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Montana Outfitters Action Group v. Fish & Game Comm'n

ELR Citation: 7 ELR 20046
Nos. No. CV 75-80-BU, 417 F. Supp. 1005/(D. Mont., 08/12/1976)

A three-judge district court upholds the constitutionality of Montana's big game licensing procedures despite discrimination against nonresident hunters. Nonresident plaintiffs were required to pay a license fee 7.5 times greater than that of Montana residents in order to hunt elk in the state. While the disparity could not be justified on any basis of cost allocation, the court nonetheless justifies the state's right to make such laws and regulations as it deems necessary to manage and conserve the elk. Plaintiffs' right to hunt elk is no more than recreational and, therefore, not protected by the U.S. Constitution. A state may thus prefer its own residents over nonresidents in the enjoyment of an activity where the opportunity is created or supported by the state and where the activity can be enjoyed only by a portion of those who would seek to do so.

A dissent argues that the state interest in conservation justifying discrimination is not supported by any authority. Discrimination merely to secure political support for a program in the public interest is prohibited by the Equal Protection Clause and impossible to limit in practice.

Counsel for Plaintiffs
James H. Goetz
15 South Tracy St., Suite 8
Bozeman MT 59715
(406) 587-0618

Counsel for Defendants
Robert Woodahl, Attorney General
Clayton Herron, Special Asst. Attorney General
Department of Justice
208 State Capitol
Helena MT 59601
(406) 49-2026

Smith and Jameson, JJ.; Browning, J., dissents.