# 9th Courts Decision



## David S Proffitt (Sep 13, 2002)

What are the effects of this decision on current bills?

Should the Sportsman's groups re-evaluate legal strategy in relation to this decision and the Sup Courts decision not to review?

I will first apologize and admit that I may be an idiot, and that I don't know much about anything, ... but shouldn't the focus now be on increasing access and habitat through increasing revenues, spreading out pressure and limiting the effects of guiding?

Maybe a guiding tax on each acre leased to both reduce the amount of land leased and increase monies available to secure public access?

Maybe increasing the number of zones?

I am interested in learning what others think of the effect of this decision.


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## Matt Jones (Mar 6, 2002)

I honestly don't think that the ruling is going to be upheld by the supreme court.

There are currently 21 states that are so concerned with how this ruling will affect how they manage their wildlife resources they've asked the supreme court to see this case and overturn it. ND is one of those states, as well as MN. The majority of ND's NR's hail from MN, and most of them have not been happy with the current cap and legislation placing restrictions on them. Which just goes to show you how ***-backwards the 9th circuit court's decision was, that even MN sportsman want it overturned due to what it could do to the resource(s). Even though having it upheld could potentially eliminate the caps in the Dakota's and make license prices the same for everyone, whether you're a resident or NR.

AZ chose to appeal the ruling to the supreme court where they have overturned 29 of 30 decisions the 9th curcuit has made. I think after this is all said and done their new record will be 30 for 31.


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## David S Proffitt (Sep 13, 2002)

Matt my understanding is that on January 15, the Sup Court voted not to hear the appeal. As I understand it the ruling holds until ... I guess someone file a law suite. My guess is that some state will maintain caps and someone will sue the state and hope for another outcome. But I don't know much about anything ....


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## Matt Jones (Mar 6, 2002)

No you're right David, I just did a little checking and found out the same as you, sorry about being misinformed on that.

I guess I don't know what to say...I find it a little hard to swallow that the supreme court turned down the petition from AZ and 21 other states to hear the case. I'm not sure what this means. Since they turned it down, does that mean they are saying that they agree with 9th curcuit court's decision???

How long will it take before someone challenges the caps the Dakota's have???


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## Ron Gilmore (Jan 7, 2003)

Was at my TIPS meeting this morning and was told that a group of guides and landowners are planning just that if any caps are passed. I was informed late this evening that this includes guides and outfitters as they are claiming to fall under the interstate commerce law. I gues we have to push and make sure that we get something in place and hope that if this goes infront of a different judge that we get a better outcome. I am working on the names of the guides and outfitters.

This is why I have been pushing the gudie and outfitter rules so hard because I think that this will be the area that we have a greater chance of winning as most of the time Leg. seldom like to pass laws challenging rulings that will require monetary commitments. In these times of tight budgets I would not be surprised by this type of action.


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## Dan Bueide (Jul 1, 2002)

Not familiar with all the details of this case, but it is not law of the land here. The effect of the SC denying cert. on this 9th Circuit case means that under the particular issues appealed from that case and under the particular facts and circumstances of that case, the SC saw no reason to re-examine the issue. Again, from what little I know of the entire matter, this is a disappointing result, but no death penalty.

If and when the 8th Circuit (the one we're in) rules on the issue, or the SC takes another case and depending on how braodly they base their decision, then we'll have some precedent.

Two things to keep in mind. The 8th Circ. is regarded as generally more conservative than the 9th and includes states where hunting/fishing is a more widely participated in activity (i.e. they will have a greater connection to the outdoors). Also, the biggest reoccuring theme of the current SC is "state's rights" - this court has given much greater deference to a state's ability to manage its own affairs without running afoul of some federal requirement.

Given that virtually every state treats res/nonres differently in some respect for at least some game, and has for quite a while, don't panic yet. And if the guides thought they were unpopular now, how well do you think they're going to be received when they start working hard to make all of our game, including deer, big game, turkeys and everything else as equally accesible to nonres.

Sorry, David, this is still no reason to jump on the public access express.


