Supreme Court Finds Broad State Power to Limit Nonresident Access to Recreational Resources

On May 23, the United States Supreme Court upheld a state scheme for hunting licenses that required nonresidents to pay 25 times the fee of residents for the right to shoot elk in Montana. In Baldwin v. Fish and Game Commission,¹ Justice Blackmun, writing for the six-man majority, found that hunting was a recreational activity and thus not protected by the Privileges and Immunities Clause of the United States Constitution. Furthermore, the Court ruled, since the fee scheme was rationally related to the legitimate state objective of conserving wildlife, the state legislature had not violated the Equal Protection Clause by establishing such a marked difference in the resident and nonresident fees even though the differential could not be exactly justified by the added cost burden of regulating nonresident hunters.

The decision strengthens the role of the states in protecting wildlife found within their borders, but it raises disturbing suggestions that recreational access by nonresidents to a state's natural resourcess, be it wildlife or lakes or state parks, can be severely limited. The Court in effect held that the enjoyment of a state's natural resources was not an activity that must be offered to nonresidents on an equal basis with residents because such activity is not a right inseparable from national citizenship. The Court's failure to put discernible limits on the extent of discrimination that a state may practice against nonresidents raises the danger that a state may now charge nonresidents such a high fee to enjoy its natural resources as to virtually exclude them.

Background

Elk hunting is a trophy sport rather than an activity undertaken for a commercial purpose. Because of its large population of big game, Montana is a haven for sport hunters from all parts of the country. Effective conservation of the elk herds, however, requires an expensive management program carried out by state game wardens assisted by state-licensed outfitters and guides. Montana has established a limit on the number of nonresident elk licenses that may be issued, although no such limit is placed on resident hunters. In addition, there is a substantial license fee differential: in 1976, in order to hunt elk, a resident's license cost only $9, whereas nonresidents were required to pay $225.

Plaintiffs, although conceding that nonresidents may constitutionally be charged more for hunting and fishing privileges wildlife management program through taxes, challeged the disparity in the fee structure on the ground that it violated the Constitution's Privileges and Immunities Clause² and the Equal Protection Clause.³ A three-judge district court upheld the Montana licensing scheme,⁴ finding that plaintiffs' interest in hunting and recreation was not a fundamental right and thus was not protected by the Privileges and Immunities Clause. Furthermore, the court declared, since the asserted right does not have a constitutional basis and therefore is not fundamental, the discriminatory scheme need not be scrutinized strictly for purposes of an equal protection analysis. Rather, the court need only determine whether the discrimination bears a rational relationship to a legitimate state purpose, in this case, wildlife protection. The court admitted that no cost justification had been shown for the fee differential between residents and nonresidents but implicitly held the scheme rational for [8 ELR 10137] lack of proof to the contrary. The important points for the court were that the recreational resource was maintained with state revenues, that the activity was not a fundamental right under the Constitution, and the activity could not be held open to all who might want to enjoy it. On this basis, the district court held that when recreational interests are at stake "a state may prefer its residents over the residents of other states, or condition the enjoyment of the nonresident upon such terms as it sees fit."⁵

Privileges and Immunities Clause

The first and long dominant explanation of the Privileges and Immunities Clause was that it guaranteed certain "fundamental" or "natural" freedoms "which belong, of right, to the citizens of all free governments."⁶ A later opinion marked the emergence of a somewhat different privileges and immunities analysis, reading the Clause as placing "the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned."⁷ Following this idea, the Court later noted: "in any state every citizen of any other state is to have the same privileges and immunities which the citizens of that state enjoy."⁸ In Austin v. New Hampshire, its most recent exposition, the Court expanded on this theme, explaining that the Privileges and Immunities Clause established a "norm of comity" which made "noncitizenship or nonresidence an improper basis for locating a special burden."⁹

These broad formulations have been applied in a number of specific cases. The Court has held that state residency could be used as a distinguishing feature for purposes of suffrage,¹⁰ qualification to hold elective office,¹¹ or the provision of state services. ¹² On the other hand, the Clause prevents discriminatory burdens upon commercial activities,¹³ the ownership and disposition of privately held property,¹⁴ and access to the courts.¹⁵

When the Privileges and Immunities Clause has been brought to bear on the question of discriminatory access to wildlife resources, the Court has had little difficulty where the activity is closely tied to the pursuit of a commercial livelihood.¹⁶ In the leading modern case of Toomer v. Witsell,¹⁷ South Carolina imposed on nonresidents a boat license fee for commercial shrimp fishing in the state's coastal waters one hundred times greater than that charged to residents. The practical effect of this requirement was virtually to exclude nonresident fishermen. The Court held that commercial shrimping, "like other common callings," came under the Privileges and Immunities Clause. Although the state had an interest in regulating and protecting the shrimp fishery, this interest did not bear a reasonable relationship to the high degree of discrimination against nonresidents, making the license fee violative of the Privileges and Immunities Clause.

