Opinion
No. CIV 98-0239-PHX RCB.
July 12, 2004
ORDER
A. Introduction
On September 19, 2002, the Ninth Circuit issued a mandate which clarified the legal standard applicable to the present dispute and remanded the case to this court for additional proceedings in accordance with that standard. That mandate clarified that the "dormant" Commerce Clause of the United States Constitution is applicable to Rule 12-4-114(E) of the Arizona Administrative Code (the "Rule"). This Rule places a 10% cap on the number of tags that can be awarded to non-residents for the hunting of bull elk throughout the state and for antlered deer in the area north of the Colorado River.
Since the mandate is an official record in this case, all references to that document are cited to the official mandate, as opposed to the Federal Reporter's published version of the opinion, found at Conservation Force, Inc. v. Manning, 301 F.3d 985 (9th Cir. 2000).
In an initial round of motions for summary judgment, Plaintiffs (Lawrence Montoya, et al., a group of professional hunters and guides residing in New Mexico) argued that the Commerce Clause was applicable to the Rule, and that the Rule was invalid under that Clause. Defendants (Duane L. Shroufe, et al.,) argued that the Commerce Clause was not applicable to the Rule. When the Court of Appeals' mandate issued, Plaintiffs requested the immediate entry of judgment on their behalf in light of the Ninth Circuit's ruling that the Commerce Clause applies, and Defendants' failure to respond to its Commerce Clause arguments in the original round of summary judgment briefs. See Motion for Entry of Judgment (doc. 135).
Defendants include Duane Shroufe, Director of the Arizona Game and Fish Department, as well as Dennis Manning, Michael Golightly, Herb Guenther, William Berlatt, and M. Jean Hassell, all members of the Arizona Game and Fish Commission; and Linda Melker, an employee of the Department. Third Amended Complaint (doc. 55) at 3-4. Each of the Defendants have been sued in their official (for declaratory and injunctive relief) and individual (for monetary damages) capacities. Id. at 4. The Arizona Game and Fish Commission is referred to as "the Department" in this order. While the Ninth Circuit's mandate refers to Defendants as "Arizona," this court refers to Defendants as "Defendants."
This court refused to simply enter judgment in Plaintiffs' favor at that time (without prejudice). Doc. 139. Instead, since the Ninth Circuit reversed this court's determination that the Commerce Clause does not apply, the court ordered the parties to supplement their summary judgment briefs to argue whether the Rule is invalid based on the Ninth Circuit's clarification that the Commerce Clause does apply.
Having reviewed the supplemental briefs, the court denied Plaintiffs' motion for summary judgment (doc. 76). Order (doc. 146). The basis for this denial was the Ninth Circuit's holding that a factual question exists as to whether the Rule is the "least discriminatory alternative" to serve Arizona's legitimate interests. Upon review of the supplemented pleadings, the court found that genuine issues of fact existed as to the question on remand, and determined that a trial was necessary.
More specifically, the court determined that a trial was needed to resolve whether any less discriminatory alternatives to the Rule exist — a finding which would invalidate the Rule, as discussed at length below. Order (doc. 146) at 18. The court additionally permitted the parties to take additional discovery on the remaining factual issue.
When the time set for conducting additional discovery passed, the parties entered into a stipulation (which the court approved) to submit the remaining factual and legal issues in this case on cross-motions for summary judgment, as opposed to a trial. Order (doc. 160). These cross motions were fully briefed on January 23, 2004. Doc. 177. The court, having considered the arguments presented by the parties, now rules.
B. Factual Background
The background facts of this dispute have been set forth at length in both this court's September 15, 2000 order initially resolving Plaintiffs' motion for summary judgment (doc. 122), and in the Ninth Circuit's mandate (doc. 133). The court incorporates the factual background contained in those orders.
C. Substantive Legal Standard a. Ninth Circuit's Mandate
The Ninth Circuit held that the Rule substantially affects interstate commerce (and thus, that the Commerce Clause applies) for two reasons. First, hunting in Arizona substantially affects the interstate flow of hunters who travel to the state to participate in hunts subject to the 10% nonresident caps. Id. at 12212. Second, Arizona hunting substantially affects the interstate flow of goods through the channels of commerce since Arizona allows the nonedible portions of bull elk and antlered deer taken from its lands to be sold in interstate and international markets. Id. at 12213.Next, the Ninth Circuit determined that the Rule overtly discriminates against nonresidents, since it restricts access to Arizona's hunting resources based solely on the applicant's residence. Id. at 12215. As a result, the Court held that the Rule is subject to "strict scrutiny" under the dormant Commerce Clause. Id. (Citing City of Philadelphia v. New Jersey, 437 U.S. 617, 627 (1978). Under this analysis, the Court explained, it is the state's burden to show that the discrimination is "narrowly tailored to further a legitimate interest." Id., citing Sporhase v. Nebraska, 458 U.S. 941, 957-58 (1982).
