# Is it constitutonal to discriminate against Non Residents?



## Park (Mar 14, 2004)

I would like an opinion of a lawyer (if there is one out there) on weather it is constitutional to discriminate against non residents either by charging more, restricting seasons or capping numbers by state agencies.

Does the 14th amendment apply here as to the equal protection clause?

Thank you

Park


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## njsimonson (Sep 24, 2002)

Here are some rulings by courts regarding regulations of residents and non residents:

"It was *not *unconstitutional for nonresident to pay 7 1/2 times more than resident for hunting license because engaging temporarily in a recreational activity in a sister state was not a fundamental right protected as a privilege and an immunity." - . Baldwin v. Fish & Game Comm'n (US Sup. Ct. 1978)

"State restrictions on hunting licenses did not violate federal and state constitutional rights of ranchers who offered hunting services to out-of-state residents because the licensing scheme served a public purpose and promoted the public welfare." - Clajon Prod. Corp. v. Petera (10th Cir. 1995)

The state's hunting licensing provisions, which resulted in a disparity in the cost of elk hunting licenses to nonresidents as compared to residents, bore a rational relationship to the legitimate state purpose of managing and preserving wildlife. - Montana Outfitters Action Group v. Fish & Game Com., (Dist. of Montana 1976)

State's cap on nonresident hunting substantially discriminated against interstate commerce and, although the state had legitimate conservation interests in regulating hunting, there was no showing that it had no other means to advance its interests. - THE BAD CASE - Conservation Force, Inc. v. Manning, (9th Cir 2002)

Hope these help, and of course, I'm not a lawyer...YET!


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## nodakoutdoors.com (Feb 27, 2002)

Are you saying NO state should discriminate for any reason?

Same hunting law?
Same fishing laws?
Same property taxes?
Same college tuitions?
Same drivers licenses?
etc. etc. etc.

Should we not have states at all and change the flag to just one star?

and no, I'm not a lawyer...


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## Field Hunter (Mar 4, 2002)

Geeze, talk about posting something that's just going to stir-up the pot a whole bunch. IF, and it's a big IF, the state of MN is successful in the law suit, MN sportsmen may get more than they think the will. I think it would be fun to spear the northerns out in front of our lake place in the next couple of years. Another question, and I'm not complaining, is it unconstitutional for a state to charge higher taxes for property located within a specified distance of a lake?


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## PSDC (Jul 17, 2003)

Field Hunter:

Don't understand your question about higher taxes for property
adjacent to a lake?


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## Park (Mar 14, 2004)

Field Hunter

I don't think property taxes would count because it is based on the value of a specific piece of land. It does not discriminate between people.

Tight Lines
Park


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## Brad Anderson (Apr 1, 2002)

:eyeroll:


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## Goldy's Pal (Jan 6, 2004)

This is a real dandy of a topic. Park, you might be the reason why my insurance rates are what they are. I'm not going to doubt that there is probably more than one lawyer willing to take on this case however. CHI- CHING. k:

uke:


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## Goldy's Pal (Jan 6, 2004)

Call Jackie from "Seinfeld" He should know.


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## Guest (May 15, 2004)

No doubt G.P.!!! :lol:


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## snowflake (Apr 2, 2004)

Personally I don't discriminate against anyone,I'm just a crabby old bastard that hates everyone equally :wink: ,Except folks from Mn.,and I hate them one AT A TIME!!!


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## mallardhunter (May 15, 2004)

I don't like to but when some people are tresspassing on someones land it is most likely to be an non-resident person because they don't care as long as they get their pheasants. :******:


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## njsimonson (Sep 24, 2002)

Well mallardhunter...new to the board and already flaming the NRs. You'll fit right in here! :lol:

I'd like to do some work on this case. Gonna be a big show! Unfortunately, the earliest I'll be licensed is October!


