The Wyoming Outfitters Association v. Corbett

Full title: THE WYOMING OUTFITTERS ASSOCIATION (W.O.A., INC.) d/b/a THE WYOMING…

Court: United States District Court, D. Wyoming

Date published: Jul 5, 2000

Case No. 98-CV-1027-J (D. Wyo. Jul. 5, 2000)

Opinion

Case No. 98-CV-1027-J

July 5, 2000

JUDGMENT

JOHNSON, Judge

The Court having entered its Order on Pending Motions, granting Defendants' Motion for Summary Judgment and Motion to Dismiss and denying Plaintiffs' Motion for Summary Judgment, it is therefore

ORDERED, ADJUDGED AND DECREED that Plaintiffs recover nothing of Defendants and that all parties bear their own costs and attorneys' fees.

Dated this 5th day of July, 2000.

ORDER ON PENDING MOTIONS

This matter came before the court on April 14, 1999, for hearing on pending dispositive motions.

I Introduction

Plaintiffs challenge Wyoming's hunting licensing system under the Equal Protection and Commerce Clauses of the United States Constitution. Plaintiffs are five nonresident hunters, four Wyoming outfitters (the Outfitters) and The Wyoming Outfitters Guides Association (Outfitters Association), a non-profit organization that represents some of Wyoming's outfitting industry. Plaintiffs bring this action against defendants who are the Wyoming Game and Fish Commission's (the "Commission's") President (Hal Corbett), Vice President (Les Henderson), appointed Commissioners (Tracy Hunt, L. Gary Lundvall, J. Michael Powers, Mike Hunzie and Dave Steger), and the Director of the Wyoming Department of Game and Fish (the "Department"), John Baughman.

Plaintiffs contend that the restrictions on the percentage of licenses that can be issued to nonresident hunters and a nonrefundable $10 application fee for nonresident hunting licenses are discriminatory practices that violate the dormant Commerce Clause by excessively burdening interstate commerce. Plaintiffs also contend that these provisions violate the Equal Protection Clause of the United States Constitution because they discriminate against the class of nonresident hunters.

II Procedural Setting

Before the court are the following motions: (1) Defendants' Motion to Dismiss plaintiffs' Commerce Clause claim for lack of standing; (2) Defendants' Motion for Summary Judgment on the Commerce and Equal Protection Clause claims; and (3) Plaintiffs' Motion for Summary Judgment on their Commerce and Equal Protection Clause claims that Wyoming's game regulations unconstitutionally impinge on rights of nonresident hunters and resident outfitters that provide services to them. For the reasons set forth in this order, the court finds that (a) Outfitters and Outfitters Association lack standing to challenge Wyoming's licensing allocation system under either the Equal Protection Clause or the dormant Commerce Clause of the United States Constitution, and (b) plaintiffs claims fail because defendants' licensing system is rationally related to legitimate government purposes associated with wildlife management. Accordingly, the court grants the defendants' Motion to Dismiss and Motion for Summary Judgment and denies plaintiffs' Motion for Summary Judgment,

For purposes of ruling on a motion to dismiss for lack of standing, the court must accept as true all material allegations of the complaint and must construe the complaint in favor of the complaining party. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Further, we must presume that "'general allegations embrace those specific facts that are necessary to support the claim.'" State of Utah v. Babbitt, 137 F.3d 1193, 1204 (10th Cir. 1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992) (quoting Lujan v. National Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189 (1990)). Therefore, at the pleading stage, "general factual allegations of injury resulting from the defendant's conduct may suffice." Id.

The standard for the grant or denial of summary judgment is well known:

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment."

Jurasek v. Utah State Hosp., 158 F.3d 506, 510 (10th Cir. 1998) (quoting Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995)). A respondent to a summary judgment motion cannot rest on the "mere allegations" in the pleadings but must "set forth" by affidavit or other evidence "specific facts," which, for purposes of the summary judgment motion, will be taken to be true. State of Utah v. Babbitt, 137 F.3d 1193, 1204 (10th Cir. 1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992) (quoting Lujan v. National Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189 (1990)); Fed.R.Civ.P. 56(e). The parties agree that the dispositive facts are not in dispute.

III Undisputed Facts

In general, the undisputed facts are those setting forth the method by which the Department issues licenses to resident and nonresident hunters, the success rate of nonresident hunters in the initial drawing and the special fee drawing for nonresidents, the expenses associated with running an outfitting business in Wyoming, the success of legislative lobbying efforts by the outfitting industry in Wyoming, and the preference of resident hunters not to change the licensing system by allocating additional licenses to nonresident hunters.

The following facts are undisputed, except where noted. By statute, the Wyoming Legislature (the "Legislature") delegated its rule-making authority to the seven-member Commission. Wyo. Stat. §§ 23-1-201, 23-1-302(a), 23-1-303 (1999). Game and Fish Commissioners serve six-year terms and are compensated at the rate of $20 a day plus travel expenses. Wyo. Stat. §§ 23-1-201, 23-1-203 (1999). Among other duties, the Commission promulgates regulations for issuance of licenses. The Legislature retains the power to set the amount of the fees for hunting and fishing licenses, although the Commission may make recommendations. See Wyo. Stat. § 23-2-101(j) (1999) (setting fees for hunting licenses). The Commission has the power to limit the number of resident or nonresident big game or trophy game animal licenses. See Wyo. Stat. § 23-1-703(a) (1999).¹ License fees from nonresidents account for at least 75% percent of the Commission's license revenues, which in turn account for about 75% of the Commission's budget. Gabriele Dep. at 71 (Larry Gabriele is the Commission's chief fiscal officer). The Department is under the direction and supervision of the Commission. Wyo. Stat. § 23-1-401(b) (1999). Its director is appointed by the governor, Wyo. Stat. § 23-1-402(a) (1999) and its chief fiscal officer is appointed by the Commission, Wyo. Stat. § 23-1-403 (1999). The division chiefs of the Department provide the technical knowledge and experience necessary for administration of the state's game and fish resources. See, Wyo. Stat. § 23-1-404(b) (1999).

1 Big game animals include deer and elk. Wyo. Stat. § 23-1-101 (a)(i) (1999); see also Wyo. Stat. § 23-1-101(a)(xii) (1999) (trophy game animal means black bear, grizzly bear or mountain lion).

Wyoming law prohibits the commercial sale of meat from wild game, a prohibition that applies equally to residents and nonresidents. Wyo. Stat. § 23-3-302 (1999). See also Wyo. Stat. § 23-3-301 (1999) (prohibiting importation or sale of live big game animals). Under Wyoming law, hunting licenses are nontransferable, a prohibition that applies equally to resident and nonresident licenses. Wyo. Game and Fish Commission Regulations (Game Fish Regs.) Ch. 44, § 23 (1998) (attached to Gabriele 2nd Aff.²).

2 There are two Gabriele affidavits. For clarity, the court will refer to the affidavit filed on October 9, 1998, in support of defendants' Motion for Summary Judgment, as the Gabriele 1st Affidavit (Gabriele 1st Aff.). The affidavit filed February 22, 1999, in support of defendants' Opposition to Plaintiffs' Motion for Summary Judgment will be referred to as the Gabriele 2nd Affidavit (Gabriele 2nd Aff.).

