In May, the State of New Mexico filed a motion to overturn the famous Terk case. David B. Terk v. James S. Lane, Jr., individually and as Director of the Department of Game and Fish, State of New Mexico, Scott Bidegain, Thomas Salopek, Tom Arvas, Paul Kienzle III, William Montoya, Robert Espinoza and Ralph Ramos, individually and as members of the State Game Commission, State of New Mexico (74-837-M Civil). The Terk case is the only case to have ever held that it was a violation of the Equal Protection Clause of the US Constitution to discriminate against nonresident hunters.
In 1978, that Federal Court issued a permanent injunction prohibiting the State of New Mexico from discriminating in the allocation of licenses for Rocky Mountain and desert bighorn sheep, oryx and ibex. In 1997 the state tried to overturn the injunction. Conservation Force was retained by David Terk and we defeated the motion. We defeated it on the basis that the Director of the Game Department had admitted in his deposition that the sole justification of the discrimination was to favor residents over nonresidents, which was outright discrimination. Now the state has learned of David Terk’s death and has filed a new, second motion to overturn the injunction.
If the 1978 injunction is overturned, then the New Mexico current statute, 17-3-16 NMSA 1978 will apply. That provides that 84 percent of licenses issued by special draw (such as licenses for bighorn sheep, oryx, ibex, deer, elk, pronghorn and others) be issued to residents. Of course, that too can be changed to wholly eliminate nonresidents, but there is no evidence of such a present intent. Since 1978 the licenses have been allocated equally.
It is not clear that Conservation Force will again enter into this litigation to save the one case based upon pure and simple discrimination. It is also not clear if Terk’s two daughters, heirs, wish to substitute for their deceased father, who died April 9, 2000. We estimate the cost of defense to be approximately $20,000 and are already operating in the red due to other litigation.
Other nonresident hunter license discrimination cases have rested upon the Dormant Commerce Clause of the US Constitution, but a stop was put to that line of cases when Congress passed the Reaffirmation of Resident and Nonresident Hunting Act of 2005, Pub. L. No. 109-13, section 6036, 119 Stat. 231, at 289-290 as part of an emergency military appropriations bill. Although not a standing statute on the books, it provided a Congressional statement of policy to permit states to discriminate in allocation of hunting and fishing licenses and prices under the Commerce Clause. That led to the dismissal of all the then pending cases, but did not affect the longstanding Terk case that was based upon the Equal Protection Clause, not the Dormant Commerce Clause.
The new motion can be viewed on Conservation Force’s website at http://www.conservationforce.org/news.html
. A copy of the 1998 court judgment denying the first motion like this is also at that same site.
In the original motion to set the favorable injunction aside, we appeared pro hac vice, as out-of-town counsel, though we did all the work. Again we need a local attorney to act as local counsel, though we will do all the work should we participate. This is a call for a volunteer local attorney admitted to the Federal District Court in Albuquerque, New Mexico. If willing to serve as local counsel, then please contact John J. Jackson, III at firstname.lastname@example.org or at 504-837-1233.