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## Goldy's Pal (Jan 6, 2004)

mallardhunter said:


> I don't like to but when some people are tresspassing on someones land it is most likely to be an non-resident person because they don't care as long as they get their pheasants. :ticked:


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## Goldy's Pal (Jan 6, 2004)

Are we talking nation wide NRs or just us Minnesota Nrs??? Here I thought we were just the major problem with your waterfowl. Just put us in with all problems then. Pheasant, (like you mentioned) Deer, Fish, Camping spots, the line at the gas station, you know I'm the guy in front of you taking soooo much time. Where will it end???? I'm sure that I ordered the last lobster in the tank at the seafood place you were waiting in line with your little girl friend with. She got ****** so you got nothing because of me. I'm sure I played the North dakota lottery and won that by one number in front of you. That mallard that was going to land in your decoys, well my Dad shot that too. How ya like them apples????


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## wiscan22 (Apr 4, 2004)

Goldy's Pal said:


> Are we talking nation wide NRs or just us Minnesota Nrs??? Here I thought we were just the major problem with your waterfowl. Just put us in with all problems then. Pheasant, (like you mentioned) Deer, Fish, Camping spots, the line at the gas station, you know I'm the guy in front of you taking soooo much time. Where will it end???? I'm sure that I ordered the last lobster in the tank at the seafood place you were waiting in line with your little girl friend with. She got ticked so you got nothing because of me. I'm sure I played the North dakota lottery and won that by one number in front of you. That mallard that was going to land in your decoys, well my Dad shot that too. How ya like them apples????


Ah Goldy, he's talkin all of us NR's. We all trespass, we all shoot way over our limits, could care less if we shoot the farmers cattle and God protect the wives and children. It's totally amazing what 28,000 individuals can do to a state in such a short period of time.... I mean when we come, there ain't NO place to hunt 'cause we just overun the whole damn state... every field, woods, swamp, you name it, we're there. And birds, man if I write it here it might be used as a confession so I've got to be careful. Just like locusts in a food patch... that's us NR's. I heard ND R hunters were going to be nominated the "Most moral in the US" just because they're so damn honest and ethical. In all my trips I've yet to see a "Bad One" and by the way, that mallard your dad shot... it was mine! :wink: :eyeroll:


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## Goldy's Pal (Jan 6, 2004)

" that mallard your dad shot... it was mine! :wink: :eyeroll:"

:toofunny: You "Packer fans" are all the same. :rollin:


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## wiscan22 (Apr 4, 2004)

Goldy's Pal said:


> " that mallard your dad shot... it was mine! :wink: :eyeroll:"
> 
> :toofunny: You "Packer fans" are all the same. :rollin:


*OUCH!!! :beer:

That was a good one!  *


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## Goldy's Pal (Jan 6, 2004)

Nah, without "Packer fans" the NFL would be boring. I love the rivalry. You're aaaaaalright Wiscan22. 8)

:beer:


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## wiscan22 (Apr 4, 2004)

Goldy's Pal said:


> Nah, without "Packer fans" the NFL would be boring. I love the rivalry. You're aaaaaalright Wiscan22. 8)
> 
> :beer:


Ditto! :beer:


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## MN Fisher (May 12, 2004)

Chris Hustad said:


> Are you saying NO state should discriminate for any reason?
> 
> Same hunting law?
> Same fishing laws?
> ...


What would actually be wrong with having federal hunting and fishing regulations? Everything would be the same everywhere then...same rules on hooks (is a treble hook 1 or 3? Depends), seasons, limits, etc.

I will skip the property tax one because that is based on value not R/NR.

What would be wrong with having a flat rate for colleges? There could still be tears (sp.) for different levels...an A college = $500/yr, a AA college = $1,000/yr....

One Driver's License system would be good too, say you can't get licensed in ND because it has been revoked, perhaps you could get a valid one int MN. If you get pulled over now in ND and have warrents for speeding in CO nothing would probably happen, however with a federal system in place, the warrents would be inforced.

Just some thoughts, but the one I am most in favor of is Federal Fishing Regs, so rules are the same everywhere.


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## KEN W (Feb 22, 2002)

MN Fisher...I disagree...why would we want the feds to control everything...with state's and local rights,I have a lot more input than with the federal gov.I see no benefits to letting the Feds control everything,except for large Population states[Minn?] to impose their will on less populated states.I just can't see the feds micro-managing...the states should have control over local issues.Plus why create more federal bureaucracy?