The availability and price of and quota (i.e., maximum number of licenses issued) for various big game licenses are different for residents and nonresidents under Wyoming's statutes and regulations. However, plaintiffs limit their challenge to the regulations involving deer and elk licenses³ and to the $10 nonrefundable application fee for nonresident licenses.⁴

3 Plaintiffs may have excluded antelope licenses from this lawsuit because nonresidents generally receive 54% (and in some limited quota areas, up to 90%) of all Wyoming antelope hunting licenses. Rowe Aff. at ¶¶ 6 and 9. All Wyoming antelope hunting licenses are for limited quota areas. Id. at ¶ 7. "Limited quota areas" are those hunt areas in which hunting is permitted by a limited quota license for that area and in which there is a maximum total number of animals that may be taken. "Limited quota licenses" are defined infra at pp. 6-7.

4 The price for a nonresident elk license is $400. Wyo. Stat. § 23-2-101(j)(xviii) (1999). The reduced price for a nonresident cow/calf elk license is $200. 1999 Nonresident Booklet at 37. The price for a resident elk license is $35. Wyo. Stat. § 23-2-101 (j)(xvii) (1999). The price for a nonresident deer license is $185. Wyo. Stat. § 23-2-101(j)(xiv) (1999). The reduced price for a nonresident doe/fawn deer license is $80. 1999 Nonresident Booklet at 37. The price for a resident deer license is $22 Wyo. Stat. § 23-2-101(j)(xiii) (1999). Plaintiffs do not challenge the price differential between the costs of resident and nonresident elk and deer licenses. At the hearing plaintiffs' counsel represented that plaintiffs support the higher prices for nonresident hunting licenses.

In Wyoming a "general" license is a big game or trophy game animal license valid (i.e., legally allowing the named person to hunt) in any hunt area in which the total number of licenses is not limited. Game Fish Regs. Ch. 44, § 3(h). General licenses are limited by the species, sex, age class, and harvest limitations that are in effect for each hunt area.⁵ Id. A "limited quota" license means there is a limit to the total number of licenses issued, and the license allows hunting only in one or more specified hunt areas or portions of a hunt area. Game Fish Regs. Ch. 44, § 3(t). Like general licenses, limited quota licenses are limited to the specified big game or trophy game animal species, sex, age class, and harvest season dates. Id. A "region general deer license" is a general license granted to nonresident deer hunters. Game Fish Regs. Ch. 44, § 3(bb). These are limited (a) in total number, (b) to one of the twelve lettered groups of hunting areas ("regions"), and (c) within a region, to those hunting areas that the Commission has designated as "general." Id. Residents with a general deer license may hunt in any hunt area in any region that has been designated by the Commission as "general." Harju 1st Aff. at ¶ 11;⁶ W.O.A. Aff. at 35; Gabriele Dep. at 20; compare 1999 Nonresident Booklet at 23 with 1999 Resident Booklet at 23.

5 Elk are divided into categories of antlered, antlerless, cow, calf, or spike elk. Wyoming 1998 Elk Hunting Regulations ("1998 Elk Regs.") Ch. 2, §§ 2(a), (b), (g), (h), and (x); 1999 Wyoming Nonresident Hunting Information and Applications Booklet ("1999 Nonresident Booklet") §§ 14(a), (b), (f), (g), and (pp); 1999 Wyoming Resident Hunting Information and Applications Booklet ("1999 Resident Booklet") §§ 14(a), (b), (f), (g), and (pp). "Antlered" means an animal having visible antler growth plainly protruding from the skull; where a minimum number of antler points is specified, points are counted on the side with the greater number of points. 1998 Elk Regs., Ch. 2, § 2(a); 1999 Nonresident Booklet § 14(a); 1999 Resident Booklet § 14(a). 'Antlerless' means an animal having no antler growth plainly protruding from the skull and includes females and young-of-the-year that have no visible antlers. 1998 Elk Regs., Ch. 2, § 2(b); 1999 Nonresident Booklet § 14(b); 1999 Resident Booklet § 14(b). "Cow" means an adult female elk. 1998 Elk Regs., Ch. 2, § 2(h); 1999 Nonresident Booklet § 14(g); 1999 Resident Booklet § 14(g). "Calf" means young-of-the-year elk. 1998 Elk Regs., Ch. 2, § 2(g); 1999 Nonresident Booklet § 14(f); 1999 Resident Booklet § 14(f). "Spike elk" means and elk with antlers consisting of a single unbranched beam on both sides. 1998 Elk Regs., Ch. 2, § 2(x); 1999 Nonresident Booklet § 14(pp); 1999 Resident Booklet § 14(pp).

6 Dr. Harry Harju is Assistant Chief of the Wildlife Division and former Supervisor of Biological Services for the Commission. There are two Harju Affidavits. For clarity, the court will refer to the affidavit filed on October 9, 1998, in support of defendants' Motion for Summary Judgment as the Harju 1st Affidavit (Harju 1st Aff.). The affidavit filed February 22, 1999, in support of defendants' Opposition to Plaintiffs Motion for Summary Judgment will be referred to as the Harju 2nd Affidavit (Harju 2nd Aff.).

The state is divided into 115 geographically discrete (i.e., non-overlapping) herd management areas for purposes of elk hunting licensing. 1998 Elk Regs. § 6; 1999 Nonresident Booklet at 15-17; 1999 Resident Booklet at 15-17. Three of the elk hunt areas were closed in 1999. 1999 Nonresident Booklet at 15-17; 1999 Resident Booklet at 15-17. Of the 115 elk hunt areas approximately 51 (44%) are designated as "general" areas during certain hunting seasons. Id. These same hunt areas can be limited quota areas or have other restrictions (e.g., weapons type, sex, age class), during other specified dates. 1998 Elk Regs. § 3; 1999 Nonresident Booklet at 15-17; 1999 Resident Booklet at 15-17. Antlered animals may be harvested in approximately 50 of the general elk hunting areas. 1999 Nonresident Booklet at 15-17; 1999 Resident Booklet at 15-17. A general elk license allows the hunter to hunt in a general area regardless of the license holder's residency. Gabriele Dep. at 18.

Approximately 29 of the elk areas are "hunt areas with difficult public access." 1999 Nonresident Booklet at 15-17; 1999 Resident Booklet at 15-17. These are areas that have "predominantly private lands or that have inaccessible or limited access to public lands." 1999 Nonresident Booklet at 5; 1999 Resident Booklet at 5.⁷ Approximately one-half of Wyoming is private land. Id. Increasingly, private landowners in Wyoming, some of whom are outfitters, are restricting free public access to their lands for hunting purposes although opportunity for such access varies geographically. See Lawson Dep. at 28-29 (residents and nonresidents perceive that access is lost to lands now leased by outfitters); Baughman Dep. at 43 (main grievance that most resident hunters have with outfitters is the leasing of ranches where residents used to hunt); Hunzie Dep. at 40-41 (access to private lands is more available in western Wyoming but in other areas outfitters have private lands "locked up" or leased).

7 The following information and warning appear at page 5 of the 1999 Nonresident Booklet and of the 1999 Resident Booklet: "Some of the public lands can only be reached by private access routes. To cross private lands, permission must be obtained from landowners. Landowners have the right to deny or allow access to their lands or charge a fee for access. Written permission or other proof of permission for access is required before one can hunt on private land."

