# Arizona Case



## Dick Monson (Aug 12, 2002)

Wildlife News 
July 15, 2004

A decision by a federal judge will affect impending fall hunt draw results for Arizona's elk and deer hunters.

U.S. District Judge Robert Broomfield, in a ruling issued July 13 in the case of Montoya vs. Shroufe, declared Arizona's 10 percent cap on nonresident hunt-permit tags unconstitutional. Broomfield also ordered the state to refrain from enforcing the cap.

Because the cap plays a role in the drawing system used to determine which hunters will receive a permit to hunt bull elk and antlered deer north of the Colorado River, the judge's ruling forces the Game and Fish Commission to find a method to distribute this year's fall hunt permits in a way that won't discriminate against out-of-state hunters.

The commission will consider its options in a special telephone meeting to be held Friday, July 16, noon, at the Wildlife Building on the Arizona State Fairgrounds. At the meeting, the commission will be briefed on the options and is expected to vote to direct the department how to proceed. The Wildlife Building is located at 1826 W. McDowell Rd.; members of the public who wish to attend the meeting are advised to avoid construction by entering the gate at 19th Avenue and Encanto.

Hunters applying for permits to hunt bighorn sheep, buffalo, antelope, turkey and javelina are not affected by this ruling.

Montoya vs. Shroufe began in 2000, when Lawrence Montoya, a self-described professional hunter from New Mexico who also runs a guide service, sued the Game and Fish Department claiming that Commission Rule 12-4-114E, which established the 10 percent cap on nonresident hunt permits, violated the Commerce Clause of the U.S. Constitution.

In yesterday's ruling, Judge Broomfield agreed and ordered the department to immediately stop using or enforcing the 10 percent cap.

The department will keep hunters informed by posting news about the fall draw on its Web site, azgfd.com. 
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## FACE (Mar 10, 2003)

Check out how some Arizona hunters are taking the news on this Arizona Sportsman Forum.http://www.azuho.com/ubb/ultimatebb.php?ubb=get_topic;f=3;t=001928
I know most of your feelings towards you own states G/Os but this is a bunch of @#$% coming from an out of state guiding service (so called professional hunter)
There are a lot of posts already and the topic was just started yesterday!!!


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## Bobm (Aug 26, 2003)

Face, Is the land federal or state lands they are discussing?


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## FACE (Mar 10, 2003)

Don't quote me but I think it is ALL huntable lands both public and private that fall into the zones brought out in the suits. It is amusing that the zones affected are only ones that are profitable to USO outfitters. They had no interest in filing lawsuits for any other zones or any other species of big game either. When living in Az it was common to put in for seven to eight years before getting drawn for elk or big mulies in northern Az as a resident! And after this case you can bet it will be even longer now!!! Perhaps that is why I've tied up all my time with bird dogs and hunting birds! Cheaper too!


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## jd mn/nd (Apr 8, 2004)

I have a question, if this ruling was made in AZ on big game how or will this effect the law suit between MN and ND? My understanding is that MN is sueing ND for the same reason, that it effects interstate commerce. Does this mean that ND will not be able to restrict NR's as previously suggested and that all res and NR's now will have to compete for a limited number of small game and waterfowl lisc., if so that would mean that the lottery will involve about 100,000 waterfowl and small game lisc and will a person be able to get both in the same year? Also what will happen to the zones will they stay in place and will each hunter regardless of res. status be limited to a zone or will it go to an open state wide hunting? Has anyone heard about what is currently happening regarding the lawsuit between MN and ND? Does anyone else have an opion on how this will effect the out come of the law suit between MN and ND?


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## Perry Thorvig (Mar 6, 2002)

JD - There are no answers to your questions, because nobody knows. You have the cart way before the horse here.


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## jd mn/nd (Apr 8, 2004)

Perry, my questions were asking for personal opions and personal feelings on the subject. As well as for info relating to current status of the law suit. I have checked the other forum and there have not been any postings listing and new info. You are generally a very well informed man and seem to have the current skinny on most subjects, I would be willing tobet that you have some sort of info on the matter.


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## Dan Bueide (Jul 1, 2002)

jd,

from what I've been able to follow, the judge's recent ruling in Montoya was more in the nature of an injunction - what AZ can and can't do this year. The AZ suit actually continues, as the 9th Circuit's ruling that set the world on its ear a couple of years ago also remanded the case back to the AZ District Court for additional findings to determine whether the 10% limit was the least obtrusive method AZ could employ to further the interests AZ had offered for the 10% limit, which interests the 9th found actually found legitimate. Most following the case closely feel that AZ will eventually loose this case under the rigorous, novel standards set by the 9th Cir.

ND (and MN) are in the 8th. Circuit. As such, what the 9th Cir. rules is "persuasive", but not authoritative here. The District Court Judge in the MN v. ND case (Hovland - seated in Bismarck) and eventually the 8th could follow the long line of similar hunting restriction challenges and hold exactly opposite to the 9th (in which case there's a greater chance the US Sup. Ct. would weigh in on the issue), or they could follow the 9th's lead. In any event, the most recent ruling in AZ doesn't change at all the landscape in ND for the time being and doesn't add to or subtract from the affect of the first AZ decision, which in and of itself is not the law of the land here.

