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BALDWIN ET AL. v. FISH AND GAME COMMISSION MONTANA ET AL.

decided: May 23, 1978.

BALDWIN ET AL
v.
FISH AND GAME COMMISSION OF MONTANA ET AL.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA.

Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, Rehnquist, and Stevens, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 392. Brennan, J., filed a dissenting opinion, in which White and Marshall, JJ., joined, post, p. 394.

Author: Blackmun

[ 436 U.S. Page 372]

 MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This case presents issues, under the Privileges and Immunities Clause of the Constitution's Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment, as to the constitutional validity of disparities, as between residents and nonresidents, in a State's hunting license system.

I

Appellant Lester Baldwin is a Montana resident. He also is an outfitter holding a state license as a hunting guide. The majority of his customers are nonresidents who come to Montana to hunt elk and other big game. Appellants Carlson, Huseby, Lee, and Moris are residents of Minnesota.*fn1 They have hunted big game, particularly elk, in Montana in past years and wish to continue to do so.

In 1975, the five appellants, disturbed by the difference in the kinds of Montana elk-hunting licenses available to nonresidents, as contrasted with those available to residents of the State, and by the difference in the fees the nonresident and the resident must pay for their respective licenses, instituted the present federal suit for declaratory and injunctive relief and for reimbursement, in part, of fees already paid. App. 18-29. The defendants were the Fish and Game Commission of the State of Montana, the Commission's director, and its five commissioners.

[ 436 U.S. Page 373]

     The complaint challenged the Montana elk-hunting licensing scheme specifically, and asserted that, as applied to nonresidents, it violated the Constitution's Privileges and Immunities Clause, Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court was convened and, by a divided vote, entered judgment denying all relief to the plaintiff-appellants. Montana Outfitters Action Group v. Fish & Game Comm'n, 417 F.Supp. 1005 (Mont. 1976). We noted probable jurisdiction. 429 U.S. 1089 (1977).*fn2

II

The relevant facts are not in any real controversy and many of them are agreed:

A. For the 1975 hunting season, a Montana resident could purchase a license solely for elk for $4. The nonresident, however, in order to hunt elk, was required to purchase a combination license at a cost of $151; this entitled him to take one elk and two deer.*fn3

For the 1976 season, the Montana resident could purchase a license solely for elk for $9. The nonresident, in order to hunt elk, was required to purchase a combination license at a cost of $225;*fn4 this entitled him to take one elk, one deer, one black bear, and game birds, and to fish with hook and line.*fn5 A

[ 436 U.S. Page 374]

     resident was not required to buy any combination of licenses, but if he did, the cost to him of all the privileges granted by the nonresident combination license was $30.*fn6 The nonresident thus paid 7 1/2 times as much as the resident, and if the nonresident wished to hunt only elk, he paid 25 times as much as the resident.*fn7

B. Montana, with an area of more than 147,000 square miles, is our fourth largest State. Only Alaska, Texas, and California, in that order, are larger. But its population is relatively small; in 1972 it was approximately 716,000.*fn8 Its 1974 per capita income was 34th among the 50 States. App. 56-57.

Montana maintains significant populations of big game, including elk, deer, and antelope. Tr. 191. Its elk population is one of the largest in the United States. Elk are prized by big-game hunters who come from near and far to pursue the animals for sport.*fn9 The quest for big game has grown in

[ 436 U.S. Page 375]

     popularity. During the 10-year period from 1960 to 1970 licenses issued by Montana increased by approximately 67% for residents and by approximately 530% for nonresidents.*fn10 App. 56-57.

Owing to its successful management programs for elk, the State has not been compelled to limit the overall number of hunters by means of drawings or lotteries as have other States with harvestable elk populations. Tr. 243. Elk are not hunted commercially in Montana.*fn11 Nonresident hunters seek the animal for its trophy value; the trophy is the distinctive set of antlers. The interest of resident hunters more often may be in the meat. Id., at 245. Elk are now found in the mountainous regions of western Montana and are generally

[ 436 U.S. Page 376]

     not encountered in the eastern two-thirds of the State where the plains prevail. Id., at 9-10, 249. During the summer the animals move to higher elevations and lands that are largely federally owned. In the late fall they move down to lower privately owned lands that provide the winter habitat necessary to their survival. During the critical midwinter period elk are often supported by ranchers. Id., at 46-47, 191, 285-286.*fn12

Elk management is expensive. In regions of the State with significant elk population, more personnel time of the Fish and Game Commission is spent on elk than on any other species of big game. Defendant's Exhibit A, p. 9.

Montana has more than 400 outfitters who equip and guide hunting parties. Tr. 295. These outfitters are regulated and licensed by the State and provide services to hunters and fishermen. It is estimated that as many as half the nonresidents who hunt elk in western Montana utilize outfitters. Id., at 248. Three outfitter-witnesses testified that virtually all their clients were nonresidents. Id., at 141, 281, 307.