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## muzzy (Mar 21, 2002)

This is off of the supreme court decision a little bit, but I wanted to comment on the access issue. Most people would like more access on a public basis. The problem is we never get ahead of the curve. Nonresidents pour in faster than the game and fish department can acquire land in the access programs. Part of this is the more public land that is available, the more enticing it is to nonresidents. I have started to form an opionon that it might cause more problems than it solves. It almost makes it too easy to rely on public areas and people are not making the connections with private landowners. Are we getting into a situation where money is just being dumped, and it could be spent better other ways? We don't have all of the answers, but it doesn't seem to be alleviating the problems yet. I just think we need another answer other than more access. Every year their is more and more public access available and the problem just gets worse and worse.


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## Ron Gilmore (Jan 7, 2003)

Muzzy you make a valid point, I have been talking access. This means keeping more private land from being sold or leased, thus taking presure off the public area's. We will never have enough public land for all to be happy. 
The increase in licence fee's are not out of line and should be implemented even if the money goes into the general fund for the G&F.

I have said before that unless we put controls in place we will not have a place to hunt unless you want to pay. We are headed for 75% of all private land being leased and the balance not having any game on it.


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## David S Proffitt (Sep 13, 2002)

My thoughts, although I see your point of view Mussy, is that without increasing public access then more and more people are going to take the option of leasing or using a guide to ensure access. I am a NR hunter and use public access land and non-posted land for the pheasants. I hunt on an uncles place for the ducks. I hate to say it, especially here, but if I was in a position that I had to secure a lease or not go hunting, I am getting a lease or purchasing some land. I support increasing fees and tying it directly to land access programs. I think it is very dangerous to send that money to the general fund - wait till it is tagged for other uses and then try to get more general fund money for access.

I also don't see how in good faith the state political machine is going to cap non-residents across the board. The fact is that ND is the only state to have a smaller population then it did in 1933. The average income is significantly lower then the national average. Capping a financial resource to the state is going to be a tough message to sell. Telling a farmer that he can't diversify to increase earnings is going to be tough to sell. Or that the value of his land should be less because someone else doesn't want it leased or sold to a non-resident. I read this board every day and feel like I understand the whys involved, I am just saying that I think it is going to be very difficult to achieve what appears to be the aim of some on this board, limiting non-residents.

I have stated my opinion before but I feel it is in the majorities best interest right now to focus on spreading out the pressure by using more zones, increase revenues through license increases which tie directly to access and habitat protection, and legalizes the practices of guides.

I would love to see a tax on non-farming leasing of raw land to make leasing less attractive and increase revenues. Promoting hunting by both residents and nonresidents in a way that benefits small businesses, local farmers, and all of us is the way to go from my perspective.

Their is a rule in management called the 80/20 rule. 20 percent of the effort gets you 80 percent of the effect. 80 percent of the effort gets you 20 percent of the effect. Focusing on the easiest way to get the most benefit reduces wasted effort. Along these lines I wish the concerned sportsman here could find a way to partner with small business administration, ND Association of Chambers of Commerce, Farmers Association or other like groups to see what can be done now to benefit all.

Okay, not the perfect answer but just my thoughts.


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## Dino (Jan 2, 2003)

A different thought on access and public lands. Increasing the number of public lands (or number of acres) is not as important to increasing the number of acres of quality habitat. These two are not the same. I have seen some public areas with crummy habitat, increasing the quality of habitat will have a better overall effect. Hunters will not have to hunt 4 or 5 different public areas in a day, but will only hunt 2 or 3. There will be more birds available. Increasing the number of public areas does little or nothing for the resource (the birds). Increasing the habitat increasing the birds and decreases the access problem. I havent read much about habitat work in ND. That surprises me. Most people give that deer-in-the-headlights look when asked about habitat.