In considering whether Arizona had established any "legitimate interests" for the Rule, the Court recognized that:
Arizona's cap on nonresident hunting was designed to serve its interests in conserving the population of game on its lands while maintaining recreational hunting opportunities for its citizens. These interests are unquestionably legitimate. The protection of wildlife and other natural resources of a state are "of the state's most important interests." Id. at 12216, citing Pac. N.W. Venison Producers v. Smitch, 20 F.3d 1008, 1013 (9th Cir. 1994). Thus, the Court held that Arizona had met its burden under the first part of the strict scrutiny analysis. Id. at 12218.
The Court then focused on what it deemed the "key question in our analysis;" specifically, whether Arizona has met its burden under the second part of the inquiry, by demonstrating that the cap is narrowly tailored to its legitimate ends. Id. In this regard, it stated that this element requires a state to "demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest." Id. at 12218 (emphasis supplied), citing, C A Carbone v. Town of Clarkstown, 511 U.S. 383, 392 (1994).
In light of the Ninth Circuit's mandate, this court's present inquiry is very clear. The Court identified Arizona's legitimate interests as conserving game populations and protecting recreational hunting opportunities. This court must now determine whether the overtly discriminatory Rule, promulgated by the state to serve the state's legitimate interests constitutes the only way Arizona can accomplish that purpose. While the Court emphasized that the Rule is subject to "the strictest scrutiny" under the dormant Commerce Clause, it also held that the Rule's overt discrimination did not automatically render it unconstitutional.
The Ninth Circuit did not "foreclose the possibility that the goal of ensuring a state's citizens' access to recreational opportunities may justify limited consideration of residency in the allocation of hunting tags in some circumstances." Id. at 12221. This court's inquiry on remand is whether the Rule is the "least discriminatory alternative" to serve Arizona's legitimate interests. Id. at 12222, citing, Hughes v. Oklahoma, 441 U.S. 322, 337-38 (1979).
b. The Parties' Positions as to the Applicable Legal Standard
Plaintiffs argue that the Ninth Circuit has set forth the appropriate legal standard, recognizing that the standard articulated would be very difficult for the state to meet. The Ninth Circuit's standard shifts the burden to the state since the Rule is overtly discriminatory. As noted above, two iterations of the standard the state must meet are (1) "that it has no other means to advance a legitimate local interest" (Id. at 12218, citing, C A Carbone v. Town of Clarkstown, 511 U.S. 383, 392 (1994); or (2) that the Rule is the "least discriminatory alternative" to serve Arizona's legitimate interests. Id. at 12222, citing, Hughes, 441 U.S. at 337-38.
The Court of Appeals explained the historical imperative that lead to the adoption of the Commerce Clause, stating:
Under the Articles of Confederation, the balance decidedly favored the autonomy of states with the result that when victory relieved the Colonies from the pressure for solidarity that war had exerted, a drift toward anarchy and commercial warfare between states began in which each state would legislate according to its estimate of its own interest, the importance of its own products, and the local advantages or disadvantages of its position in a political or commercial view. The fear that this state of affairs would ultimately destroy the unity of the nation was an immediate cause, that lead to the forming of a constitutional convention.Id. at 12207 (internal citations and quotation marks omitted). Since the Framers understood the need to prevent this economic warfare among the states, the Commerce Clause was adopted to give Congress the power to regulate commerce among the states. Id.
While the Commerce Clause provides an affirmative grant of power to Congress, it has also been interpreted to contain a "negative aspect, referred to as the dormant Commerce Clause."Id. at 12208 (citations omitted). This clause "denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce." Id. (citations omitted).
The terms "no other means" and "least discriminatory alternative" are used interchangeably by the Court. As a result, Plaintiffs contend that "Defendants must disprove all other conceivably alternatives. This cannot be done. As will be shown, far too many possible alternatives are available or can be conceived. Many are in use in other states already." Motion (doc. 162) at 6. They argue that Defendants simply cannot sustain the burden the Ninth Circuit has imposed upon them in light of the numerous alternatives to the Rule that could serve Arizona's legitimate interests.