Wyoming is divided into approximately 156 herd areas for deer hunting, the majority of which (approximately 130) are general areas. Wyoming 1998 Deer Hunting Regulations ("1998 Deer Regs.") § 6; 1999 Nonresident Booklet at 22-23; 1999 Resident Booklet at 22-23. One of the areas was closed to hunting in 1999. 1999 Nonresident Booklet at 22-23; 1999 Resident Booklet at 22-23. The numbered deer hunt areas are clustered together into twelve lettered "regions." cf. Approximately 74 of the deer areas are "hunt areas with difficult public access." Id. The same issues arise as for similarly described elk areas, supra and at note 7.

Of the general hunt areas approximately 23 allow "any deer." Wyoming 1998 Deer Hunting Regulations ("1998 Deer Regs.") § 3. Other general and limited quota areas specify antlered, antlerless, age class, harvest limit, or species of deer.⁸ Like the elk general areas, many of the deer general areas can be limited quota in a later season, or contain other restrictions, e.g., weapons type, sex, age class, species (mule deer or white-tailed deer) or geography. 1998 Deer Regs. § 3.

8 Deer are divided into categories of antlered, antlerless, doe, or fawn. 1998 Deer Regs. Ch. 2, §§ 2(a), (b), (i), and (k); 1999 Nonresident Booklet §§ 14(a), (b), (h), and (j); 1999 Resident Booklet §§ 14(a), (b), (h), and (j). "Antlered" and "antlerless have the same definition as for elk. See, infra. note 5 and 1998 Deer Regs., Ch. 2, §§ 2(a) and 2(b). "Doe" means an adult female deer. 1998 Deer Regs., Ch. 2, § 2(i); 1999 Nonresident Booklet § 14(h); 1999 Resident Booklet § 14(h). "Fawn" means young-of-the-year deer. 1998 Deer Regs., Ch. 2, § 2(i); 1999 Nonresident Booklet § 14(h); 1999 Resident Booklet § 14(h).

Nonresidents must draw for all elk licenses, and there is a cap of 7,250 on the number of elk licenses available to nonresidents in the initial competitive drawing. Game Fish Regs. Ch. 44, § 5(iv). The initial competitive drawing for nonresidents is held in late February before the Department has been able to verify herd numbers. Gabriele 1st Aff. at ¶ 12. Wyoming's elk herd numbers were above population objectives in past years. 1997 and 1998 Annual Reports of the Department (Attachments 20 and 21 to W.O.A. Aff.). Despite increased numbers of elk, the 7,250 cap has not been increased since 1986. Gilroy Decl. at ¶ 23. (Paul Gilroy has been a Wyoming guide or outfitter since 1965 and is Vice President of the Outfitters Association. Gilroy Decl. at ¶ 1; W.O.A. Aff. at ¶ 1). Neither plaintiffs nor defendants have expressed an opinion about whether being above management objectives is good or bad for herd management purposes or whether that status should necessarily prompt a change in the cap on nonresident hunter licenses in the initial drawing.

There are approximately 20,000 nonresidents who apply for the 7,250 nonresident elk licenses offered in the initial draw.⁹ Gabriele 1st Aff. at ¶ 15. Some of the 7,250 licenses available to nonresidents are for antlerless elk, the majority of which are not taken by the nonresidents. Id. at ¶ 16. The Commission converts some of these un-taken antlerless elk licenses to general licenses for male animals in order to allow nonresidents to take the total 7,250 offered in the initial draw. Id. This conversion results in a change in the Departments management numbers, id., because it results in more bull animals being taken, Harju 2nd Aff. at ¶ 11(H).

9 Defendants point out that setting the initial nonresident draw in late February, before verified elk numbers are available, is an accommodation the Department has specifically made for outfitters because outfitters need the draw results early enough to allow nonresident hunters to book hunts timely. Gabriele 1st Aff. at ¶ 12. Generally, outfitters will attend sports shows and market their services during the winter months before the next fall's hunting season (September — November). Gilroy Aff. at ¶¶ 38 and 39; Trefren Aff. at ¶ 13, Wade Aff. at ¶ 14, Winter Aff. at ¶ 7 (length of hunting season). With the elk draw for nonresidents on February 20, outfitters can discover relatively early whether or not potential clients have drawn a license. Gilroy Aff. at ¶ 38. If an insufficient number of potential clients were successful in the drawing, outfitters advertise to people who have drawn licenses. Id. Information about successful applicants for the 2000 elk drawing is currently available online at http://gf.state.wy.us.

In practice, there is no limit for the number of resident general elk licenses that may be sold compared to the nonresident drawing for general elk licenses. Game Fish Regs. Ch. 44, § 5(iv)(D); Harju 1st Aff. at ¶ 11. Although the number of resident elk general licenses is not limited, the Commission limits the number of animals taken by residents by shortening the length of the season and by placing age and sex limitations on the harvest. Harju 1st Aff. at ¶ 12. Wyoming resident hunters also purchase fewer licenses in years in which the Department announces that the herd numbers are down. Harju 1st Aff. at ¶ 13; Harju 2d Aff. at ¶ 11(F). The number of animals taken by resident hunters is also moderated by the fact that Wyoming's population is very low compared to the rest of the nation. Talbott 1st Decl. at ¶ 5 (only 0.2% of Americans live in Wyoming). As a result, Department biologists believe that residents can continue to purchase unlimited general licenses without negatively impacting herd sizes. Harju 1st Aff. at ¶ 13.

Both residents and nonresidents must draw for limited quota elk licenses. The limited quota elk licenses are split between residents (84%) and nonresidents (16%). Game Fish Regs. Ch. 44, §§ 5(iv), (iv)(B) and (iv)(C); Gabriele 1st Aff. at ¶ 14c.

In limited quota areas, qualified landowners are allowed two licenses. Game Fish Regs. Ch. 44, § 9; Gabriele 1st Aff. at ¶ 14b. These landowner licenses effectively come off the top of the limited quota elk licenses because they are issued without being subject to competitive drawings. Wyo. Stat. § 23-1-302(h) (1999); Game Fish Regs. Ch. 44, §§ 5(iv) and 9(a). Resident landowner licenses for limited quota areas are subtracted from the licenses for residents and nonresident landowner licenses are subtracted from the licenses for nonresidents. Game Fish Regs. Ch. 44, §§ 5(iv), 5(iv)(A) and 9(a); see, Gabriele 1st Aff. at ¶ 14f (an example of the drawing process).

Forty percent of nonresident elk licenses and twenty percent of nonresident deer licenses are available for a special drawing for the nonresident applicant who chooses to pay an additional fee ($200 for elk and $100 for deer). Wyo. Stat. § 23-2-101(f) (1999). The Wyoming Legislature added the higher priced "special licenses" at the outfitters' request, the idea being that a smaller drawing would increase the chances of success for nonresidents. Gilroy Decl. at ¶ 57. The odds of success in the higher-priced special drawing for the nonresident hunter in the last few years are as follows: 1996 — 62.26%; 1997 — 61.41%; 1998 — 56.93%; and, 1999 — 51.84%. Gabriele 2nd AK at ¶ 11; W.O.A. Aff. at ¶ 28.