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## snowdog (Jul 30, 2002)

Why is it so hard to prohibit leasing land for hunting purposes, or to prohibit commercialization of hunting by outlawing that service? Legislatures have outlawed prostitution. If it was illegal to lease land for hunting purposes and if it was illegal to act as a guide/outfitter and charge hunters for the privelege of hunting (it is illegal to charge for sex) the State would not have to spend tax dollars on PLOTS programs, and access issues, and hence, the "I've got mine and want my state government to protect it" attitude that currently exists because of the commercialization would be eliminated, and the proposals to increase restrictions on NR hunters, discriminatory licensing fees/structures, and the rest would be unnecessary.

All the proposals I've seen are doomed to fail, if the object is to preserve a hunting tradition for North Dakota residents, because outfitters will make offers farmer/landowners can't refuse because the outfitters will always find rich New Yorkers (or wherever) willing to pay obscene fees to shoot pheasants.

If outfitters want to make a living in the hunting industry, let them run commercial game preserves and raise and release the birds for hunters to kill (sort of a Mustang Ranch approach to hunting).

Right now, what is happening is the farmer/landowners are "double dipping" as far as I'm concerned, in that they are collecting CRP payments and then leasing those lands to commercial operations for hunting. I think that is probably a violation of the CRP contract, in the first place, or at least it should be. In my opinion, I have already paid for those wild birds on CRP lands.

Just my two cents worth. I know noone will ever take it seriously that so-called guide/outfitters are the moral equivalent of prostitutes, but they are, in my mind, and I know that North Dakota is not likely to ban leasing lands for hunting privileges, so I know that, ultimately, the hunting tradition will go they way of the buffalo, become a sport of kings, or, for North Dakota, become similar to Texas, where you have to pay to play.


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## MRN (Apr 1, 2002)

Snowdog,

I do agree with you (and have posted here to effect also http://www.nodakoutdoors.com/members/ph ... .php?t=154 ). Game animals are a public resource. That simple fact is lost in this entire debate.

The plan you mention has been in place in Alberta and Sask. That is the reason that some many sportsmen are now going up there. I see it as the only real way to get a handle on what's going on - the Texas model or the Alberta model. (I'm from Alberta - I like that model.)

I think most folks here are scared of such a plan. It might anger a few landowners. Cause a bigger backlash or something - it might look like you are stealing from the poor. You would think PETA would take up this issue on our behalf - selling a public natural resource....

Stick to your ideas. Publicize them all you can. Perhaps folks will come around in two years. Right will again become right.

M.


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## snowdog (Jul 30, 2002)

MRN

Thanks for the link. I wish every state in the US would have a similar set of laws!!!


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## MRN (Apr 1, 2002)

Yes, I especially liked Bioman's explanation of public trust:



> Water resources and their associated wildlife are tied to the "public trust domain." If you are not familiar with this concept, I will briefly introduce the roots and where the public trust doctrine has been applied.
> 
> Under Roman law it was stated "by the law of nature these things are common to all mankind; the air, running water, the sea, and consequently the shores of the sea." What this meant was that the rivers, ports, sea, shores of the sea, and rights to fish in and use those areas belonged to the public trust. Stated another way, the "ownership" of such areas was deemed an inherent element of sovereignty. Thus, under the common law, these public rights were inalienable and could not be transferred by the government into private ownership, any more than could any other governmental power held by the sovereign. This concept, which came to be known as "the public trust for commerce, navigation and fisheries," eventually found its way into American law.
> 
> ...


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## tsodak (Sep 7, 2002)

Maybe what will end up being needed is a referal campaign of the sort that happened with the pay to stay proposal last year. Instead we coud say that it is illegal to recieve an renumeration for access onto your property for the purpose of hunting or fishing, unless it was from the state. People could still guide, they just could not lease. Maybe an exception for Shooting Preserves with released birds??? It would engage the people of the state to unprecendented levels I'll bet. Maybe Dan could draft the law. Woul dbe something to see wouldnt it???


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## Qwack (May 25, 2002)

MRN,

I scanned the thread that you had a link to and couldn't find anything on the Texas model--what is that?


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## MRN (Apr 1, 2002)

Sorry Quack, no reference to the Texas model there. Generically, the texas model is where everything is for sale and too expensive for us prols.

M.


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