Defendants argue that "[t]he burden advocated by Plaintiffs is impossible to meet; Arizona cannot possibly disprove `all other conceivable alternatives' to its current regulation." Response (doc. 167) at 5. Defendants argue that they should not be required to meet the standard articulated by the Ninth Circuit's mandate, contending, essentially, that the Court of Appeals simply got the standard wrong. They argue that this court should look to applicable Supreme Court precedent, which, they argue, differs from the standard articulated by the Ninth Circuit. Id. at 3-5.
Defendants argue that the burden they must prove was established by the Supreme Court in Hughes v. Oklahoma, 441 U.S. 322 (1979). They claim that the standard articulated inHughes is the only applicable standard today. Id. at 3. Specifically, they argue that once a state law is shown to discriminate against interstate commerce, the burden falls on the state to demonstrate both that the statute "serves a legitimate local purpose and that this purpose could not be served as well by available nondiscriminatory means." Id., citing Hughes, 441 U.S. at 336; see also, Maine v. Taylor, 477 U.S. 131 (1986).
The practical significance of the rule articulated by Defendants is two-fold. First, they contend that only purely "nondiscriminatory" alternatives to the Rule — as opposed to "less discriminatory" alternatives (which could still be discriminatory in some way) — may be considered. Second, they contend that Hughes requires a consideration of whether a proposed alternative rule would serve the state's legitimate purpose "as well" as the current rule. As will be discussed below, Defendants' interpretation of the applicable standard ignores the current body of Supreme Court authority on the issue and flies in the face of the standard specifically articulated by the Ninth Circuit in this case.
i. Whether This Court Should Consider "Less Discriminatory" Alternatives
The first real defect in Defendants' argument is the fact that more recent Supreme Court precedent (since Hughes) articulates precisely the standard applied by the Ninth Circuit in this case. In C A Carbone, Inc. v. Town of Clarkstown, New York, 511 U.S. 383, 390 (1994), the Court considered a state law that overtly discriminated against interstate commerce. That Court articulated the standard applicable to an analysis of the law's constitutionality, stating:
Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the [state] can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest. Id. at 392, citing, Maine v. Taylor, 477 U.S. 131 (1986).C A Carbone does not require an analysis solely of "nondiscriminatory" alternatives — it requires a consideration of whether the state has "no other means" to advance its legitimate interests. It should be added that C A Carbone is fully in line with the Hughes Court's observation that "[f]ar from choosing the least discriminatory alternative, Oklahoma has chosen to [protect its legitimate interest] in the way that most overtly discriminates against interstate commerce."Hughes, 441 U.S. at 337-38 (emphasis supplied).
That the standard from C A Carbone applies to the present analysis is also articulated by Professors Rotunda and Nowak in their treatise. This persuasive authority explains:
The present state of this area of law is probably best summarized by former Solicitor General Robert L. Stern:
[W]here there is discrimination [against interstate commerce], the [Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951)] case holds, it must appear that there is no other reasonable method of safeguarding a legitimate local interest."
RONALD D. ROTUNDA AND JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW, SUBSTANCE AND PROCEDURE § 11.8, at p. 173. This "no other reasonable method" language mirrors that of C A Carbone almost precisely, thus furthering the conclusion that the court must consider all alternatives to the challenged rule — both "less discriminatory" and "nondiscriminatory" alternatives.
Maine v. Taylor, 477 U.S. 131 (1986), (which also post-datesHughes), relied upon by C A Carbone is demonstrative. The law at issue blocked all shipments of live baitfish at the Maine border — a law which overtly discriminated against interstate commerce. Id. at 138. Maine argued that the ban was necessary to protect its delicate wild fish species from parasites common in out-of-state baitfish. Id. at 142. Since the Court found that Maine had a legitimate interest in protecting its native wildlife, it next considered whether the ban met strict scrutiny. Id. at 144-45.
In analyzing this issue, the court considered less discriminatory alternatives to a complete ban. Id. Recognizing (as the Ninth Circuit did in the present case) that the analysis of alternatives requires a fact-specific inquiry, the Court deferred to the findings of the district court on this issue.