While the maximum number of licenses for nonresident hunters in the initial drawing is 7,250, nonresidents may also purchase a variable number of "leftover" and "issue-after" licenses. Game Fish Regs. Ch. 44, §§ 5(iii)(E) and 5(iv)(B); Gabriele 1st Aff. at ¶ 14(d), (e) and (f). Leftover licenses are limited quota and nonresident regional general deer licenses issued in the leftover drawing (a computer processed random drawing to issue licenses remaining after the regular drawings). Game Fish Regs. Ch. 44, §§ 3(o) and 3(p). The leftover drawing is open to residents and nonresidents, and they are allocated between residents and nonresidents in the same percentages used in the initial drawing (elk — 84% resident and 16% nonresident; and deer — 80% resident and 20% nonresident). Game Fish Regs. Ch. 44, §§ 5(iii)(deer) and 5(iv)(elk). These leftover licenses are generally not taken by nonresident hunters because they want to kill only trophy male animals. Gabriele Aff. at ¶ 17.

Issue-after licenses are full-price licenses remaining after the leftover draw. 1999 Nonresident Booklet at § 8; 1999 Resident Booklet at § 8. These issue-after licenses are sold as they are processed each day, with no preference to applications that are hand-delivered instead of mailed. Id. Approximately 6,000 antlerless licenses remain after all draws (nonresident landowner, nonresident special, nonresident regular, resident landowner, resident regular, and leftover). Gabriele 1st Aff. at ¶ 17; Game Fish Regs. Ch. 44, §§ 5(iii)(deer) and 5(iv)(elk). If the nonresident hunters took the 6,000 antler-less elk licenses in the leftover draw, their success in drawing a license would increase by approximately 30%. Gabriele 1st Aff. at ¶ 18.

Outfitters contend that the issue-after licenses are undesirable or unmarketable for various reasons, including remote geographic areas, difficult access, too late in the season for planning a hunt, limited to antlerless animals, or in areas where a given outfitter does not have authorization to hunt. Gilroy Decl. at ¶¶ 51 and 53. In addition, some issue-after licenses are dependant upon migrations out of the National Parks. Id. at ¶ 54. Snow conditions control the occurrence of the migrations. Id. Since the snow conditions vary from year to year, the migrations may vary over a two- to four-week period, an unattractive prospect for the nonresident hunter. Id. at ¶ 54.

Residents may purchase their general elk and deer licenses over-the-counter at 230 authorized places in Wyoming during any part of the time period in which resident licenses may be sold. Gabriele 2d Aff. at ¶ 5. The ability to sell licenses over-the-counter is economically important to the license selling agencies. Id. at ¶ 8; O'Gara Aff. at ¶ 8; Sersland Aff. at ¶ 9 (losing ability to sell licenses over-the-counter would be financially detrimental because such sales attract customers to sporting goods stores).

Similar restrictions outlined above for nonresident elk licenses also apply to nonresident deer licenses. The limited quota deer licenses are split between residents (80%) and nonresidents (20%). Game Fish Regs. Ch. 44, §§ 5(iii)(A); Gabriele 1st Aff. at ¶ 14. However the 20% limitation on nonresident deer licenses applies only in the first draw in limited quota hunt areas. Harju 2nd Aff. at ¶ 11 (B). Otherwise, the number of nonresident deer licenses is set according to the deer populations in each lettered region, Id.; 1998 Deer Regs. § 5 (provides quotas of nonresident general deer licenses for the regions). As for elk, there is also a special drawing for the nonresident applicant who pays an additional fee ($100 for deer). Wyo. Stat. § 23-2-101(f) (1999). The nonresident's odds of drawing a special higher-priced deer license were 100% in nine of the lettered regions in 1998. Harju 2nd Aff. at ¶ 11(C). The nonresidents odds were also 100% for drawing a regular nonresident license in five of the lettered regions, and slightly less than 100% in two others. Id. In practice, the amount of deer licenses purchased by nonresidents far exceeds 20% of total Wyoming deer hunting licenses. See infra note 11.

In addition to full-price licenses, resident and nonresident hunters may apply for a limited quota reduced price cow/calf or a limited quota reduced price doe/fawn license. 1999 Nonresident Booklet § 6; 1999 Resident Booklet § 6. These are drawn similarly to other limited quota licenses and allocated in the same proportion (elk — 84% resident and 16% nonresident; and deer — 80% resident and 20% nonresident). Game Fish Regs. Ch. 44, §§ 5(iii)(F) and 5(iv)(C).

Only nonresidents pay a nonrefundable $10 license application fee imposed by statute. Wyo. Stat. § 23-2-101(e) (1999). Defendants point out the Commission recommended a nonrefundable application fee for all licenses, but the Legislature, which sets fees, imposed the nonrefundable fee for only nonresident licenses. Gabriele Dep. at 67-69. There are greater expenses involved in processing nonresident applications, a list of which was provided to the Legislature when it made its decision, Gabriele Dep. at 67-69; Gabriele 1st Aff. at ¶ 20. In addition there are law enforcement problems associated with nonresident hunters. Lawson Aff. at ¶ 10. Up to 25% of the nonrefundable nonresident application fee is set aside to maintain a working balance of $500,000 to compensate owners or lessees of land damaged by game animals and game birds. Wyo. Stat. § 23-2-101(e) (1999).

Although the basic licensing regulations and statutes are not disputed, the parties dispute the effect of the regulations and statutes on the ability of the nonresident hunter to obtain an elk or deer hunting license. Plaintiffs' affidavits in support of their motion allege that in practice nonresidents have a 43% probability of drawing a license in the regular priced initial elk draw. Talbott 2nd Decl. at 2.¹⁰

10 John Talbott is one of plaintiffs' experts. There are two Talbott declarations. For clarity, the court will refer to the declaration filed on February 8, 1999, in support of plaintiffs' Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment, as the Talbott 1st Declaration (Talbott 1st Decl.). The declaration filed February 19, 1999 will be referred to as the Talbott 2nd Declaration (Talbott 2nd Decl.).

Defendants contend that after all limited quota drawings are completed, nonresidents have received 20% of all elk licenses and 46% of all deer licenses, Rowe Aff. at ¶ 6,¹¹ which could be increased by 30% for elk if the nonresident hunter would accept all of the 6,000 antlerless elk licenses that go unsold at the end of each season. Gabriele 1st Aff. at ¶ 18. Defendants' evidence shows, and is not disputed, that for the higher priced special elk license drawing the chance that a nonresident would draw an elk license was as follows: 1996 — 62.26%; 1997 — 61.41%; 1998 — 56.93%; and, 1999 — 51.84%. Gabriele 2d Aff. at ¶ 11.

11 See also Harju 2nd Aff. ¶ 11(B) and (G) (nonresidents received between 32% and 39% of all Wyoming deer hunting licenses between 1985 and 1995, and in 1998, 81% of nonresident deer hunters drew their licenses).

