One federal court case challenging discrimination a- gainst nonresident hunters is still very much alive! All of the nonresident rights cases were dismissed last year following the passage of Senator Reid’s bill. That bill (Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005) gave states express authority to discriminate against nonresident hunters and anglers. The suit filed by the state of Minnesota and Senator Collin Peterson against the state of North Dakota was appealed. The Attorney General of Minnesota and private counsel of Collin Peterson have made some very persuasive and authoritative arguments to the United States Court of Appeals for the Eighth Circuit. (No. 05-3012) The case was argued on March 24, 2006 and a decision is imminent.
The Minnesota case is unique. Its primary claim falls under the Privileges and Immunities Clause of the US Constitution. It singles out the hunting rights of nonresidents that own or lease land in North Dakota.
The right to the equal use of property is the issue, not recreational hunting. Though recreational hunting has not been found to be a protected right under the Privileges and Immunities Clause, “property rights are one of the few rights that have been consistently found to be protected by the Privileges and Immunities Clause.” The US Supreme Court has held that the clause prohibits discrimination against nonresidents “in the acquisition and enjoyment of property.” Resident landowners don’t even need a license. North Dakota fully exempts resident landowners and leasees from licensing for waterfowl hunting. The relevant North Dakota Code section provides: “Any resident, or any member of the resident’s family residing customarily with the resident, may hunt small game (includes waterfowl), fish, or trap during the open season without a license upon land owned or leased by the resident.” The claim arises from North Dakota’s discriminatory restrictions on nonresident’s use of their own land.
Minnesota is also continuing with its Dormant Commerce Clause claim. The Trial Court that dismissed the case did not rely upon the Reid Bill. The Judge held a dim view of the Reid Bill’s assertion that recreational hunting and fishing are not commerce under the Commerce Clause. He did not feel that Congress can define or limit the Constitutional meaning of commerce. That would take a Constitutional Convention, not just a rider to an appropriations bill. The Court expressed that “Congressional interpretation of what is and is not interstate commerce is not controlling on the judicial branch.”
This is a waterfowl licensing case. Waterfowl are migratory species largely regulated by the USF&WS. Minnesota itself admits that “a state cannot own migratory birds.” Management necessity is not the basis for the discrimination. The states of South Dakota, Alaska, Colorado, Kansas, Montana, Nebraska, Nevada, Utah and Wyoming filed a joint Amicus Curiae brief in support of North Dakota and against Minnesota. Their arguments ring hollow.
Other Developments
The discrimination trend against nonresidents continues to worsen. Licensing was made more discriminatory in Nevada, Arizona, Colorado and other states in 2005.
Even Conservation Force has suffered some retribution for its early leadership role in securing a more equitable share for residents. Conservation Force has lost some important funding and yours truly was threatened with expulsion from one important organization very dear to him. Nevertheless, we continue to look for more balanced solutions. During the summer, I was asked to address the issue before the American Wildlife Conservation Partners (AWCP) at its annual conference. Later, I addressed the State Sportsmen’s Caucus Assembly in a similar search for solutions.
My points at both meetings were that the Reid Bill is a wholly one-sided resolution, that most land in some of the discriminating states is federal land primarily managed by the federal government at the cost of nonresidents in the amount of billions of dollars - more than all of the state wildlife management budgets combined. Nonresidents are even bearing most of the state-borne wildlife management costs in those states discriminating against nonresidents.
It’s not the nonresidents who are doing the discriminating and it’s not nonresidents who made it a Congressional issue. Instead, nonresidents are the ones paying the states’ bills. Nonresident hunting would be a growth component of the hunting world but for the artificial barriers being erected by some local groups.
We have not found a solution to this problem, but one was suggested recently at the North American Wildlife Conference. A prominent Western Director suggested that hunters’ energy should be redirected to educating local people on a state-by-state basis. It must be their political will. The fate of nonresident hunting and fishing rights is in their hands and has been relegated to each state independently to determine for itself as the people of each state dictate.
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Service Proposes Sweeping Trophy Import Rules Changes
On April 19, the US Fish & Wildlife Service (USF&WS) issued a 228-page proposal of internal rules for CITES permitting. The new regulation has no equal in the history of the Service and is not customer-friendly.
The stated objective is the revision of the Service’s internal operating rules to incorporate decades of Resolutions passed at CITES Conferences of the Parties. That is a serious mischaracterization because the proposal selectively goes far beyond that. Comments are due on or before May 19, 2006, a mere 30 days from the time this is written.
The proposal is really a “re-proposal” of rule changes first noted for comment in 2000. At that time, Conservation Force and others opposed many of the proposed rule changes but Conservation Force’s most important comments have been largely disregarded.