Observing that the trial court had considered alternatives to the complete ban, the Maine Court noted the district court's finding that "less discriminatory means of protecting against [the parasite threats] were currently unavailable." Id. at 143 (emphasis added). The Court then reviewed (and accepted) the district court's analysis of whether out-of-state baitfish could be inspected for parasites, and accepted that court's determination that no scientifically accepted techniques or standards for sampling and inspection existed. Id. at 146. The Court also accepted the district court's determination that Maine could not be required to develop inspection procedures at an uncertain cost. Id. at 147.
The Court's consideration of alternatives to an outright ban on out-of-state baitfish included an analysis of "less discriminatory" alternatives — indeed, these were not "non-discriminatory" alternatives since they still contemplated restrictions on the importation of baitfish from other states (through an inspection process). Only after rejecting the possibility of less discriminatory alternatives did the Court find that Maine's ban met strict scrutiny. Of course, while this case makes the point, it is unnecessary since it pre-dates C A Carbone.
In sum, C A Carbone's requirement that "no other means" exist to advance the state's legitimate interests requires the court to consider all alternatives to the challenged rule. These alternatives include both "less" and "non" discriminatory alternatives. A consideration of nondiscriminatory alternatives is merely a subset of all other alternatives that must be considered.
ii. Whether the State's Challenged Rule is the Benchmark Against Which Alternative Rules are Measured
Defendants also contend that Hughes requires the state only to show that any proposed alternative rules do not serve the state's interests "as well" as the challenged rule. Response (doc. 167) at 3. In other words, they contend that the challenged rule is the benchmark against which any alternative rules are measured. Hence, the state can meet its burden by showing that a proposed alternative rule does not serve the state's interests "as well" as the challenged rule. Id.
First, it must be reiterated that C A Carbone does not contain any requirement that alternative rules be measured against the challenged rule. Indeed, Defendants have not cited any cases which require such an analysis, or which have performed such an analysis. The Ninth Circuit's mandate contains no such requirement.
Hughes itself does not support Defendants' interpretation. While that Court stated that an analysis must be performed as to whether an alternative rule could serve the state's legitimate purposes "as well," (Hughes, 441 U.S. at 336) the very next sentence elaborates on this requirement, stating:
The burden to show discrimination rests on the party challenging the validity of the statute, but when discrimination against commerce is demonstrated, the burden falls on the state to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake.Id. (emphasis added; internal quotations and ellipses omitted),citing, Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 353 (1977).
Longstanding Supreme Court precedent places the focus of the inquiry on whether an alternative measure is "adequate" to serve legitimate state purposes. In Dean Milk Co. v. City of Madison, Wis., 340 U.S. 349, 354 (1951) the Court held that a state cannot overtly discriminate against interstate commerce, even to protect the health and safety of its citizens, if alternatives "adequate to conserve legitimate local interests are available."Id. The focus, therefore, is on whether an alternative rule is "adequate" to preserve the state's legitimate interest — not whether it does so "as well" as the current rule.
The Court in Dean Milk considered whether any alternative measure served the state's legitimate purposes in a "reasonable and adequate" way — not whether the alternative was somehow as good as or superior to the challenged rule. There, a city ordinance required all milk sold in Madison, Wisconsin to be pasteurized at a plant within five miles of the city center.Id. at 350. The Court noted that this law "plainly discriminate[d]" against interstate commerce by excluding the sale of wholesome milk shipped from outside the city. Id. at 354.
The Court recognized that the state had a legitimate purpose in protecting the safety and health of the local community by ensuring a sanitary milk supply. Id. at 353. Nevertheless, it found that "reasonable and adequate" measures were available to serve the state's interests. Id. at 354-55 (emphasis supplied). For example, the Court observed that local Madison officials could inspect milk pasteurized out of state to ensure that it met the same standards required of Madison producers, and charge the actual and reasonable cost of the inspection to the importing producers. Id. at 355. This "reasonable and adequate" standard is the same as that articulated in Hughes, as discussed above.
Finally, the Ninth Circuit's mandate in the present case uses the foregoing standard. It states that:
In enacting a rigid cap on nonresident hunting, Arizona put in place a severe form of discrimination in the allocation of government benefits. Where there are other less discriminatory means that could serve adequately Arizona's legitimate interests is a question of fact we leave to the district court in the first instance.