While the Court in Toomer ultimately relied upon the traditional characterization of the activity of commercial fishing as one protected by the Clause, it suggested that when faced with a disparity of treatment between residents and nonresidents, the correct approach is not necessaryly to compare the regulated activity against traditional notions of "fundamental" or "natural" rights to determine if that activity is subject to privileges and immunities protections. Instead, the Court intimated, the question should be whether there are "perfectly valid independent reasons" for the discrimination and whether the discrimination bears a close relation to those reasons."¹⁸ Under this formula, courts would apply a unified threshold analysis which incorporates consideration of the rationality of the state scheme.

The Baldwin Decision

Justice Blackmun, in the majority opinion in Baldwin v. Fish and Game Commission,¹⁹ opted for the more traditional approach in analyzing the validity of the Montana scheme. He first characterized elk hunting as a recreational sport and ruled this activity was not a basic right protected by the Privileges and Immunities Clause. The Court acknowledged that the contours to the Privileges and Immunities Clause were not well developed and examined several earlier decisions exploring this provision. Justice Blackmun read these decisions to mean that residency distinctions could be permitted where they "merely reflect the fact that this is a Nation composed of individual states," while such distinctions are prohibited where they hinder the operations of the state as a union:

Only with respect to those "privileges" and "immunities" bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally.²⁰

To determine whether access to recreational big game hunting fell in this category, the Court turned to the state's interest in wildlife. Early decisions had applied a concept of absolute state ownership of wildlife, justifying any discrimination,²¹ but subsequent decisions found that [8 ELR 10138] states had the power to protect wildlife only to the extent that the power did not interfere with interstate commerce,²² with the exercise of federal power over wildlife on federal lands,²³ or, under the Privileges and Immunities Clause, with the right of a nonresident to pursue a livelihood.²⁴ Justice Blackmun characterized the commercial fishing in Toomer as a "basic and essential" activity, "interference with which would frustrate the purposes of the formation of the Union." Elk hunting by nonresidents, on the other hand, was deemed a recreational or sporting activity and therefore not basic to the nation's vitality as a single unit. Since the elk supply required careful management in order to be preserved, Mantana's special interest in this resource justified discrimination against nonresidents.

The Court then proceeded to examine the great disparity in licensing fees under the Equal Protection Clause. Because no invidious discrimination was involved, the Court decided, the appropriate equal protection standard was whether the discrimination was rationally related to the substantial regulatory interest of the state in protecting a finite resource. The Court noted that Montana residents, unlike nonresidents, made a financial contribution towards preservation of the elk in the form of state taxes. The Court also pointed to the great increase in nonresident hunting in recent years and the difficulties of supervising elk hunting. It concluded that the Montana legislature had chosen an economic device the protect the elk and that the differential license fees represented a reasonable means of accomplishing this goal. Although the Court recognized that the licensing fee structure was highly favorable to residents and might have been more precisely determined on a cost apportionment basis, it held that precision was not necessary if the distinction rationally furthered the state objective.²⁵

In his concurrence,²⁶ Chief Justice Burger reiterated that a state has a special interest in protecting wildlife for the benefit of its citizens, regardless of whether the state interest is labeled "proprietary." He also emphasized that the Baldwin holding was limited to government-sponsored recreational opportunities. Recreational activities offered by private parties involve the sensitive area of trade and commerce, and access to such activities is, in his view, a privilege specifically protected against nonresident discrimination by the Privileges and Immunities Clause.

Dissent

In dissent,²⁷ Justice Brennan, joined by Justices White and Marshall, were concerned less with the characterization of the activity of elk hunting as being outside of the Privileges and Immunities Clause and more with the analytical methodology used by the majority to reach the ultimate decision to uphold the differential fee system. The dissenters found that plantiffs' alleged right should not be so easily read out of the Clause, and that proper analysis would indicate that the state scheme was unconstitutional.

The dissenters first criticized the majority for concentrating at the threshold on whether the asserted privilege represents a "basic" or "fundamental" right. Instead, they contended, the proper subject for examination was whether the state's justification for discriminating against nonresidents has a basis in fact. In Justice Brennan's view, the formula for evaluating whether the discrimination is justified under Toomer is whether nonresidents are the source of the problem and whether the degree of discrimination is substantially related to the problem presented by the nonresidents. The dissent would also put the burden of proof on the state to show that the discrimination is justified once a prima facie showing has been made that the discrimination is not rationally supported.