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## BigDaddy (Mar 4, 2002)

MN Fisher:

Federal hunting and fishing regulations would probably not work for the several reasons.

First, productivity of water bodies and land can vary greatly across the country. Therefore, a person might be able to harvest 5 birds in a highly-productive area without an adverse effect on the population. In another, lower-productive area, the population might be able to handle only 2 or 3 birds.

Second, pressure and harvesting practices differ across the country. The crappie limits in ND and MN are a great example. The limit for crappie in MN is 10, while in ND it is 35. Although the lakes in MN are probably more productive crappie fisheries, the differences in fishing pressure is huge. Allowing the harvest of 35 crappie in MN would quickly impact the populations in certain lakes. This is also why some states have a walleye season opener so that fish are not hammered during the spawn, while others do not.

Third, the differences in weather patterns have a big impact on the timings and lengths of seasons. A season might start in September in one part of the country, and October someplace else.

For all of these reasons, it is best to leave the management of wildlife to states. Hopefully, state agencies will have appropriate expertise and experience to set limits based on the best management of the resource in their area, and they can factor productivity, pressure, and harvesting practices into these decisions.


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## MRN (Apr 1, 2002)

A vote for "Nationalism" over "Stateism"? I could not be more horrified. Forget the practical issues, this is crazy from fundamental principles. Our founding fathers would be rolling over in their graves. What exactly do you think those old guys, like Jefferson and Maddison, were talking about for 20 years at the beginning of the US? Big centralized government is bad, but is useful for a very very few things....

The whole goal of the US was the formation of a federation of independent states. No one should want a national government, except those with political motives and opportunity to seek greater power at the expense of states' power and freedoms (think modern democrats). You could be from MN or you could be from China - no different from a state's point of view - you're a non-resident.

All this panty-waisted "I'm discriminated against because I can't hunt" stuff just illustrates how poorly understood the basic ideals that this country was founded upon are, or just how left-wing-squewed this place is becoming. Its not discrimination, its the fact that states are, and should remain, independent and in control of their individual directions.

M.


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## northdakotakid (May 12, 2004)

THE RESON THAT YOU CAN NOT HAVE A FEDERAL ONLY CONTROLLED LAW SET IS BECAUSE WITH THE DIVERSITY AND SHEAR SIZE OF THE ASSETS IN EAXH OF THE STATES. THERE HAS TO BE BOTH MICRO AND MACRO MANAGEMENT, THAT IS THERE HAS TO BE CONTROL ON THE LARGE SCALE(FEDERAL) AND ALSO ON THE SMALLER SCALE(STATE) IN ORDER TO FUNCTION.

IF WE ALLOWED OPEN BORDERS JUST THING HOW DESIMATED ANIMAL POPULATIONS WOULD BECOME. ALSO, THE RESIDENTS OF THE STATE SUPPORT NOT ONLY THE MICRO AGENCIES (STATE G&F) BUT ALSO THE FARMERS AND THEIR COMMUNITIES THAT ULTIMATELY MAINTAIN THE LANDS WE HUNT.

SO REALLY THERE IS NO ACCEPTABLE ARGUEMENT FOR THIS, I THINK THEY DID TRY THIS IN THE U.S.S.R. THOUGH, THEY CALLED IT SOCIALISM.


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## MN Fisher (May 12, 2004)

Well, Ken W., BigDaddy (why can't I say that without laughing?) and northdakotakid.

Thank you for your responses. You touched on things I hadn't thought about. This next question(s) will be geared more toward fishing as I fish more than hunt.

Would you be more receptive to having one set of rules (i.e. what kind of hook, how many hooks, how many lines; styles like trap-lines, spearing) for everyone and let each state determine limits and seasons and such?

What about costs? Could/should the federal government control rates? Have a set rate for residents and a set rate for non-residents nation-wide? Why should I go to SD and get a 3 day license for $30 when I can go to MN and get a NR season license for $34? I live 1 mile from MN and 8 miles from SD...which would you choose?