Plaintiffs' affidavits support their contentions that they have difficulty or are unable to operate their outfitting businesses because so few nonresidents are able to obtain licenses. See, Allen Decl. at ¶¶ 8-10 (summer pack trips subsidize the hunting operation; adverse licensing practices make it difficult for business to remain economically viable); Wade Decl. at ¶¶ 13 (not enough booked hunters drew licenses and the business was unable to cover marketing expenses or debt service) and 24 (forced to quit the outfitting business); Winter Decl. at ¶¶ 7 (the number of employees hired depends on the number of booked hunters who draw licenses) and 9 (hunters who have been unsuccessful in the draw have had reservations pending for 3-4 years, and outfitter is obligated to honor his old rates); Trefren Decl. at ¶¶ 17 (difficult to have a successful business due to the uncertainty of the present licensing system and increasing expenses) and 20 (cannot fill camp because nonresident draw is so limited and can no longer afford redundant marketing costs); Gilroy Decl. at ¶ 4 (interstate booking agents are not interested in doing business with Wyoming outfitters because of the uncertainty and expense of the licensing system); Dayton Decl. at ¶ 19 (able to stay in business because wife works elsewhere); Betts Decl. at ¶ 5 (had revenue deficit of nearly $30,000 because was able to book only four hunters). As a result, Outfitters say it is impossible to develop a clientele. Allen Decl. at ¶ 19 (difficult to convince hunters to re-apply after one or more unsuccessful drawing attempts); Wade Decl. at ¶¶ 16-18, 24 (very few repeat customers; many chose to hunt elsewhere, because of the difficulty in drawing a license); Winter Decl. at ¶ 9 (after several unsuccessful years, clients go to other states to hunt); Pollard Decl. at ¶ 4 (rely heavily on return customers; after about three unsuccessful license applications clients choose to hunt in another state); Dayton Decl. at ¶ 17 (has a backlog of 10 nonresident hunters dating back three years who have been unable to obtain licenses for donated hunts). Plaintiffs offer one affidavit from an Outfitter who states that she and her husband have gone out of the outfitting business because of the uncertainty in Wyoming's nonresident license drawing system. Wade Decl. at ¶¶ 14-18 and 22-24. Plaintiffs also offer affidavits of outfitters who have seen or personally know about outfitters who have gone out of business, which they attribute to the license drawing system. Winter Decl. at ¶ 13 (knows of good outfitters who have either gone out of business due to the method of drawing licenses for nonresidents or sold their businesses out of frustration); Dayton Decl. at ¶ 18 (three out of four outfitters operating in Cokeville in 1985 are now out of business); Billings Decl. at ¶ 5A (has seen many hunting outfitters go out of business because of the draw program).

The outfitters' affidavits show that the results of the computerized random draw vary wildly from hunter to hunter and from year to year.¹² Thus, although the probability of any given nonresident obtaining a general elk license in the first draw may be about 43%, it happens that the percentage of a given outfitter's booked hunters' success in the drawing can be much lower or much higher in any year. See infra at note 12.

12 Todd Jones Decl. at ¶ 8 (in 1997, 3 of 33 booked clients drew elk licenses); Artman Decl. at ¶ 2 (nonresident hunter who has unsuccessfully applied for elk license for five years); Trefren Decl. at ¶¶ 18 and 19 (some years only one of booked clients drew; another year, 50% of clients drew); Wade Decl. at ¶ 14-16 (in 1990, 6 of 19 booked elk hunters drew licenses; in 1991, 12 of 18 booked elk hunters and 13 of 24 booked deer hunters drew licenses; in 1992, 2 of 10 booked elk hunters drew licenses); Allen Decl. at ¶ 6 (in 1998, 3 of 13 booked elk hunt clients drew licenses); Schmalz Decl. at ¶ 5 (40 applicants, but not one drew); Gimpel Decl. at ¶ 3 (8 of 54 booked hunters drew tags); Maury Jones Decl. at ¶¶ 9-15 (in 1993, only had 3 elk and 7 deer clients, and a few more after mailings to successful license drawers; in 1996, 46 of 100 booked deer hunters drew licenses, causing crowded conditions bad for business; in 1997, 2 of 27 booked elk hunters and 11 of 88 booked deer hunters drew licenses; in 1998, 7 of 29 booked elk hunters and 50 of 120 booked deer hunters drew licenses, causing overcrowded conditions again).

Plaintiffs' affidavits also show the following: Outfitting is a nation-wide industry. W.O.A. Aff. at ¶ 60. Wyoming's outfitting industry, like that of the neighboring states, caters almost exclusively (95%+) to nonresident hunters. Wade Decl. at ¶¶ 9 and 11 (98% of business was from outside Wyoming); Trefren Decl. at ¶ 23 (nearly all clients are nonresidents); Gilroy Decl. at ¶ 38 (business is totally dependent on nonresident hunters); Dayton Decl. at ¶ 28 (over 30 years of operation, 98% of business has been from nonresidents); Schaeffer Decl. at ¶ 2 (99% of business is derived from nonresident hunters). Outfitters cater to approximately 7% of the total (resident and nonresident) elk hunters in Wyoming. Gilroy Decl. at ¶ 41. Outfitting on a national level requires expensive advertising, mailings and attendance at trade shows in order to attract clients. See, Allen Decl. at ¶¶ 15 (advertising costs an average of $400 per month per magazine) and 16 (sports shows have an average base cost of $1,200 per show); Winter Decl. at ¶ 9 (advertising, sports shows and phone calls involve a great deal of expense); Dayton Decl. at ¶ 7 (advertising became a necessity after the draw system began, and advertising expenses went from a low figure, involving publishing a brochure and mailing it, to $10,000 to $15,000 per year to attend shows in major cities, publish newspaper and other periodical advertisements, pay for professional photography, and provide promotional tours for sports writers). Arranging hunts for nonresidents also involves expenses such as long distance telephone calls and many hours of work. Wade Decl. at ¶ 11; Schaeffer Decl. at ¶ 10; Maury Jones Decl. at ¶ 4. Outfitting makes a substantial contribution to Wyoming's and the nation's economy.¹³ Many outfitters are life-long Wyoming residents. See, Allen Decl. at ¶ 1; Wade Decl. at ¶ 1; Trefren Decl. at ¶ 1; Billings Decl. at ¶ 5. Outfitting is often a family business. See, Allen Decl. at ¶ 4; Wade Decl. at ¶¶ 4-6; Winter Decl. at ¶ 2; Trefren Decl. at ¶ 3.

13 The amount of the contribution to Wyoming's economy is a disputed fact. E.g. O'Gara Aff. at ¶¶ 4 and 7-8 (disputing validity of Outfitters' statistical data and asserting the impact of the nonresident hunters' contributions is far outweighed by that of the resident hunters).

In the early 1970s the Legislature first restricted the number of nonresident licenses, and as a result all nonresident elk licenses began to be allocated pursuant to a draw. W.O.A. Aff. at ¶ 15. The number of outfitters in Wyoming has decreased in recent years. Gilroy Decl. at ¶ 6; W.O.A. Aff. at ¶ 82. The uncertainty of obtaining licenses results in outfitters having trouble obtaining bank loans and in selling their businesses.¹⁴ Interstate booking agents (professional hunting consultants) do little business with Wyoming outfitters because of the uncertainty and expense of dealing with the limited numbers and random draw for nonresident licenses. Gilroy Decl. at ¶ 4; See also Decls. of Angelloz, Beattie, Riley, Selle, and Severinson (professional hunting consultants). Outfitters have difficulty keeping trained guides, cooks, wranglers and packers because the season is short and the clientele uncertain. Gilroy Decl. at ¶ 17; McNiven Decl. at ¶¶ 10-12; Maury Jones Decl. at ¶ 17; Winter Decl. at ¶ 7.

