Jump to Navigation
Jump to Content

Conservation Force, Inc. v. Manning

Citation: 33 ELR 20012
No. Nos. 00-17082, -17394, 301 F.3d 985/(9th Cir., 08/20/2002)

The court holds that Arizona's cap on nonresident hunting of antlered deer and bull elk substantially affects and discriminates against interstate commerce and remands the case for further proceedings to determine whether Arizona has met its burden of showing that it has no other means to advance its legitimate interests. The court first holds that contrary to the district court's finding, hunting of bull elk and antlered deer in Arizona substantially affects interstate commerce, as do Arizona's restrictions on that hunting by nonresidents. Thus, the dormant U.S. Commerce Clause applies to this case. The court next holds, however, that Arizona has legitimate interests in regulating hunting to conserve its population of game and maintain recreational opportunities for its citizens. The protection of wildlife and other natural resources of a state are some of the state's most important interests. Additionally, it has long been recognized that a state has a legitimate interest in providing enjoyment to its own people. Nevertheless, the court holds that Arizona has yet to demonstrate that the cap is narrowly tailored to its legitimate ends. Arizona cannot meet its burden of showing that its cap on nonresident hunters is narrowly tailored to its conservation interest simply by demonstrating that Arizona residents desire similar or more severe restrictions on nonresident access to hunting, even if Arizona could show that residents conditioned their support of the government's programs on the adoption of such discrimination. And even if Arizona can show that some effort is needed to ensure that its citizens have access to recreational hunting, a question of fact remains whether a cap on nonresident hunting is the least discriminatory alternative to serve Arizona's interests. The court, therefore, remands the case for further proceedings.

Counsel for Plaintiff
Sherman Fogel
Fogel & Lamber
2850 E. Camelback Rd., Ste. 200, Phoenix AZ 85016
(602) 264-3330

Counsel for Defendants
Jay R. Adkins, Ass't Attorney General
Attorney General's Office
1275 W. Washington St., Phoenix AZ 85007
(602) 542-4266