I will conseed the limits, seasons and such as I hadn't given that a lot of thought.

MRN ~

It wasn't a vote for "Nationalism" as much as it was for uniformity. While I appreciated your response, I didn't appreciate the tone that went with it.


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## Ron Gilmore (Jan 7, 2003)

With Waubay that close to you I would be spending my money on a SD license and forget MN. If dollars are the issue I know I can always economize to save the extra license fee for fishing and upland. Elk on the other hand is another story.

The biggest reason I see for not having standardized regulations is enforcement and population impact it has.

MN has in and around the Twin Cities a huge difference in the affects that population can and does have on the lakes. When I lived in WI the lakes of MEndota and Monnona had at one time a fabulous perch and white bass fishery. To many people utilizing the resource coupled with [poor reproduction levels crashed the lakes. Not until severe restrictions where implemented id they start to rebound. Having to do this at a national level would be a bloody nightmare. Now look at stocking of lakes. If the Feds had to decide when and where many of the perch lakes in ND would not have ever been created. The local ability to do this allowed places like Alkali and Mueller and Diamond just to name a few to provide a totally new fishery.

ND is going to lose some of these in the very near future but it proved that when and if the water retrains again like that to move on them and many more. Few new fisheries can be created in other regions nor would the fact that they would be temporary be something that time and effort needed would be allowed. 30-50 100 acre waters are to susceptible to over utilization that higher density populations create.


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## Park (Mar 14, 2004)

The question was not how to manage game and fish (that could still be done by each state according to there needs).

The question was is it constitutional to discriminate based on where someone lives.

Thanks 
Park


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## Ron Gilmore (Jan 7, 2003)

Park it is done all the time. Special assesments, taxes on property, license fee's for all types of things other than hunting. Insurance licence are the first thing that came to mind. You need to step out of the box and look at the issue other than hunting.


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## indsport (Aug 29, 2003)

Let me take a swing at the question. The US Constitutional Amendment that is most often quoted in this issue is the 10th which basically says that powers not delegated to the federal government by the constitution are reserved to the states. Since the federal government has never made claim to non migratory wildlife in the US constituition, states control their non migratory wildlife. All states have something in their constitutions that say that non migratory wildlife belongs to the state. Since the state has ownership, any laws or regulations regarding state property apply.
Case law and precendent over the years has consistently supported state's rights to make any laws regarding wildlife and to have different fees for residents versus non residents. All states have higher fees for non residents than residents. Regulations regarding the legal methods of harvesting wildlife generally apply equally to both residents and non residents, however, having differing requirements or seasons or bag limits or any other law has been consistently ruled not to be discrimination. Examples include requiring non residents to use a guide for big game (many states do this). Some states charge different property tax rates to residents versus non residents.

As to migratory wildlife, e.g. ducks, there exists laws rules and regulations that cede the ability to set season dates from the federal government to the states. However, the federal government sets the bag limiits, possession limits, total length of the season, etc and the states may set no regulation that abrogates the federal rules. In addition, migratory birds are subject to treaties among the US, Canada, Mexico, Russia and Japan and as such, are treated differently from non migratory wildlife.


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## swift (Jun 4, 2004)

Park, I believe that once hunting is viewed as interstate commerce it will fall under the 14th amendment. In the USO vs Arizona game and fish it was found to be interstate commerce and the state lost. The trouble is there are too many appeals to go through. This one I think went to the US Supreme court and was sent back to the appellete court. It will be interesting how it finally plays out. hope it helps.


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## northdakotakid (May 12, 2004)

Park,

We have had this conversation many times.......

It is not unconstitutional to descriminate a resident form a non-resident.

*The 14th amendment was set up to clear up racial desrimination, womens sufferage.... it is still the states right to descrimiinate a resident from a non-resident.....check your privelage clause of the 14th amendment. 
Again...pay our resident income tax and there would be no arguement. You even get to hunt the first weekend of pheasant season!!!*


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## swift (Jun 4, 2004)

hey Kid you better do a little more studying. It is unconstitutional for a business to discriminate against another states resident. It falls under interstate commerce.