As I understand where the MN case now sits, ND has filed a motion to have some or all of the MN claims tossed as a matter of law (arguing that various other laws do not allow for the claims or remedies sought by MN and the individual plaintiffs - Hi Chuck). Likely some will be tossed and some will survive for a greater review. All in all, this thing will likely lament (and cost both groups of taxpayers lots of money) for some time - years - before we will know the final impact, if any.

Also, keep in mind that these types of cases are very facts-and-circumstances driven. Just because AZ is prohibitied from limiting NR's to 10% of certain hoof licenses doesn't mean under the same principal ND couldn't use some system for capping NR waterfowlers and/or uplanders that was found acceptable under the exact test. Just probably not on the basis of some relatively low, fixed percentage.

Same goes for all of the other restrictions challenged in the MN suit. Montoya does not stand for the proposition that all NR restrictions are verboten - just that the commerce clause applies to hunting and that any restrictions must further a legitimate state interest and that there not be other less obtrusive means of furthering that interest. Obviously some very gray areas, that will likely generate much litigation, if this spreads beyone the 9th. Prior to AZ, and now potentialy ND, the CC did not apply to hunting - hunting was deemed recreation, not commerce - so you never had to wrestle with those gray areas.

The AZ case could have a more immediate, direct bearing on ND's hoof license allocation, even though that's not presently being litigated in the MN suit, since that restriction is most like the restriction being decided in AZ (You rabid mule deer and ****** hunters from units where buck tags are already a tough draw should be nervous, and this ought to motivate you to finally get off your hands in the hunting debates).

Although again, the AZ case, whatever the final result, is not binding in the 8th Cir. Persuasive, but not binding. Circuits split on rulings very frequently, which often causes the USSC to finally accept the issue for their consideration.

The irony I just can't get over, which shows how politically motivated the MN suit is, Hatch and MN JOINED ND and about 20 other states about 18 months before the MN suit was filed in filing a "Friend of the Court" brief in SUPPORT of AZ in its case against the outfitters. Two-faced, no-good-for-nothin', so and so's. Chuck, I hope you had to write some big political contribution checks to pull this one off. Shame, really.

That's about all I know.


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## Perry Thorvig (Mar 6, 2002)

JD - Dan said it all. He is the lawyer and knows very well how these things work.


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## Bobm (Aug 26, 2003)

The jackass guides and the dumbasses from our ranks that hire them have made hunting "commerce" thats the real problem. I feel that state land should be managed at the discretion of the state and its residents but I also personally do think that hunting on federal lands should be by lottery with no regard to residency. Its not owned by the state.


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## Dan Bueide (Jul 1, 2002)

Contrary to other stuff I've seen, the article posted by DK on the HT forum seems to indicate the most-recent AZ ruling is THE (not an interim) lower court ruling upon remand from the 9th. If that's the case, the matter is pretty much resolved for hoofs, with a low fixed cap in 9th circuit states.

There were some nuances to the case relating to certain AZ statutes about the sale of animal parts that could produce different results in other 9th Cir. states, and I'm sure even some 9th Cir. states with formats similar but slightly different than AZ will not change until successfully sued, but it would seem the CC has now officially successfully reared its ugly head in the context of hunting for the first time.

Chalk one up for the Safari Club International types of the world. Congratulations, you just officially successfully screwed the little guy who does all of his hunting at home. These morons are exactly the last ones who should be entitled to enjoy a sunset on some wooded ridge line - probably don't appreciate it anyways.

Let's hope the 9th's highest over-turn rate among the circuits eventually comes to bear on this one too.


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## jd mn/nd (Apr 8, 2004)

Dan Thanks for the info in regards to both cases. If you are a lawyer why is it then that MN and ND could not possibly subrogate the lawsuit to fit the majority of the populas's both NR's and Res. save thousands of dollars and apply the monies to a land program that could benefit both wildlife and sportmen of all kinds? Can you possibly imagine the chunk of land that could be purchased with all of that money? Also is the lawsuit going to effect this falls hunting or will things remain the same as last year for now? I have been tring to find info in regards to the impact of the lawsuit on upcoming hunting seasons. Also I am curious as to some of the farmers and ranchers in the northern part of the state feel about NR's and what kind of reception we can anticipate apon our arrival this fall? As I have stated in other forums my father and have hunted in ND for over 26 years consecutively and over half of my family is from ND I have spoken with my cousins in Harvey, Mercer, and Selfridge, as well friends in Towner, Minot, & Bismark and have yet to have any of them tell me that they thought we would have a problem with hunting this fall. Granted they do not know everyone in ND nor how they feel about NR hunters, hence the reason that I am trying to get a better feel for how things are this year. Any info anyone could provide would be greatly appreciated. :huh:


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## Matt Jones (Mar 6, 2002)

I don't think this lawsuit will do anything for the MN-ND lawsuit...since MN signed that petition, along with many states, siding with AZ when this first came out. I bet Hatch wishes he could go back and take his signature off that, I bet he would love to use this for his case. Seems kind hypocritical now...wait, better make that Extremely Hypocritical.


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