Mandate (doc. 133) at 12222 (emphasis supplied). In sum, the benchmark against which an alternative rule must be measured is the state's legitimate interest being served by the rule. NeitherHughes nor Dean Milk, nor any case cited by Defendants for that matter, engaged in any analysis of whether a proposed alternative served the state's interest "as well" as the challenged rule. These courts considered the state's legitimate interest, and found alternatives to serve that interest, concluding that strict scrutiny had not been met.
iii. Conclusion
In light of the foregoing, it is clear that the Ninth Circuit has effectively followed Supreme Court precedent in setting forth the standard applicable to this case on remand. The standard it set forth, requiring the state to shoulder the burden to demonstrate that the Rule is the "least discriminatory alternative" (i.e. that it has "no other means") to advance its legitimate interests is well-grounded in controlling Supreme Court precedent. Defendants' attempts to circumvent this standard by adding additional conditions do not withstand close scrutiny. Therefore, this court must, and will, apply the standard set forth in the Ninth Circuit's mandate, and consider whether the state has any other means to adequately advance its legitimate interests.
D. Analysis of Motions for Summary Judgment
First, the court observes that both Plaintiffs and Defendants have filed "cross-motions" for summary judgment in this case; however, having reviewed the motions, it is clear that they argue both sides of the same coin. It is therefore not necessary for the court to separately analyze the motions. The arguments made by both parties will be analyzed together below.
Defendants bear the burden of demonstrating that "no other means" exist to advance Arizona's legitimate interests in conserving wild game populations, and protecting recreational hunting opportunities for its residents. As a preliminary matter, it should be noted that Defendants arguments in opposition to Plaintiffs' motion for summary judgment (doc. 162), and in support of its own motion (doc. 168), flow from its erroneous interpretation of the applicable standard in this case as noted above.
Since Defendants believe that any alternative rule has to be compared with the present rule, it contends that there is no alternative to its 10% nonresident caps that will serve Arizona's purposes as well as the present regulation. They therefore fail to propose any alternatives of their own to demonstrate why their alternative is the "only" means, or the least discriminatory means, of reaching their goal.
Instead of proposing any alternatives of their own (which they can demonstrate are more discriminatory than the Rule), Defendants instead respond to the multitude of alternative rules proposed by Plaintiffs — arguing (again, under the erroneous standard) that those alternatives are unsatisfactory. Ultimately, however, it is Defendants that carry the burden of proof on this matter. As will be discussed below, Defendants have failed to carry their burden.
a. Whether Arizona's Rule is the Least Discriminatory Alternative
Since any alternative rule must adequately serve the legitimate purposes underlying the present Rule, it is important to review the Ninth Circuit's mandate concerning those legitimate interests. As noted above, the nonresident caps were designed to serve Arizona's interests in conserving the population of game on its lands while maintaining recreational hunting opportunities for its citizens. Mandate (doc. 133) at 12216.
The Court of Appeals observed that Arizona's game supply is "limited" and that its continued vitality is the product of Arizona's conservation efforts. Id. at 12217. Nevertheless, it indicated that neither of these factors alone justified a preference for Arizona residents in access to Arizona's game.Id. The Court concluded, however, that since elk and deer are scarce and are products of Arizona's conservation efforts, these are "additional factors" that support the legitimacy of the state's interest in ensuring the conservation of that game population and maintaining its availability for recreational hunting by Arizona's citizens. Id. at 12218.
In light of the foregoing, the court must determine whether Defendants can establish that the 10% nonresident caps are the least discriminatory alternative to adequately serve Arizona's legitimate purposes. Defendants own version of the applicable standard is the basis for their argument that the Rule is constitutional.
For example, Plaintiffs argue that an increase in the allocation of nonresident tags (such as 20%) for capped hunts, or a removal of the caps altogether, presents a less discriminatory alternative to the Rule. It is Defendants burden to rebut this alternative — and this court's responsibility to apply strict scrutiny to the Rule. In light of their perceived standard, Defendants respond to a proposed increase in the allocation of nonresident tags, stating:
Any increase in nonresident permits over that allowed by the current regulation, no matter how small, results a lower percentage of residents that can hunt than under the current regulation. Therefore, the alternative does not serve Arizona's legitimate purpose of maintaining resident recreational hunting opportunities as well as the current regulation.
Response (doc. 167) at 9. This court has rejected the argument that Arizona's overtly discriminatory rule is the benchmark against which alternatives are to be weighed.
Defendants burden is to demonstrate that an increase in the allocation of nonresident permits does not adequately serve Arizona's legitimate interests. They have failed to carry that burden — or even engage it for that matter. Again applying their own perceived standard to this case, Defendants also argue that increasing the nonresident allocation, say from 10% to 20% of the total permits, is still a "discriminatory" alternative, and that only "nondiscriminatory" alternatives may be considered. The court has rejected this argument by demonstrating that, as commanded by the Ninth Circuit's mandate, Defendants must show that Arizona has "no other means" to advance its legitimate interests. Supra.