Applying this analysis, the dissent concluded that Montana's scheme failed to pass constitutional muster because there was no indication that nonresidents played a greater role than residents in threatening the elk herds. The dissent also emphasized the lower court's undisputed finding that the fee differential could not be justified on the basis of apportioning costs between residents and nonresidents. Since no cost basis had been established for charging nonresidents a higher license fee, there was no rational relationship between the heavier demands on state tax revenues presented by nonresident hunters. Finally, the dissent noted that the state's exercise of its police power to regulate activities dealing with wildlife within its borders could be carried out only in conformity with the Constitution. Since the license fee scheme's discrimination against nonresidents could not be justified under the Privileges and Immunities Clause, the state's regulatory interest in wildlife could not save it.

Discussion

The decision in Baldwin adds a chapter to the sparse judicial literature explaining the Privileges and Immunities Clause by holding that recreational access to wildlife is not protected under the Clause. This determination, in conjunction with Montana's acknowledged special interest in protecting its elk, was held to justify the state's discrimination against nonresidents in setting hunting license fees.

As to the second major issue presented by the case, the majority adopted an Equal Protection Clause rational relationship analysis, concluding that the discriminatory charging of higher fees to nonresidents was rationally related to the state's interest in protecting wildlife. Since [8 ELR 10139] state legislatures had to be given leeway in formulating the appropriate methods to protect this interest, there was no need to justify mathematically the degree of discrimination.

While the majority's approach of characterizing the activity as outside the scope of the Privileges and Immunities Clause has some support, the result reached by the Court on the fee differential is nonetheless disturbing. The majority failed to analyze carefully the state's justification for the discriminatory scheme and thus gave very little guidance to the states as to how much of a resident-nonresident disparity in recreational fees is permissible. This failure was the result of the Court's refusal to recognize that the Privileges and Immunities Clause analysis in prior cases has placed great importance on relating the reason for the differential treatment directly to the fact of nonresidence.²⁸

In Toomer, for example, characterization of the regulated activity as commercial was significant, but a crucial part of the analysis was the state's failure to relate the fact and degree of discrimination to the problem posed by nonresident shrimpers. The Baldwin Court, however, simply failed to require a strong showing that the discriminatory hunting license fees related to the problems presented by nonresident hunters. In an almost offhand manner, the Court noted that nonresident hunters had greatly increased in numbers, that they created greater enforcement problems, and that "some" of the problems were alleviated by the differential fee structure. The Court seemed to say that the mere finding of a special state interest is sufficient²⁹ and that the Court need inquire no further as to the degree of discrimination. Lacking a careful judicial analysis, it is not clear how it can be assured that the degree of discrimination in a specific case will be deemed rationally related to the discriminatory classification.³⁰

The implication of the Baldwin holding is that there may effectively be no limit to the fee differential that a state may establish to charge nonresidents for enjoying the state's recreational activities as long as it has a legitimate state interest, such as resource conservation, to protect. This raises a serious burden-of-proof question. What must a nonresident allege to show that the state's discrimination is not rationally related to such a purpose? The Baldwin majority agreed with the lower court that plaintiffs' argument that no fee difference greater than 2.5 to one could be justified was unconvincing and concluded that cost justifications were unnecessary. May a state legislature thus charge nonresidents a thousand times more than residents, effectively excluding them from enjoyment of the activity or resource? Could such a de facto exclusionary scheme pass constitutional muster? Under the majority's view, it very well might; under the approach urged by the dissent, it clearly would not.

There is no obvious legal barrier to the application of the Baldwin decision outside the sphere of wildlife to other recreational activities involving the enjoyment of natural resources within a state's control. State parks, beaches, lacks, and golf courses are supported by taxes paid by residents of the state or locality, and there seems little question but that nonresidents who wish to enjoy the recreational opportunities these sites afford should help pay for the cost of maintaining them. But the message of Baldwin is that nonresidents could be charged high use fees not reasonably related to the added expense of making the resources available to them and therefore effectively be excluded from enjoyment of the resource.

Conclusion

Baldwin provides an apparent basis for states to make special demands on nonresidents who enjoy a state's natural resources. Recreation may not be as fundamentally important to the nation as a whole as the right to earn a livelihood. Nevertheless, there is something very disturbing about the prospect that the states may closet off for their exclusive enjoyment natural resources as nationally important as the elk of Montana or the redwoods of California. Although a state should not charge nonresidents so heavily as to virtually exclude them, Baldwin seems to allow that course of action. By failing to set any guidelines or limits on the power of the states to discriminate, and to relate this discrimination against nonresidents to the threat that they may present, the Court has opened the way for further litigation to determine how far a state may go. Ultimately, if the Equal Protection Clause proves impotent to prevent de facto exclusion of nonresident access to recreational enjoyment of natural resources, the Court may be moved to reconsider its determination that recreation is not a right protected by the Privileges and Immunities Clause.³¹

1. 46 U.S.L.W. 4501, 8 ELR 20425 (May 23, 1978).