14 Suda Aff. at ¶ 8; Condict Decl. at ¶ 15; Scott Decl. at ¶ 12 (no bank would finance outfitting business when sold); but see Schmalz Decl. at ¶ 5 (operates on borrowed money); Gimpel Decl. at ¶ 3 (has operated on money borrowed from bank).

There has been a moratorium on the number of outfitters on US. Forest Service Land since the 1980s. Gilroy Decl. at ¶ 5. Outfitters who use federal land are under a permit system which requires they maintain usage to keep their permits. W.O.A. Aff. at ¶ 8. If the outfitters' booked hunters are not able to draw licenses, they do not utilize their permits and the permits may be lost or reduced. Suda Decl. at ¶ 10; Linn Decl. at ¶ 18.

Wyoming's outfitting industry is operating at 67% of its capacity. Gilroy Decl. at ¶¶ 6 and 29; W.O.A. Decl. at ¶ 83. A "set aside" of 4,200 elk licenses designated for the exclusive use of nonresident hunters who use the services of an outfitter would allow the industry to operate at full capacity — and that is what plaintiffs seek to accomplish by this lawsuit.¹⁵ Gilroy Decl. at ¶ 31. The Outfitters also want 50% of all nonresident deer licenses set aside for outfitted clients. Gilroy Decl. at ¶ 46.

15 This position assumes the number of outfitters does not change. See Cleveland Dep. at 45.

Such set asides for the exclusive use of outfitters' clients are made in the neighboring states of Idaho¹⁶ and Montana.¹⁷ In Colorado there are no set-asides for outfitted hunts, but there are landowner preferences, which allow qualified landowners to purchase up to 15% of the number of licenses in limited license areas and to transfer those to any person eligible for a big game license.¹⁸ This arrangement would accomplish the same as a set-aside for those landowners who run outfitting services on their land. In Colorado, a nonresident may generally purchase a hunting license over-the-counter the same as a resident; however, the wildlife commission may require a drawing, as it has done for deer, in order to manage herds and reach population objectives.¹⁹

16 Idaho statutes set aside a maximum of twenty-five percent of the nonresident deer and elk licenses for "persons that have entered into an agreement for that year to utilize the services of an outfitter licensed" under Idaho law. Idaho Code § 36-408(c) (1994 Repl.Vol. Supp. 1999).

17 Until March 1, 2006, Montana statutes set aside or "reserve" each year approximately 5,500 Class B-10 licenses, which are nonresident combination big game licenses that include deer and elk, and 2,300 Class B-11 licenses, which are nonresident combination deer licenses, for applicants using the services of a licensed outfitter. Mont. Code. Ann. §§ 87-1-268 (1999) (fees must be set at a market rate intended to sell as close to but not more than an average of 5,500 Class B-10 licenses and 2,300 Class B-11 licenses each year calculated over a 5-year period) and 87-2-511 (1999). Montana also reserves 2000 licenses for persons who intend to hunt with a resident sponsor on land owned by the sponsor. Mont. Code Ann. § 87-2-511 (1999).

18 See, Colo. Rev. Stats. §§ 33-4-101 et seq. (1998 Supp. 1999). Landowner preferences are set forth in Colo. Rev. Stats. § 33-4-103(2) (1998).

19 Colo. Rev. Stats. §§ 33-4-101 and 102 (1998 Supp. 1999) set forth fees, (which are different for residents and nonresident hunters) and licensing agents. In 1999, Colorado updated its regulations in order to reach population objectives for both deer and elk, including a drawing for all deer licenses, residents and nonresidents alike. 2 CCR 406-2, Article VIII (Deer), #244A, Article IX (Elk) and Basis and Purpose (1/13/2000).

The Legislature has responded to the outfitters' requests, on behalf of themselves and nonresident hunters (their main clients), for protective legislation by (a) enacting a law requiring that nonresident hunters have a licensed guide or outfitter to hunt in wilderness areas, Wyo. Stat. § 23-2-401 (1999); Sadler Aff. at ¶ 7, (b) establishing a special license for nonresidents at a higher fee, in order to improve their odds of drawing a license by being in a smaller group, Gilroy Decl. at ¶ 57, see Wyo. Stat. § 23-2-101(f) (1999) (providing for special nonresident drawing), and (c) and moving the regular drawing to earlier in the year to accommodate outfitters' clients. Gabriele 1st Aff. at ¶ 12. However, some of their lobbying efforts have been unsuccessful. Gilroy Decl. at ¶ 56. The governor of Wyoming vetoed a bill that would have created a separate pool of licenses to be set aside only for hunters using outfitters' services. Id. They also lost (by one vote) legislation that would have made the special nonresident drawing (under Wyo. Stat. § 23-2-101(f) (1999)) for only nonresidents using outfitters' services. Gilroy Decl. at ¶ 58.

Plaintiffs contend that it is political pressure from residents that prevents the Legislature from setting up a set-aside system for outfitted nonresident hunters. They support this contention with the depositions of defendant Commissioners and Department employees all of whom testified that they could not justify treating nonresident outfitted hunters more favorably than the nonresident hunters who do not pay for an outfitter's services. See, Baughman Dep. at 19-21 (opposes treating nonresident guided hunters differently from nonresident non-guided hunters because the same class of citizens should have equal access to a license) and 47-48 (public sentiment opposes a guaranteed quota for outfitters); Hunzie Dep. at 18 (biologically would not make a difference) and 47-48 (it would discriminate between nonresidents who are outfitted and those who are not; it could eventually reduce the number of resident licenses); Hunt Dep. at 19 and 28 (politics would not permit invoking the set-aside remedy for outfitters).

It is clear to the court that nonresident outfitted hunters come to Wyoming with objectives that are markedly different from many of Wyoming's resident hunters. Outfitted nonresidents are seeking a guided, properly equipped, recreational experience with a high likelihood of harvesting an antlered trophy. Nonresident hunters are more successful than resident hunters in harvesting deer and elk. E.g. Harju Dep. at 40-42.

Biologically, it is possible to regulate to take into consideration the higher kill rates of nonresident hunters, the higher ratio of male animals they take, and to allow more nonresident licenses; however, such changes would require re-working Wyoming's entire elk and deer management programs — with the length of the hunting seasons or the total number of licenses the most likely variables to be adjusted. See Harju 2nd Aff. at ¶¶ 18 (primary reason for allocation of licenses was biological so that there were not too many male animals harvested and to preserve a proper male/female ratio), 20 (the present license allocation system cannot be easily adjusted from a biological viewpoint) and 21 (defendants would have to change totally the allocation system in order to offer more licenses to nonresidents); Harju 1st Aff. at ¶ 22 (if defendants offered unlimited general licenses to nonresidents, outfitted nonresidents, who primarily hunt males, would reduce the male/female elk ratio, and defendants would have to limit the number of hunters, drastically reduce the length of the hunting season, or both). Harju Dep. at 40-42, 53-55, 73; Cleveland Dep. at 48 (allowing nonresident outfitted hunters unlimited licenses would push Department towards limited quota management). These changes, in turn, would affect the quality of hunting in Wyoming. See, Harju 1st Aff. at ¶ 23 (hunting season in Wyoming is longer than most other states because of harvest control and because unlimited licenses are not offered to nonresidents; outfitters can attract customers because of the longer hunting season, fewer hunters, and larger male/female elk ratios than in other states.)