On the other hand, the Ninth Circuit pointed out that:
It is hardly clear that Arizonans need preferences in order to enjoy hunting in their state. The [Concise Explanatory Statement] accompanying the promulgation of [the Rule] explained that, without the cap or bonus point system, "most big game hunts . . . experience nonresident pressure below 5%," and that Arizonans received over 80% of the hunting tags issued for nearly every hunt for bull elk statewide and for antlered deer north of the Colorado River. A factfinder reasonably could conclude from this evidence that Arizona's regulation was designed to respond to political pressure from the Department's constituency, not to any actual need of Arizonans for more hunting opportunities.
Mandate (doc. 133) at 12222. This court is bound by that conclusion and Defendants have not rebutted it.
Plaintiffs argue that the 10% nonresident cap is certainly not the only alternative available to Arizona, and that the only purpose served by the cap is to please Arizona residents (as surmised by the Ninth Circuit). They argue that any increase in the nonresident allocation will do nothing more than upset some speculative, unspecified number of Arizona residents. In support, they cite the testimony of Stephen K. Ferrell, the Deputy Director of the Arizona Game and Fish Department (the individual designated in this litigation to testify for the Director of the Department) from his 1999 deposition, which states:
Q. So what you're saying is this cap relates to the social issues arising from the feelings of Arizona residents primarily, is that correct?
A. Primarily, yes.
. . .
Q. What would be the impact from the social perspective, if you can say, based upon your knowledge and experience, if the quota on non-resident access to these permit tags had been set at 20 percent rather than 10 percent?
A. I don't know. That would be speculative. I'm not sure I could tell you what that impact would be.
Q. But a different, since the quota itself doesn't have any biological basis, it wouldn't make a different at least on a biological basis whether it was set at 10 percent or 20 percent for non-residents, correct?
A. Correct.
Q. It's basically going to relate to the feelings of Arizona hunters?
A. Yes. . . .
. . .
Q. . . . Going back to the quota and this social aspect or social as you call it policy or reason for the quota, do you have any opinion as to what would occur if, for instance, the quota were raised to 20 percent? Based upon all your knowledge and your 21 years of experience, do you have an opinion on that?
A. My opinion would be that our resident hunters would object to having a greater portion of that pool made available to non-residents.
Q. Okay. Any other results other than some unhappy residents?
A. No.
PSOF (doc. 163) Ex. A, at 12-14, 43. This testimony, provided by the designated official for the very agency that promulgated the Rule, admits that the only negative impact to Arizona from an increase in the allocation of nonresident tags would be to make Arizona residents unhappy. Indeed, when asked about the possible impact of a complete removal of the caps, Ferrell testified:
Q. . . . What if the quota were removed altogether? Do you have any opinion as to what consequences there would be of any nature whatsoever?
A. Just social.
Q. Just social meaning some unhappy residents?
A. That's my opinion.
Id. at p. 44. This testimony is also supported by Vashti "Tice" Supplee, the Department's Game Branch Chief, who testified that the quotas were promulgated to produce a "happiness factor" on the part of Arizona's hunters. PSOF (doc. 163) Ex. D, at 37.
Plaintiffs continue by arguing that without the caps in place at all, Defendants' own calculations indicate that nonresidents would have received only an additional 2.95% of tags for bull elk throughout the state, and an additional 4.85% of the total tags for antlered deer north of the Colorado River (the hunts governed by the cap). Motion (doc. 162) at 8. These figures were produced by Defendants in response to Plaintiffs Third Set of Interrogatories. See PSOF (doc. 163) Ex. I, Table A.
Plaintiffs further argue that the foregoing figures relate solely to the capped hunts, which constitute a relatively smaller percentage of the total recreational hunting opportunities available in Arizona. Motion (doc. 162) at 9. Plaintiffs note that Defendants have produced evidence indicating that Arizona issued between approximately 110,000 and 135,000 hunting permits annually for the years 1993-2002. PSOF (doc. 163) ¶ 28. For this same time period, Arizona issued between approximately 9,700 and 12,300 permits for capped hunts. PSOF (doc. 163) Ex. E, Table 2.