The State has a force of 70 game wardens. Each warden district covers approximately 2,100 square miles. Id., at 234. To assist wardens in law enforcement, Montana has an "equal responsibility" statute. Mont. Rev. Codes Ann. § 26-906 (Supp. 1977). This law makes outfitters and guides equally responsible for unreported game-law violations committed by persons in their hunting parties. The outfitter thus, in a sense, is a surrogate warden and serves to bolster the State's warden force.

III

In the District Court the majority observed that the elk once was a plains animal but now roams the mountains of

[ 436 U.S. Page 377]

     central and western Montana. About 75% of the elk taken are killed on federal land. The animal's preservation depends upon conservation. 417 F.Supp., at 1007. The majority noted that the appellants conceded that Montana constitutionally may charge nonresidents more for hunting privileges than residents. Id., at 1007-1008.*fn13 It concluded, however, that on the evidence presented the 7 1/2-to-1 ratio in favor of the resident cannot be justified on any basis of cost allocation. Id., at 1008.

After satisfying itself as to standing*fn14 and as to the existence of a justiciable controversy, and after passing comment upon the somewhat controversial subject of wild animal legal ownership, the court concluded that the State "has the power to manage and conserve the elk, and to that end to make such laws and regulations as are necessary to protect and preserve it." Id., at 1009. In reaching this result, the majority examined the nature of the rights asserted by the plaintiffs. It observed that there were just too many people and too few elk to enable everyone to hunt the animals. "If the elk is to survive as a species, the game herds must be managed, and a vital part of the management is the limitation of the annual kill." Ibid. Various means of limitation were mentioned, as was the fact that any one control device might deprive a particular hunter of any possibility of hunting elk. The right asserted by the appellants was "no more than a chance to engage temporarily in a recreational activity in a sister state" and was "not fundamental." Ibid. Thus, it was not protected as a privilege and an immunity under the Constitution's Art. IV, § 2. The majority contrasted the nature

[ 436 U.S. Page 378]

     of the asserted right with educational needs at the primary and college levels, citing San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973), and Sturgis v. Washington, 368 F.Supp. 38 (WD Wash.), summarily aff'd, 414 U.S. 1057 (1973), and said: "There is simply no nexus between the right to hunt for sport and the right to speak, the right to vote, the right to travel, the right to pursue a calling." 417 F.Supp., at 1009. It followed that it was necessary only to determine whether the system bears some rational relationship to legitimate state purposes. Then:

"We conclude that where the opportunity to enjoy a recreational activity is created or supported by a state, where there is no nexus between the activity and any fundamental right, and where by its very nature the activity can be enjoyed by only a portion of those who would enjoy it, a state may prefer its residents over the residents of other states, or condition the enjoyment of the nonresident upon such terms as it sees fit." Id., at 1010.

The dissenting judge took issue with the "ownership theory," and with any "special public interest" theory, and emphasized the absence of any cost-allocation basis for the license fee differential. He described the majority's posture as one upholding discrimination because political support was thereby generated, and took the position that invidious discrimination was not to be justified by popular disapproval of equal treatment. Id., at 1012.

IV

Privileges and immunities. Appellants strongly urge here that the Montana licensing scheme for the hunting of elk violates the Privileges and Immunities Clause*fn15 of Art. IV, § 2,

[ 436 U.S. Page 379]

     of our Constitution. That Clause is not one the contours of which have been precisely shaped by the process and wear of constant litigation and judicial interpretation over the years since 1789. If there is any significance in the fact, the Clause appears in the so-called States' Relations Article, the same Article that embraces the Full Faith and Credit Clause, the Extradition Clause (also in § 2), the provisions for the admission of new States, the Territory and Property Clause, and the Guarantee Clause. Historically, it has been overshadowed by the appearance in 1868 of similar language in § 1 of the Fourteenth Amendment,*fn16 and by the continuing controversy and consequent litigation that attended that Amendment's enactment and its meaning and application.

The Privileges and Immunities Clause originally was not isolated from the Commerce Clause, now in the Constitution's Art. I, § 8. In the Articles of Confederation, where both Clauses have their source, the two concepts were together in the fourth Article.*fn17 See Austin v. New Hampshire, 420 U.S. 656, 660-661 (1975); Lemmon v. People, 20 N. Y. 562, 627 (1860) (opinion of Wright, J.). Their separation may have been an assurance against an anticipated narrow reading of

[ 436 U.S. Page 380]

     the Commerce Clause. See Ward v. Maryland, 12 Wall. 418, 430-432 (1871).

Perhaps because of the imposition of the Fourteenth Amendment upon our constitutional consciousness and the extraordinary emphasis that the Amendment received, it is not surprising that the contours of Art. IV, § 2, cl. 1, are not well developed,*fn18 and that the relationship, if any, between the Privileges and Immunities Clause and the "privileges or immunities" language of the Fourteenth Amendment is less than clear. We are, nevertheless, not without some pronouncements ...


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