.

Not only are NON-RES outfitters now banned from the use of the "outfitter license pool", but that pool was reduced from 12% to 10%, and the regular non-res permits were reduced from 10% to 6%. Along with some other stipulations that can/will effect young/new NM residents who want to be an outfitter, etc.

Which came first, your insinuation - falsely based, or your failure to read my posts accurately?

quote:

Originally posted by Aaron Neilson:
Which came first, your insinuation - falsely based, or your failure to read my posts accurately?

Give him a break, he's from Utah

Well, I'll add another post from Utah....

MC is simply commenting that Aaron and other outfitters weren't raising a fuss about "government regulations" when they were gauranteed 10% of the tags. For all I know Aaron and others were trying to overturn that 10% allocation for years, and wanted all tags allocated without respect to guide status, but I kind of doubt it. Could be, but I don't know a single NM outfitter that was lobbying to reduce the outfitter allocation. And yes, this was a form of "government regulation" that was benefitting the outfitters.

I even agree with Aaron that the current NM rule should be overturned, but waving the banner of too much government regulation seems a bit hypocritical in this situation.

Bill

Had my local chapter SCI banquet this past weekend and there was an outfitter there that had hunts in Canada, Montana and New Mexico. We started talking and I was asking him about all of this since he is not a NM resident but outfits hunts there. He is not concerned with this as say he has a group of nonresident hunters, the odds of them all drawing tags is impossible, he says that from what he has seen only about 6% of the tags go to nonresidents. He purchases and only uses land owner tags so he can be sure his clients have tags. Maybe a bit more expensive but he needs to know that the hunters he books get tags.

quote:

Originally posted by llamapacker:
Well, I'll add another post from Utah....

MC is simply commenting that Aaron and other outfitters weren't raising a fuss about "government regulations" when they were gauranteed 10% of the tags. For all I know Aaron and others were trying to overturn that 10% allocation for years, and wanted all tags allocated without respect to guide status, but I kind of doubt it. Could be, but I don't know a single NM outfitter that was lobbying to reduce the outfitter allocation. And yes, this was a form of "government regulation" that was benefitting the outfitters.

I even agree with Aaron that the current NM rule should be overturned, but waving the banner of too much government regulation seems a bit hypocritical in this situation.

Bill

The reason I bring Utah into this is because of the tags that are taken from the non resident pool and given to SFW to either auction off to the highest bidder or raffle off in a banquet.

Four of us from out of state had a terrible Antelope hunt with a RESIDENT outfitter. We think NM should have MORE out of state outfitters,they work harder and from what I see and read they seem to have a higher IQ than the one we had. A Chimpanese could be trained to guide/outfit a Antelope hunt.

quote:

Originally posted by Ricardo C:
A Chimpanese could be trained to guide/outfit a Antelope hunt.

That is true!!!

Are most of the guys in New Mexico guiding public land or private?

I wish all of you the best of luck.

MOA - Its a whole lot of both.

I can outfit an antelope hunt, for free, for 3 buddies and myself, without having stepped foot on the ground to be hunted more than 24 hours prior, and go 8/8 on lopes. Can your Chimp do THAT??? Really?? Wow, okay. I stand corrected. He's good.

http://www.therepublic.com/vie...ng-Licenses-Lawsuit/


Federal judge sides partly with Western outfitters, fight over NM hunting law still unsettled



SUSAN MONTOYA BRYAN Associated Press
First Posted: March 22, 2012 - 7:29 pm
Last Updated: March 22, 2012 - 7:31 pm




ALBUQUERQUE, N.M. — A federal judge on Thursday sided partly with a group of outfitters from four Western states who complained their constitutional rights to conduct business in New Mexico were being upended by changes to the state's hunting draw.

The outfitters had asked U.S. District Judge Christina Armijo to issue an injunction and temporary restraining order to keep New Mexico's law from taking effect.

The outfitters are challenging language that specifies 10 percent of hunting tags awarded through New Mexico's annual big game draw would go to those hunters who hired New Mexico-based outfitters.

Before the law was changed last year, an outfitter's location didn't matter.

"This is brand new and that's why we challenged it," said Albuquerque attorney B.J. Crow, who is representing the plaintiffs. "Basically, it was excluding any out-of-state outfitter from doing business in New Mexico, which is unconstitutional."

Armijo ruled that the plaintiffs who operate as individual outfitters or sole proprietors would be eligible for the 10 percent pool for this year's draw. The plaintiffs include outfitters from Arizona, Colorado, Wyoming and Washington.

Armijo has yet to make a final determination on whether New Mexico's statute is constitutional. Crow said the case could take up to five months, and the outcome could affect countless out-of-state outfitters as well as hunters.

Jeremy Vesbach, director of the New Mexico Wildlife Federation, said he was relieved the judge's order keeps intact for the next draw new quotas established by the statute.

The law spells out how many New Mexico residents, non-residents and outfitters can be awarded hunting tags through the draw system. Tens of thousands of hunting licenses are sold in the state every year, and a portion of those are doled out through the draw by the state Game and Fish Department.

The quota system was changed last year after some sportsmen fought to ensure in-state hunters received a larger portion of the hunting tags. On average, New Mexico had the lowest preference for resident hunters — less than 80 percent — of any state in the Rocky Mountain region.

"We essentially are caught in the crossfire here and the question was do we dodge a bullet or not," Vesbach said. "I'm just relieved. The judge spent a lot of time on this and I think she came up with something that really minimized the overall disruption and kept folks like us from getting harmed."

Hunting, guiding and outfitting are part of a big business in New Mexico, where rural communities depend on money spent by outdoor enthusiasts. Studies have shown hunting, fishing, and outdoor recreation annually contribute billions of dollars to the state's economy.

Crow said if his clients weren't allowed to do business in New Mexico this year, it would have meant thousands of dollars of lost revenue for each one.

The deadline to apply for this year's draw is March 28. So far, some 70,000 hunters have applied.

"It's our lifeblood. For those of us who hunt, if we get a tag or not, it's a huge deal," Vesbach said.

Game Department officials said they still intend on having the draw in early May.

I have a feeling this arrangement will stick.

Under the new law, it does not appear to allow interstate commerce. As long as the hunts do not cross state lines, there is not much merit to the lawsuit as filed.

They'll dick around and NM will just raise the non-resident fees by a couple thousand dollars.

quote:

A Chimpanese could be trained to guide/outfit a Antelope hunt.

To just shoot any pronghorn, maybe, but to know the differrence between a B&C and a nice antelope, takes some skill.

On a private ranch elk hunt, a blind paraplegic could guide anyone to an elk, or muley!

quote:

Originally posted by Idaho Sharpshooter:
Under the new law, it does not appear to allow interstate commerce. As long as the hunts do not cross state lines, there is not much merit to the lawsuit as filed.

They'll dick around and NM will just raise the non-resident fees by a couple thousand dollars.

Or they will simply check and see if those out of state outfitters filed state taxes in New Mexico. My guess is that most do not.