Considering the foregoing numbers, the court of course recognizes that the nonresident caps apply to the more desirable or "premium" hunts. Nevertheless, Brian Wakeling, the Department's Big Game Management Supervisor testified that in 1999, in the premium hunts subject to the Rule, without the caps in place nonresidents would have drawn "only" (to use his word) an additional 86 tags for deer, and an additional 164 tags for bull elk. PSOF (doc. 163) Ex. E, at 55. Wakeling indicated that he did not believe that the nonresident allocation without the caps in 1999 would have been of any "large magnitude." Id.
In light of the foregoing evidence, it is apparent that Defendants have failed to sustain their burden to demonstrate that a less discriminatory alternative would adequately serve Arizona's interest in preserving resident hunting opportunities. While they produce evidence that a small additional percentage of nonresidents would have been drawn for the capped hunts' tags during the period since the Rule has been in place, they have not demonstrated that this evidence (or any other evidence for that matter) establishes that the 10% cap is necessary to achieve Arizona's interests. In other words, Defendants have not demonstrated that Arizona could not adequately achieve its goals of preserving resident hunting opportunities (or conserving game populations for that matter) if these relatively small additional percentages of nonresidents were allocated tags for the premium hunts at issue. The evidence demonstrates the contrary.
Indeed, the evidence indicates that the only detrimental effect to Arizona will be — not to its ability to adequately preserve hunting opportunities for its citizenry — but only to upset some unspecified number of residents who favor the current system currently in place. Defendants attempt to defend the Rule by arguing that they need to discriminate in favor of residents to generate support for wildlife management programs, which in turn will lead to a decline in wildlife populations. They argue:
Without continued resident support it is likely that, over time, the Department's wildlife management programs will become less effective, leading to a decline in wildlife populations that are enjoyed by all of Arizona's residents. If the cap is removed, or even raised to 11%, the Department's Deputy Director [Mr. Ferrell] believes that support for its wildlife management programs will begin to erode. The Department's constituency will begin to feel ignored or unappreciated and will begin to decrease its participation in activities that support the Department's successful wildlife management programs.
Response (doc. 167) at 14 (citations omitted).
In support of the foregoing assertions, Defendants cite to the 2003 deposition of Mr. Ferrell, which explains that the "North American Model" of wildlife management requires the cooperation of a state's residents. DSOF (doc. 168) Ex. C, at 68-69. He testified that the linkage between resident participation in hunting, and wildlife conservation, could not be overstated, and that diminishing resident recreational hunting opportunities could lead to disenfranchising residents. Id. at 68-69. It is important for a state's residents to feel a sense of "ownership" in its wildlife programs since this feeling leads to volunteerism in the state's wildlife conservation programs. Id. This resident support provides the "backbone" of the North American Model's wildlife management program.
First, while this court does not take any issue whatsoever with the conclusion that resident support for wildlife management programs is important, and perhaps even vital, to successful conservation efforts, the foregoing testimony does not explain why a 10% cap, as opposed to some other (less discriminatory) cap, is necessary to achieve the state's interests in conserving hunting opportunities.
Ferrell's testimony, while certainly emanating from an expert in the field, does little to aid this court in the specific task of identifying whether 10% is the only cap that will work to achieve Arizona's interests. He could only opine that some residents would be upset by a higher nonresident allocation — leading to the speculation that those residents might withdraw support for wildlife programs. DSOF (doc. 168) Ex. C, at 66. He further testified:
Q. . . . Can you tell me what percentage of Arizona resident hunters would be unhappy if the non-resident quotas were removed?
A. I can't tell you that.
Q. Can you tell me how long they would be unhappy, or would they ever get over it?
A. Some would never get over it.
Q. How many?
A. Don't know.
Q. No idea?
A. No idea.
Plaintiff's Responsive Statement of Facts ("PRSOF") (doc. 173) Ex. N, at 45-46. This kind of speculative testimony is not sufficient for the state to carry its burden of withstanding strict scrutiny of its Rule.
In addition to Defendants' failure to carry its burden by emphasizing the "North American Model" argument, the Ninth Circuit has specifically rejected this argument as a basis for the Rule. The mandate states:
Arizona cannot meet its burden of showing that its cap on nonresident hunters is narrowly tailored to its conservation interest 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 for the government's programs on the adoption of such discrimination.