One important provision of the Endangered Species Act (ESA), Section 9 (c)(2), sets out a prohibition against the USF&WS regulating importations of trophies of threatened listed species when they are already protected by Appendix II of CITES. That Dingell Amendment of the ESA was designed to prevent the Service from interfering with trophy imports. Nevertheless, the Service proposes “that a person who is importing a specimen under this provision must provide documentation to USF&WS at the time of import that shows the specimen was not acquired in foreign commerce in the course of a commercial activity.” How this requirement can be fulfilled is not specified. The Service confirms that no import permit is required for Appendix II species, but it conditions the import under some circumstances.
The Service is even proposing to redefine “sport-hunted trophy.” “The definition does not include handicraft items or items manufactured from the trophy used as clothing, curios, ornamentation, jewelry or other utilitarian items.” “We (the Service) do not agree that utilitarian items manufactured from a trophy should still be considered a trophy. We recognize that manufactured items have been included in trophy shipments imported in the past, but this practice has caused problems in differentiating between commercial and noncommercial shipments….” The Service does not give any CITES-related basis for the definition change. We know that this change was suggested to the Service by anti-hunters. Of course, the proposed rule would only apply to Appendix I species because they are the only trophies requiring import permits. The proposal gives examples of items like briefcases and handbags. It obviously prohibits import of elephant hair bracelets, leopard teeth jewelry, etc. There is no statutory or basis in the CITES Resolutions for this infringement on hunter’s enjoyment of their trophies. This is wholly the subjective decision of technocrats who have decided what personal use you can make of your trophies. Of course, you still can have the functional part made from your trophy after it is imported.
The Service is also restricting some uses of trophies after they are imported. The Service feels that trophies should only be put in personal trophy rooms for personal use. They can not be sold. The Service has added meaning to the fact that they cannot be sold. “[A] transfer, donation, or exchange, may be only for noncommercial purposes…. thus, we propose to add this new section that conditions the import and subsequent use of CITES wildlife or plant specimens. The import and subsequent use of Appendix I specimens and certain Appendix II specimens, including a transfer, donation, or exchange, may be only for noncommercial purposes. Such imports are conditioned by the regulation that the specimen and all its parts, products, and derivatives may not be imported and subsequently used for any commercial purpose. The importer will not be allowed to use or transfer the specimen for commercial purposes once in the United States. Any financial benefit of gain would include, but not be limited to, the donation of these types of specimens, including sport-hunted trophies, where the owner claims a tax deduction or benefit on his or her local, State or Federal tax return.” The Service gives an example: “One commenter specifically requested that the sale of trophies by estates or trusts be allowed. Although we do not consider transfer to an heir a change in the use of a specimen, the sale or donation of a specimen that results in some form of financial benefit or gain would be considered a commercial activity and not allowed.”
The Service states, “We propose to incorporate into 50 CF part 23 a provision that Appendix I specimens and certain Appendix II and II specimens may not be imported and subsequently used for a commercial purpose. This provision is to prevent commercial use after import when the trade allowed under CITES is only for a noncommercial purpose. The provision would apply to Appendix II specimens that are subjected to an annotation that allows noncommercial trade of sport-hunted trophies, such as those of African elephant populations of Botswana, Namibia, South Africa, and Zimbabwe. Under the regulations proposed here, these types of trophies may be imported for personal use only and may not be sold or otherwise transferred for economic gain, including for tax benefits, after importation into the United States.” The Service quotes from Resolutions of CITES expressly providing that the Appendix I trophies of leopard, markhor and black rhino be “imported as personal items that will not be sold in the country of import.”
The primary purpose of a sport hunt is recreation and not an incidental donation to a public education charity after the fact. Moreover the amount of such a tax deduction is by law only a fraction of the cost of the hunt. In short, it costs more to acquire a personal trophy than the amount of the deduction and, moreover, deductions are not dollar for dollar. Deductions only offset a fraction of a person’s income depending upon that person’s income bracket. If the person’s “primary” purpose was really commercial (donations are noncommercial activities to everyone else), it would be a commercial loss in our opinion. Donations are losses, not gains, and a noncommercial activity from the get-go. That is why they are deductible.
The Service is taking it to an extreme. We must presume the trophy owner would be charged criminally under the Lacey Act if he were to make a tax deductible donation of the trophy or is eligible to take such a deduction. We presume there will be no more elephants to replace those centered at the Smithsonian or in the Ackely Room of the New York Museum of National History. Does this mean that a hunter’s cash donations to the CAMPFIRE Program during an elephant hunt is a crime? If one buys a hunt of an Appendix I species at a convention above value, will it now be criminal to import the trophy because part of the costs may be deductible? This was not in the original proposal in 2000. It is a recent addition and an overreaction to anti-hunting activists. The Service is unwittingly doing the work of the anti-hunting lobby.
More permits are to be denied through “abandonment”. If the Service finds that an application is incomplete, it will contact and give applicants 45 days to provide additional information. If the applicant does not respond within the 45 days, the Service proposes to “abandon the file” and “not re-open the application if the applicant sends the additional information at a later date.” Of course, the applicant can submit a new application with a new application fee. The practice was to reopen the file when the applicant was able to respond even though at a later date. The Service itself can take years and often does, but will no longer ex
