[Congressional Record Volume 151, Number 13 (Wednesday, February 9, 2005)]
[Extensions of Remarks]
[Pages E202-E203]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 INTRODUCTION OF BILL TO REAFFIRM STATE AUTHORITY TO REGULATE RESIDENT 
                  AND NONRESIDENT HUNTING AND FISHING

                                 ______
                                 

                            HON. MARK UDALL

                              of colorado

                    in the house of representatives

                      Wednesday, February 9, 2005

  Mr. UDALL of Colorado. Mr. Speaker, today I am introducing a bill to 
reaffirm the authority of each state to regulate hunting and fishing 
within its boundaries, and especially a state's authority to enforce 
laws or regulations that differ in the way they treat that state's 
residents and people residing elsewhere.
  A similar Senate bill has been introduced by Senator Reid of Nevada, 
who introduced a related measure in the 108th Congress. He has been the 
leader on this matter, and I am proud to join in the effort.
  There is nothing new about a state's having different rules for 
resident and nonresident hunters or anglers. Colorado draws that 
distinction in several ways, and many other states do so as well.
  And while there have been challenges to the validity of such rules, 
until recently the federal courts have upheld the right of the states 
to make such distinctions. For example, in 1987 the federal district 
court for Colorado, in the case of Terk v. Ruch (reported at 655 F. 
Supp. 205), rejected a challenge to Colorado's regulations that 
allocated to Coloradans 90% of the available permits for hunting 
bighorn sheep and mountain goats.
  But a recent Court of Appeals decision marked a change--something 
that definitely is new.
  In that case (Conservation Force v. Manning, 301 F.3rd 985; 9th Cir. 
2002), the federal appeals court for the 9th Circuit held that 
Arizona's 10 percent cap on nonresident hunting of bull elk throughout 
the state and of antlered deer north of the Colorado River had enough 
of an effect on interstate commerce that it could run afoul of what 
lawyers and judges call the ``dormant commerce clause'' of the 
Constitution.
  Having reached that conclusion, the appeals court determined that the 
Arizona regulation discriminated against interstate commerce--meaning 
the ``dormant commerce clause'' did apply and that the regulation was 
subject to strict scrutiny, and could be upheld only if it served 
legitimate state purposes and the state could show that those interests 
could not be adequately served by reasonable non-discriminatory 
alternatives.
  The appeals court went on to find that the regulations did further 
Arizona's legitimate interests in conserving its population of game and 
maintaining recreational opportunities for its citizens, but it 
remanded the case so a lower court could determine whether the state 
could meet the burden of showing that reasonable non-discriminatory 
alternatives would not be adequate.
  Because of the decision's potential implications for their own laws 
and regulations, it was a source of concern to many states in addition 
to Arizona. In fact, 22 other States joined in supporting Arizona's 
request for the decision to be reviewed by he U.S. Supreme Court.
  Colorado was one of those States, and our then-Attorney General, Ken 
Salazar, joined in signing a brief in support of Arizona's petition for 
Supreme Court review.
  Regrettably, the Supreme Court denied that petition. So, for now, the 
9th Circuit's decision stands. Its immediate effect is on states whose 
federal courts are within that circuit--namely those in Alaska, 
California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as 
well those of Guam and the Commonwealth of the Northern Marinas. But it 
could have an effect on the thinking of federal courts across the 
country.
  The bill's purpose is to forestall that outcome, and so far as 
possible to return to the state of affairs prevailing before the 9th 
circuit's decision.
  The bill would do two things:
  First, in Section 2(a), it would declare that the policy of Congress 
is that it is in the public interest for each state to continue to 
regulate the taking of fish and wildlife within its boundaries, 
including by means of laws or regulations that differentiate between 
residents and non-residents.
  And, in Section 2(b), it would provide that silence on the part of 
Congress is not to be construed by the courts as imposing any barrier 
under the commerce clause of the constitution to a state's regulation 
of hunting, fishing, or trapping.
  These provisions are intended to speak directly to the ``dormant 
commerce clause''

[[Page E203]]