Approximately 1,000 Wyoming residents volunteer their time each year to wildlife projects. Baughman Aff. at ¶ 5; Gabriele Dep. at 6 (Commission recognizes residents' volunteerism). Defendants submit affidavits from volunteers who are also resident hunters who state they would be less likely to volunteer their services if the preferential allocation of licenses for residents was lost. See Farris Aff. at ¶ 6, Sersland Aff. at ¶ 8, and Taylor Aff. at ¶¶ 6 and 1O (landowner who maintains habitat for wildlife and who also volunteers in support of game conservation would be less likely to do so if residents no longer received preferential treatment in allocation of hunting licenses).

As these facts show, it is difficult to compare resident and nonresident licenses because of the byzantine nature of Wyoming's game and fish licensing statutes and regulations.

IV Disputed Facts

The disputed facts in this case are primarily those surrounding the effect of the licensing system on the outfitters' business, the relative contributions to Wyoming's economy made by resident and nonresident hunters, the potential success of nonresident hunters if they were put in a single drawing with resident hunters, the fairness to non-outfitted nonresident hunters if there were a certain number of licenses set aside or reserved for outfitted nonresident hunters. In addition to the matters noted as disputed in Section III, there are the following disputed issues of fact: (a) The effect on wildlife management if nonresidents, who are more successful hunters, were allowed more licenses. See infra at pp. 24-25, description of Harju 2nd Aff. at ¶¶ 18, 20 and 21; Harju 1st AK at ¶ 22; Harju Dep. at 40-42, 53-55, 73; Cleveland Dep. at 48. Compare with D. Wade Decl. at ¶¶ 2-9 (although there is a need to consider biological and other competing factors in making decisions concerning herd management objectives, no biological factors require taking into consideration the residency of the hunter), (b) The amount of the economic contribution of nonresident hunters. Compare two Fletcher Decls. with O'Gara Aff.;²⁰ (c) Whether increased numbers of nonresident licenses or set aside licenses for outfitted nonresident hunters would detrimentally affect the economic contribution made by resident hunters. Compare O'Gara Aff. at ¶¶ 7 and 8 and Harju 2nd Aff. at ¶ 35 with Fletcher 2nd Decl. ¶¶ 7 and 8;²¹ (d) The extent to which nonresident hunters disproportionately take male animals, Compare W.O.A. Aff. at ¶ 71 (nonresidents harvest more cows and calves than bulls) with Harju 2nd Aff. at ¶¶ 11(H), 28 and 33 (nonresident hunters kill a higher proportion of bull elk and buck deer than do residents; many nonresident hunters will not kill females); (e) Whether nonresidents would fare better in obtaining licenses if there were a single pool of hunters, residents and nonresidents, for all elk and deer licenses. Compare Harju 1st Aff. at ¶¶ 26-27 (nonresidents are currently guaranteed a certain percentage of licenses, which could go up or down if they are put into a single pool with residents, particularly in limited quota areas where there is high demand by residents) and Harju 2nd Aff. at ¶ 32 (criticizes Talbott's description of only one of several outcomes with a single pool and his basic assumptions, which Harju describes as flawed, i.e., (i) there would be no change in the number of nonresident hunter applications, (ii) there would be no change in the number of licenses issued to nonresident hunters, (iii) there would be no variation in the number of resident hunters due to the variation in available animals, and (iv) animal management would not be based on herds and hunt areas) with Talbott 2d Decl. at 2 (hypothetical of a single pool indicates that the number of licenses issued to nonresident hunters could increase, even though the overall probability of drawing might decrease from what it is under the current system); (f) The percentage and effects of elk migration to the surrounding states. W.O.A. Aff. at ¶ 31(25%); Harju 2nd Aff. at ¶ 27(not as high as 25%); see also Linn Decl. at ¶ 12 (migrating elk herds require coordination of hunting between bordering states; otherwise, overpopulation or skewed male/female ratios must be controlled by shortening the season or restricting hunting to antlerless animals, which are viewed by plaintiffs as "passive discrimination" against nonresident hunters); Harju 2nd Aff. at ¶ 22 (defendants have shortened hunting seasons and reduced license quotas to increase male/female ratios partially in response to outfitters complaints that there were not enough trophy males for their nonresident clients); Hunt Dep. at 42 (depredation hunts are sometimes used for management of migrating herds when an insufficient number of animals have been harvested by regular hunters).

20 There is very little on which Fletcher (Plaintiffs' expert) and O'Gara (Defendants' expert) agree. Robert R. Fletcher is a retired professor emeritus from the University of Wyoming, Department of Agricultural Economics, whose areas of concentration included the outfitting industry in Wyoming. There are two Fletcher declarations. For clarity, the court will refer to the declaration filed on February 8, 1999, in support of plaintiffs' Opposition Brief to Defendants' Motion for Summary Judgment as the Fletcher 1st Declaration (Fletcher 1st Decl.). The declaration filed March 3, 1999, in support of plaintiffs' Reply to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment will be referred to as the Fletcher 2nd Declaration (Fletcher 2nd Decl.)
O'Gara is a professional economist, who served 4 1/2 years as the director of the Research Statistics Division of the Wyoming Department of Labor and is currently a full-time Economics Instructor at Laramie County Community College and Director of the Center for Economic and Business Data.
According to their declarations and affidavit, these two disagree on (a) the validity of reported statistics, (b) the significance of underlying assumptions, (c) the methodology in calculating multiplier effects, and (d) the conclusions on the relative economic contributions made by both resident and nonresident hunters. In 1993 nonresident outfitted hunters paid $25.4 million directly to Wyoming outfitters and $19.7 million to other Wyoming businesses, for a total of $45.1 million. Fletcher 1st Decl. at ¶¶ A.4 and B.6. To reflect 1998 dollars requires a 12 percent upward adjustment for inflation, id., which would bring the total close to $50.5 million. O'Gara does not dispute these numbers, rather he points out a December, 1998, survey by Responsive Management entitled, "Wyoming 1997 Hunting Expenditures," which reported that resident hunters (of antelope, deer and elk) spent $126.9 million. O'Gara Aff. at ¶ 7. While the numbers may not be directly comparable (e.g., Plaintiffs' total of $50.5 million is adjusted for inflation; Defendants' numbers include antelope hunters, and we do not know if Plaintiffs' do) it seems that both resident hunters and nonresident outfitted hunters contribute to the economic activity in the state and that residents may directly spend up to twice the amount as outfitted nonresidents in a single year.

21 O'Gara criticizes a report by Fletcher and John Talbott (another of Plaintiffs' economics experts) that failed to take into consideration the full economic impact of resident hunting on the state's economy by not applying a multiplier that would indicate the indirect effects of the $91 million in direct spending by resident hunters. Fletcher responds that a multiplier is only applicable to export sales (presumably out of the state). O'Gara indicates that the number of in-state resident hunters may be reduced if nonresident hunting licenses were reallocated and that the economic effects of these impacts should be quantified before changes in the system are made. Harju states that the 1987 Department report shows that nonoutfitted nonresidents contribute more to Wyoming's economy than do outfitted nonresidents, Fletcher opines that a set-aside for outfitted nonresident hunters would reduce the number of nonoutfitted nonresident, rather than resident, hunters. He also maintains that if the 1987 Department Planning report were corrected for a miscalculation, it would similarly conclude, as do plaintiffs' experts, that outfitted nonresident hunters increase the economic value of elk hunting to the state over nonoutfitted nonresident hunters. Plaintiffs do not address the impact on resident hunters' contribution to the state's economy if the allocation of licenses to outfitted nonresidents increases.

