From the AZ G&F Department, dated July 29,2004. -TONY

The Montoya case

What happens next?

Many hunters have asked for more information on the Montoya vs. Shroufe decision, and are wondering what happens next.
First, here�s a brief recap of the events and decisions in the case.

An overview of the Montoya case:

A challenge based on the Commerce Clause, Montoya vs. Shroufe, began in 2000, when Lawrence Montoya, a self-described professional hunter from New Mexico, sued the Game and Fish Department claiming that Commission Rule 12-4-114E, which established the 10 percent cap on nonresident hunt permits for bulk elk and for antlered deer in certain hunt units, violated the Commerce Clause of the U.S. Constitution.

The Commerce Clause gives Congress the power to regulate commerce between the states. The Supreme Court has interpreted the Commerce Clause to prohibit states from discriminating against or impeding interstate commerce. The Supreme Court has also held that when a wild animal becomes an article of commerce its use cannot be limited to the citizens of one state, to the exclusion of citizens of another state.

The case goes to court:

The Montoya case first went to U.S. District Court in Phoenix, where the court ruled that the Commerce Clause didn�t apply.
Montoya then appealed to the Ninth Circuit Court in San Francisco, which ruled that the Commerce Clause did apply because (1) people travel across state lines to hunt and (2) Arizona allows the sale of non-edible portions of bull elk and antlered deer in interstate and international markets. Because the cap treated hunters from outside Arizona differently than residents, the court said the rule was discriminatory.

However, the Ninth Circuit also said that Arizona has a legitimate interest in preserving its game and in maintaining recreational hunting opportunities for its citizens, which could �justify limited consideration of residency in the allocation of hunting tags in some circumstances.�

After issuing that decision, the Ninth Circuit then sent the Montoya case back down to the U.S. District Court decide whether Arizona has met its burden of showing that the cap was the least restrictive means to protect its interests.
So the case was back in the hands of the U.S. District Court, where, on July 13, Judge Robert Broomfield announced his decision. Broomfield ruled that Arizona did not meet its burden to show that there was no other means to protect its interests. He said the rule violated the Commerce Clause and he ordered the state to immediately stop using it.

The Supreme Court declines to get involved:

While the Montoya case was in U.S. District Court for a second time, the Arizona Game and Fish Department asked the U.S. Supreme Court to get involved. The department was joined in this request by more than 20 other wildlife management organizations that are members of the International Association of Fish and Wildlife Agencies, and was represented by an attorney who works for the association. The U.S. Supreme Court declined to hear the case.

What happens next:

The challenge for Arizona now is to develop a new rule that protects its interests without discriminating against nonresident hunters. The Arizona Game and Fish Commission, the department and its stakeholders are exploring options for creating and implementing a new rule. Your ideas are important and welcome.

You can provide those ideas and comments in one of three ways:
1. On our AZ G&F Department Web site
2. Attend the Game and Fish Commission meeting in Flagstaff on Saturday, Aug. 14. The meeting will be held at the DuBois Center on the campus of Northern Arizona University, Building 64, 2nd floor ballroom, 306 E. Pine Knoll Dr., Flagstaff, Ariz., 86011.
3. Attend an upcoming customer meeting at one of our regional offices. Here are the meeting dates and times:

8/3/04 6 pm � 8 pm Region I Office � 2878 E. White Mountain Blvd., Pinetop
8/5/04 6 pm � 8 pm Region II Office � 3500 S. Lake Mary Road, Flagstaff
8/3/04 6 pm � 8 pm Region III Office � 5325 N. Stockton Hill Rd., Kingman
8/6/04 6 pm � 8 pm Region IV Office � 9140 E. 28th St., Yuma
8/3/04 6 pm � 8 pm Region V Office � 555 N. Greasewood, Tucson
8/3/04 6 pm � 8 pm Region VI Office � 7200 E. University, Mesa

Agenda for the regional meetings:

I. Introductions and meeting process � Game and Fish facilitators
II. Meeting overview and purpose� Regional Supervisor
III. Overview of options under consideration by the department
IV. Group brainstorming activity to solicit suggestions for additional options< !--color-->

OK, so why doesnt Az just discontinue this practice;

Quote:

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(2) Arizona allows the sale of non-edible portions of bull elk and antlered deer in interstate and international markets.

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Then the case would no longer be one of a commerce issue.. ??

As I had posted in the other threads here, that is certainly one of the options being considered. BUT...there are downsides to this. For example, a taxidermist or individual couldn't sell a mount to someone that lives in another state, and I'm not too sure they would be even able to sell it within the state. Likewise for antler collectors, etc. Also, perhaps the wording would have to exclude certain non-game so trappers would still be able to sell hides.



Then once the rule is written it would obviously have to pass muster in regards to any discrimination under the Commerce clause. So lots of lawyers will be involved. -TONY

I say write the law and then do not enforce it. Or Enforce it with a small fine, but make it illegal to sell the parts of elk, deer, Bighorns, antelope, etc. Naturally shed antlers and horns would not be included, things which a guy from Texas can come pick-up on Fedral lands.

I am in Utah where we have a rule which states it is illegal to sell or barter antlers, horns, and untanned capes between Aug 15 and Feb 15. I say extend it year round if it keeps USO out of our backyard.

MGC,

Some good ideas. Heck, the UT law would cover all our deer and elk seasons anyway. No doubt someoine will be pointing that out to our game commission, too. -TONY