2. U.S. CONST., art. IV, § 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

3. U.S. CONST., amend. XIV, § 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

4. Montana Outfitters Action Group v. Fish & Game Comm'n, 417 F. Supp. 1005, 7 ELR 20046 (D. Mont. 1976).

5. 417 F. Supp. at 1010, 7 ELR at 20048.

6. Corfield v. Coryell, 6 F. Cas. 546 (No. 3230) (C.C.E.D. Pa. 1825) (Washington, J., sitting as Circuit Justice).

7. Paul v. Virginia, 8 Wall. 168, 180 (1868).

8. Hague v. CIO, 307 U.S. 496, 511 (1939). Although the Privileges and Immunities Clause was discussed in this case, the decision was ultimately based upon the privileges and immunities language of the Fourteenth Amendment.

9. 420 U.S. 656, 660, 662 (1975).

10. Dunn v. Blumstein, 405 U.S. 330 (1972).

11. Kanapaux v. Ellison, 419 U.S. 891 (1974).

12. Canadian Northern R.R. v. Eggen, 252 U.S. 553 (1920).

13. Toomer v. Witsell, 334 U.S. 385 (1948); Ward v. Maryland, 12 Wall. 418 (1870).

14. Blake v. McClung, 172 U.S. 239 (1898).

15. Canadian Northern R.R. v. Eggen, 252 U.S. 553 (1920).

16. See, e.g., Mullaney v. Anderson, 342 U.S. 415 (1952); Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948); Toomer v. Witsell, 334 U.S. 385 (1948).

17. 334 U.S. 385 (1948).

18. "The inquiry must also, of course, be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures." 334 U.S. at 396.

19. 46 U.S.L.W. 4501, 8 ELR 20425 (May 23, 1978).

20. 46 U.S.L.W. at 4504, 8 ELR at 20428.

21. See, e.g., Geer v. Connecticut, 161 U.S. 519 (1896); McCready v. Virginia, 94 U.S. 391 (1876); Corfield v. Coryell, 6 F. Cas. 546 (No. 3230) (C.C.E.D. Pa. 1825) (Washington, J., sitting as Circuit Justice).

22. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928).

23. Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976).

24. Douglas v. Seacoast Products, Inc., 431 U.S. 265, 7 ELR 20442 (1977); Toomer v. Witsell, 334 U.S. 385 (1948).

25. "Protection of the wild life of the State is peculiarly within the police power, and the State has great latitude in determining what means are appropriate for its protection." Lacoste v. Dep't of Conservation, 263 U.S. 545, 552 (1924), quoted at 46 U.S.L.W. at 4506, 8 ELR at 20430.

26. 46 U.S.L.W. at 4506, 8 ELR at 20430.

27. 46 U.S.L.W. at 4507, 8 ELR at 20431.

28. See, e.g., Austin v. New Hampshire, 420 U.S. 656 (1975).

29. Such a cavalier attitude has been frowned upon before:

Constitutional issues affecting taxation do not turn on even approximate mathematical determinations. But something more is required than bald assertion to establish a reasonable relation between the higher fees and the higher cost ….

Mullaney v. Anderson, 342 U.S. 416, 418 (1952).

30. It is additionally disturbing that the Court found no need to acknowledge that if conservation is the purpose behind Montana's scheme, conservation measures must be applied to resident hunters as well as nonresidents. "A statute that leaves a State's residents free to destroy a natural resource while excluding aliens or nonresidents is not a conservation law at all." Douglas v. Seacoast Products, Inc. 431 U.S. 265, __ n.21 (1977).

Parenthetically, it may be noted that a study found that, based on apportioning the additional costs generated by nonresidents hunters, most states would be justified in charging nonresidents a fee five times greater than a resident's fee. WILDLIFE MANAGEMENT INSTITUTE, REPORT TO THE WESTERN ASSOCIATION OF STATE GAME AND FISH COMMISSIONERS ON NONRESIDENT HUNTING AND ANGLING 10 (1971).

31. Subsequent to the Baldwin decision, the Supreme Court held that an Alaskan statute requiring that state residents be given preference for employment in the Alaskan oil and gas development industry, enacted for the purpose of reducing unemployment in the state, violated the Privileges and Immunities Clause of the Constitution. Hicklin v. Orbeck, No. 77-324, 46 U.S.L.W. 4773 (June 22, 1978). Following the Toomer analysis quite closely, the Court found the Clause applicable to the right to seek employment opportunities and found that high unemployment in Alaska was due not to the influx of nonresidents but rather to the lack of training and the geographic remoteness of residents. Furthermore, even if nonresidents were a source of the problem, the degree of discrimination did not bear a "substantial relationship" to the problem because it was not "closely tailored to aid" the Alaskan unemployed. Finally, Alaska's ownership of its oil and gas resources was deemed to be insufficient justification for the pervasive discrimination against nonresidents.