Mandate (doc. 133) at 12220 (emphasis supplied). This holding specifically rejects the North American Model argument as a justification for the Rule. In explaining the basis for the foregoing conclusion, the Ninth Circuit stated:
The Commerce Clause . . . was included in the Constitution to prevent state governments from imposing burdens on unrepresented out-of-state interests merely to assuage the political will of the state's represented citizens. . . . Allowing the intensity of the political will in a state to justify discrimination against nonresidents would radically undermine the representation-reinforcing policies underlying the dormant Commerce Clause doctrine.
Mandate (doc. 133) at 12221.
Finally, while the court certainly accepts the conclusion that volunteer support for conservation programs is a highly desirable state interest, it concludes that Arizona could more narrowly tailor the benefit of providing recreational hunting opportunities to encourage such support. Plaintiffs posit that, while Arizona presently has a nondiscriminatory bonus point system in place (which awards a preference point to a hunter for each year s/he purchases a license, but is not drawn for a tag), an alternative bonus point system could be used to encourage resident participation. Motion (doc. 162) at 11-13.
Under the present Rule, a hunter need only reside in Arizona for six months to receive the benefit of the caps; indeed, involvement in or support for conservation programs are not required or even encouraged. Instead of broadly favoring all Arizona residents (while discriminating against nonresidents) under the notion that such discrimination is necessary to generate support for conservation efforts, some reward (such as bonus points) could be given directly to those individuals who actually volunteer in Arizona's wildlife conservation efforts. Response (doc. 162) at 13. While Arizonans who live in the state are more likely to accumulate such points, nonresidents could travel to the state or otherwise participate in volunteer projects. Id. Big Game Management Supervisor Brian Wakeling admitted in his deposition that he did not see any reason why such a program (although it would require some crafting and rules) "couldn't be done right now." PRSOF (doc. 173) Ex. Q, p. 91.
This court hastens to emphasize that it merely reviews the foregoing alternative as a demonstration that a less discriminatory alternative is available to the Rule, even if generating support for conservation programs (and thus maintaining resident hunting opportunities), through increasing resident volunteerism, is the primary goal Arizona seeks to advance through the Rule. The Rule must be struck down as a violation of the United States Constitution. If Arizona seeks to craft a new rule, now with the understanding that any such rule must comport with the Commerce Clause, (as well as the Ninth Circuit's decision, and this court's rulings based upon it), its hands are not tied to any of the alternatives posed by Plaintiffs in this litigation, nor any alternatives discussed in this order. Having set forth the applicable standard, Arizona has complete freedom to craft a rule which adequately serves its legitimate interests so long as it does not violate the Constitution.
E. Conclusion
Rule 12-4-114.E of the Arizona Administrative Code is unconstitutional. Plaintiffs' Third Amended Complaint (doc. 55) prays that this court (1) declare the Rule unconstitutional and illegal, and declare the null and void; (2) enjoin Defendants' from acting or directing others to act to enforce the Rule; (3) to award Plaintiffs their damages and losses, plus pre- and post-judgment interest; and (4) to award Plaintiffs their costs and attorneys fees pursuant to 42 U.S.C. § 1988; (5) together with any other and further relief to which Plaintiffs might be entitled.
With regard to the first two requests, this court agrees that permanent injunctive relief is necessary to restrain Defendants from acting to enforce the Rule. With regard to Plaintiffs' requests for damages, costs and fees, the parties' present motions for summary judgment do not address those issues. Indeed, in their September 5, 2003 letter to the court, wherein the parties stipulate to submitting this case on cross-motions for summary judgment, they state:
Counsel do not believe the case involves any material credibility disputes as to key facts. We do not believe a trial is necessary to resolve the remaining issues directed to this Court by the Ninth Circuit's remand.
Letter (dated September 5, 2003). The court assumes that since Plaintiffs have not addressed their request for damages in the present motion that they no longer seek such relief. If this assumption is incorrect, Plaintiffs shall notify the court within fifteen (15) days of the date of this order. Absent such a request a final judgment will be entered. To the extent Plaintiffs seek fees and costs, those sums may be sought under Local Rule 2.20.
IT IS ORDERED that Plaintiffs' motion for summary judgment (doc. 162) is GRANTED and Defendants' motion for summary judgment (doc. 168) is DENIED.
IT IS FURTHER ORDERED that Rule 12-4-114(E) of the Arizona Administrative Code is unconstitutional, and therefore, null and void.
IT IS FINALLY ORDERED that Defendants are permanently enjoined from taking any action to enforce Rule 12-4-114(E) of the Arizona Administrative Code.