The Arizona Game and Fish Commission voted unanimously on October 2, 2002, to appeal a decision by the Ninth Circuit Court of Appeals that jeopardizes Arizona's cap on nonresident tags for bull elk and deer north of the Kaibab.

The Arizona Game and Fish Commission was sued by a professional hunting guide service in New Mexico, United States Outfitter Inc., which claimed that the 10-percent cap on nonresidents violates the Commerce, Privileges and Immunities and Equal Protection Clauses of the U.S. Constitution and requested "a declaration of invalidity as well as damages."

The federal district court granted the Game and Fish Department's cross-motion for summary judgment dismissing the Commerce Clause claim as a matter of law. The guides, Lawrence Montoya, Filberto Valerio and Carole Jean Taulman, appealed the district court's decision.

The Ninth Circuit Court of Appeals on August 20 overturned the lower court decision and ruled that Arizona's 10-percent nonresident cap "substantially affects" commerce such that the dormant Commerce Clause applies to the regulation. "We further hold that the regulation discriminates against interstate commerce, but that Arizona has legitimate interests in conserving its population of game and maintaining recreational opportunities for its citizens," the court ruled.

The Ninth Circuit Court of Appeals remanded the case back to the lower court for "further proceedings" to determine whether Arizona "has met its burden of showing that these interests could not be served adequately by reasonable nondiscriminatory alternatives."

The federal court opinion points out that Arizona is home to what is considered by many hunters to be some of the best deer and elk hunting in the world, exemplified by the world record animals harvested from its lands. The area north of the Colorado River known as the Kaibab Plateau and the Arizona Strip are particularly scenic areas known internationally for their trophy-class mule deer.

"The quality of the hunting in Arizona is in large part a result of the conservation efforts supported by Arizona citizens and administered by the Arizona Game and Fish Department," the court files state.

For many years, Arizona distributed the limited hunt tags for antlered deer and bull elk through a lottery (draw) without regard to the residence of the applicant. In the late 1980s, however, the Game and Fish began to receive vocal complaints by Arizona hunters objecting to competition with nonresidents. Many felt that nonresidents were getting more than their fair share of the hunt opportunities, especially for premium hunts.

"In early 1990, the department conducted a poll of resident big game hunters and found that nearly 75 percent favored restricting the number of hunting tags issued to nonresidents, many expressing the opinion that nonresidents should be excluded from hunting in Arizona entirely," the court opinion states.

To better meet the overwhelming desires of the resident hunting public, the Game and Fish Commission in 1991 amended Rule 12-4-114 of the Arizona Administrative Code to place a 10-percent cap on the number of tags that could be awarded to nonresidents for the hunting of bull elk throughout the state and for antlered deer in the area north of the Colorado River.

The department explained that the continued management of Arizona's big game "is dependant on the continued support of Arizona residents" and that Arizona residents should be afforded the opportunity "to hunt Arizona's best."

Each plaintiff in the case is a professional hunter and guide residing in New Mexico who applies for hunting tags around the country in order to "obtain the meat of the animals, their hide, their ivories, and especially their head and rack of antlers to profit from the sale and use of the non-edible parts," the court filings show. The plaintiffs argued that profit seeking is their sole purpose in hunting these animals in Arizona, and that they do not hunt for recreational enjoyment.