basis for the 9th Circuit's decision in Conservation Force v. Manning.
  I am not a lawyer, but my understanding is that lawyers and judges 
use that term to refer to the judicially-established doctrine that the 
commerce clause is not only a ``positive'' grant of power to Congress, 
but also a ``negative'' constraint upon the States in the absence of 
any Congressional action--in other words, that it restricts the powers 
of the states to affect interstate commerce in a situation where 
Congress has been silent.
  Section 2(a) of the bill would end the perceived silence of Congress 
by affirmatively stating that state regulation of fishing and hunting--
including State regulation that treats residents and non-residents 
differently--is in the public interest. This is intended to preclude 
future application of the ``dormant commerce clause'' doctrine with 
regard to such regulations.
  Section 2(b) would make it clear that even when Congress might have 
been silent about the subject, that silence is not to be construed as 
imposing a commerce-clause barrier to a state's regulation of hunting 
or fishing within its borders.
  This bill is neither a federal mandate for state action nor a 
Congressional delegation of authority to any state. Instead, it is 
intended to reaffirm state authority and make clear that the ``dormant 
commerce clause''--that is, Congressional inaction--is not to be 
construed as an obstacle to to state's regulating hunting or fishing, 
even in ways that some might claim adversely affect interstate commerce 
by treating residents differently from nonresidents.
  It's also important to note that the bill is not intended to affect 
any federal law already on the books or to limit any authority of any 
Indian Tribe. Section 3 of the bill is intended to prevent any 
misunderstanding on these points.
  Section 3(1) specifies that the bill will not ``limit the 
applicability or effect of any Federal law related to the protection or 
management of fish or wildlife or to the regulation of commerce.''
  Thus, to take just a few examples for purposes of illustration, the 
bill will not affect implementation of the Endangered Species Act, the 
Migratory Bird Treaty Act, the Lacey Act, the National Wildlife Refuge 
Administration Act, or the provisions of the Alaska National Interest 
Lands Conservation Act dealing with subsistence.
  Section 3(2) similarly provides that the bill is not to be read as 
limiting the authority of the federal government to temporarily or 
permanently prohibit hunting or fishing on any portion of the federal 
lands--as has been done with various National Park System units and in 
some other parts of the federal lands for various reasons, including 
public safety as well as the protection of fish or wildlife.
  And Section 3(3) explicitly provides that the bill will not alter any 
of the rights of any Indian Tribe.
  Mr. Speaker, this bill is narrow in scope but of national importance 
because it addresses a matter of great concern to hunters, anglers, and 
wildlife managers in many states. I think it deserves broad support.
  For the information of our colleagues, here is a brief outline of the 
bill and a letter of support from the International Association of Fish 
and Wildlife Agencies:

                            Outline of Bill

       Section One provides a short title--``Reaffirmation of 
     State Regulation of Resident and Nonresident Hunting and 
     Fishing Act of 2005.''
       Section Two has two subsections:
       Subsection 2(a) states that it is the policy of Cogress 
     that it is in the public interest for each state to continue 
     to regulate the taking of fish and wildlife for any purpose 
     within its boundaries, including by means of laws or 
     regulations that differentiate between residents and non-
     residents with respect to the availability of licenses or 
     permits for particular species, the kind and numbers of fish 
     or wildlife that may be taken, or the fees charged in 
     connection with issuance of hunting or fishing licenses or 
     permits.
       Subsection 2(b) states that silence on the part of Congress 
     is not to be construed to impose any barrier under the 
     commerce clause of the Constitution to a state's regulation 
     of hunting or fishing.
       Section Three specifies that the bill is not to be 
     construed as--limiting the applicability or effect of any 
     Federal law related to the protection or management of fish 
     or wildlife or to the regulation of commerce; limiting the 
     authority of the federal goverment to prohibit hunting or 
     fishing on any portion of the federal lands; or altering in 
     any way any right of any Indian Tribe.
       Section Four defines the term ``state'' as including the 50 
     States, the District of Columbia, Puerto Rico, Guam, the 
     Virgin Islands, American Samoa, and the Commonwealth of the 
     Northern Mariana Islands.
                                         International Association


                                of Fish and Wildlife Agencies,

                                 Washington, DC, February 9, 2005.
     Hon. Mark Udall,
     House of Representatives, Cannon House Office Building, 
         Washington, DC.
       Dear Congressman Udall: The International Association of 
     Fish and Wildlife Agencies, whose government members include 
     the fifty state fish and wildlife agencies, strongly supports 
     your bill to reaffirm state regulation of resident and non-
     resident hunting and fishing. This bipartisan bill is 
     necessary to address the recent decision of the Ninth Circuit 
     in Conservation Force v. Manning, 301 F.3d 985 (9th Cir. 
     2002), cert. denied, 537 U.S. 1112 (2003). That unprecedented 
     decision concluded that hunting of big game in Arizona 
     substantially affects interstate commerce such that 
     differential treatment of residents and nonresidents must be 
     strictly scrutinized by federal courts.
       By subjecting to strict scrutiny analysis under the dormant 
     Commerce Clause state preferences for residents in highly 
     prized species, the Ninth Circuit decision strikes at the 
     ability of states to maintain the level of local sacrifice 
     and contribution necessary to produce big game.
       We appreciate your interest in rectifying the problems 
     caused by the Ninth Circuit ruling and appreciate also the 
     effort of your staff to assure the bill is sharply drawn so 
     that it neutralizes the effect of the court ruling, but 
     beyond that neither enlarges nor diminishes state authority. 
     The limitations provisions of section 3 are written to insure 
     that no existing federal or tribal authority relating to fish 
     and wildlife would be affected.
       Both resident and nonresident hunters and anglers 
     contribute to conservation, yet it is essential to 
     conservation efforts in the several States that the level of 
     hunting and fishing opportunity for residents not be eroded. 
     The passion and unity that derives from direct involvement by 
     residents in fish and wildlife programs is a critical asset 
     in resource protection and management. The bill you have 
     introduced reaffirms that the states are the appropriate 
     stewards of fish and wildlife resources within their borders, 
     the hallmark of the highly successful model of fish and 
     wildlife protection and management in the United States. 
     Permit numbers, license fees, hunt areas and season dates are 
     best handled through the legislative and rulemaking processes 
     at the state level.
       Thank you again for your initiative in taking this bill 
     forward. We look forward to working with you and your staff 
     to achieve enactment of the bill.
                                                  Terry Crawforth,
     President.

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