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## swift (Jun 4, 2004)

Another way to look at it is... would it be legal for the mall in Grand Forks to charge 50% more to the people of East Grand Forks? The answer is NO. As more and more people bring to light that hunting is becoming a business the Feds will classify it as interstate commerce and there will no longer be nonresident fees and season times. It will also end landowner preference systems such as our Gratis licenses. I am not a proponent of this but someday it will happen.


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## gandergrinder (Mar 10, 2002)

The absolute worst thing in the world that could happen to wildlife is for hunting to be classified as commerce. Then we will only have incentive to keep desirable species.

I wonder if anyone would be willing to teach online ecology courses on this site. I think it would open some eyes.


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## Bobm (Aug 26, 2003)

GG, if they make the environment friendly for game animals don't the other species benefit from that? I've often heard that as a argument from the pro hunting side and frankly it makes sense to me. But I'm just a dumb ol business major :lol: I do resent the resident preference on federal land, the whole Montana elk season and the way they allot liscenses is run by commercial interests. I don't have a problem with it on state or private land in a state though.


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## gandergrinder (Mar 10, 2002)

Commercialization= politics entering the wildlife management arena and I don't think that is a very good scenario for wildlife.

Just my opinion. This from a guy who has a degree in Accounting.


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## Bobm (Aug 26, 2003)

The way things are heading guides will need accountants, Just kidding don't get excitied


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## jimboy (Apr 1, 2003)

Gandergrinder,
I couldn't agree with you more. As soon as wildlife becomes classified as commerce, you can kiss freelance goodbye. It will open the door for every Tom, Dick and Harry with a sizeable bank roll to invest in this commerce to the extent that all available land will be bought and or leased for the pupose of milking the outdoor sporting community. I said it before: I support any initiative that ND passes that will preserve the quality of hunting and have no problem with the residents of ND getting first crack and preferential treatment. After all it is their home and they should be able to set their own rules for the guests that wish to partake of their hospitality.


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## Ryan_Todd (Apr 11, 2004)

great post jimboy, couldn't aggree more. if that happened, nodak would become another texas.


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## jhegg (May 29, 2004)

The following statements appear on the US FWS web site: (http://hunting.fws.gov/)



> Since the late 19th century, hunters concerned about the future of wildlife and the outdoor tradition have made countless contributions to the conservation of the nation's wildlife resources. Today, millions of Americans deepen their appreciation and understanding of the land and its wildlife through hunting. Hunting organizations contribute millions of dollars and countless hours of labor to various conservation causes each year.
> The Service considers hunting to be an important tool for wildlife management. Hunting gives resource managers a valuable tool to control populations of some species that might otherwise exceed the carrying capacity of their habitat and threaten the well-being of other wildlife species, and in some instances, that of human health and safety.
> Under Federal law established by international treaties with Canada, Mexico and other countries with whom we share migratory birds, the Service has ultimate responsibility for regulating migratory bird hunting nationwide. Through a regulatory process that begins each year in January and includes public consultation, the Service establishes the frameworks that govern all migratory bird hunting in the United States. Within the boundaries established by those frameworks, State wildlife commissions have the flexibility to determine season length, bag limits, and areas for migratory game bird hunting.
> *Each state has primary responsibility and authority over the hunting of wildlife that resides within state boundaries* The State fish and wildlife agencies that sell hunting licences are the best source of information regarding hunting seasons, areas open/closed to hunting, etc. Hunting of migratory birds such as ducks and geese is managed cooperatively by State fish and wildlife agencies and the U.S. Fish and Wildlife Service. Migratory waterfowl hunters must possess both a State hunting license and a Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp).


The bolding is mine.


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## northdakotakid (May 12, 2004)

please realize that this is not a commerce issue. I would ask you then is it valid for states that do not have sales tax to use their tax-exempt privilages in a state that charges its state residents a sales tax...example, Montanta (not picking, just an example) residents can buy goods here and show their ID and be exempted from paying that tax?? HOw is this different???

Just asking???


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