The Motions for Summary Judgment and the Motion to Dismiss bring before the court all of the issues in this case. At the motions hearing, the parties agreed that the disputed issues of fact are not material to the disposition of the motions before the court.

V Standing

Defendants' Motion to Dismiss and Motion for Summary Judgment challenge plaintiffs' standing. Standing "is perhaps the most important of the Article III justiciability doctrines." Clajon Production Corporation v. Patera, 70 F.3d 1566, 1572 (10th Cir. 1995), citing Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 1124, 82 L.Ed.2d 556, (1983). This is the threshold question in every federal case, determining the power of the court to entertain the suit. Warth v. Seldin, 422 U.S. 490; 498, 95 S.Ct. 2197, 2205 (1975).

"'[S]tanding jurisprudence is a highly case-specific endeavor, turning on the precise allegations of the parties seeking relief.'" Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877, 882 (10th Cir. 1992) (quoting National Wildlife Fed'n v. Hodel, 839 F.2d 694, 703-04 (D.C. Cir. 1988)).

Prior to addressing the motions themselves, we must turn to the question of standing of each of the categories of plaintiffs. The court finds that the only group of plaintiffs to have standing in this case are nonresident hunters who allege injury as a result of the allocation method under Wyoming's hunting licensing system.

Plaintiffs are comprised of three groups: (1) individual nonresident hunters, (2) Outfitters, all Wyoming residents, and (3) Outfitters Association, a non-profit organization whose members are comprised of resident outfitters and guides and various individuals. Case law requires a close examination of the standing of each set of plaintiffs to bring constitutional challenges. E.g. Branson School Dist. Re-82 v. Romer, 161 F.3d 619, 627-631 (10th Cir. 1998) (examining separately standing of school district plaintiffs and individual plaintiffs); Wyoming Farm Bureau Federation v. Babbitt, 987 F. Supp. 1349, 1358-1362 (D.Wyo. 1997) (examining separately standing of amateur researchers, environmental group, and farm bureau.)

To establish standing for cases or controversies under Article III of the United States Constitution, a plaintiff must show, at a minimum, that it has:

First. . .suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (internal quotation marks, omission marks, brackets, and citations omitted); Buchwald v. University of New Mexico, 159 F.3d 487, 493 (10th Cir. 1998); State of Utah v. Babbitt, 137, F.3d 1193, 1202 (10th Cir. 1998); accord Clajon Production Corp. v. Petera, 70 F.3d 1566, 1571 (10th Cir. 1995) (finding that ranchers' allegations that residency-based allocation scheme for hunting licenses impaired their ability to sell commercial hunting services in out-of-state market was insufficient injury-in-fact to confer standing for Commerce Clause claims). "Neither the Administrative Procedure Act, nor any other congressional enactment, can lower the threshold requirements of standing under Article III." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 487 n. 24 (1982). "Standing is a jurisdictional issue that may be raised by the court at any time." Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 592-93 (10th Cir. 1996).

The party invoking the jurisdiction of the court bears the burden of establishing these elements. Clajon, 70 F.3d. at 1572, citing Lujan, 504 U.S. at 561, 112 S.Ct. at 2136. A plaintiff "must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations he has no standing." McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Preliminarily, we note that "[the elements of constitutional standing] are not mere pleading requirements but rather [are] an indispensable part of the plaintiffs case." Lujan, 504 U.S. at 561, 112 S.Ct. at 2136. Consequently, "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id.

At the summary judgment stage, the injury-in-fact element requires that the plaintiff set forth by affidavit or other evidence specific facts which, for purposes of the summary judgment, will be taken to be true. Clajon, 70 F.3d at 1572 (citing, Lujan, 504 US. at 561, 112 S.Ct. at 2136, which in turn cites Fed.R.Civ.P. 56(e)), also, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, n. 3, 112 S.Ct. 2886, 2891-92, n. 3, requiring that injury-in-fact at the summary judgment stage be adduced from sworn testimony.) Thus, in order to withstand defendants' motion for summary judgment, plaintiffs must at a minimum set forth specific facts from which we could conclude that the Wyoming hunting license allocation system causes them some judicially cognizable injury. Clajon, 70 F.3d at 1572.

Plaintiffs contend that each of them can establish standing either on its own behalf or in a representative capacity. Defendants contend that each plaintiff must establish standing based upon its own proprietary interest, under each claim, and that representative standing is reserved for narrow facts. The elements for standing to challenge the constitutionality of a statute are the same for any clause of the constitution invoked. See, Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

A. Nonresident Hunters' Standing

The plaintiffs named in the Amended and Superseding Complaint for Declaratory and Injunctive Relief ("Complaint") who are individual nonresident hunters are Vince Van Roeyen (Michigan resident), Kim R. Carrara (Pennsylvania resident), Walter Lee Jones (Pennsylvania resident), Craig Artman (Iowa resident), and Eric Larson (Illinois resident). Complaint at 4-5. Each of these plaintiffs contends that he is the victim of a pattern of direct explicit discrimination, Complaint at 4-8 and 15.

Plaintiffs provide the following list of nine ways in which they allege Wyoming's laws, regulations and practices treat residents more favorably than nonresidents:

1. In all elk general license areas, resident licenses are unlimited in number, in contrast to nonresidents who only receive 10 to 12 percent of those licenses issued. Those licenses are guaranteed to residents while nonresidents are subject to restrictions.

2. In all general elk areas, residents can purchase an elk hunting license throughout the season "over the counter" (without entering a random draw where applicants outnumber available licenses) in contrast to nonresidents who enter an early, random draw with a limited number of licenses in which applicants outnumber the available licenses and most do not get a license.

3. Resident elk hunters have no cap or total limit for elk hunting licenses (general and limited) in contrast to nonresident hunters that have a cap of 7,250.

4. In "limited" license elk hunting areas residents must draw like nonresidents, but are entitled to 84% of the quota of licenses in contrast to 16% for nonresidents up to a cap of 7,250.

5. Most elk populations are above management objective, but the nonresident cap of 7,250 and the 16% ratio in "limited" license areas have not been changed.

6. In general deer license regions of the state resident license are unlimited in number, in contrast to nonresidents that have a cap of 20%. These licenses have been guaranteed to residents without limit. Only nonresidents are subject to quota (restricted) in these areas.

7. In all general license deer areas, residents can purchase a deer license throughout the season "over the counter" in contrast to the nonresident who must enter an early, random draw with fewer licenses than applicants.

8. In "limited" license hunting areas both resident and nonresidents must draw, but residents' entitlement is 80% of the quota in contrast to nonresidents that are limited to 20%.

9. Resident and nonresident deer licenses are not equivalent because residents can hunt in any "region" while nonresidents are restricted to a particular "region."

Plaintiffs' Brief in Support of Motion for Summary Judgment at 4-5.

Each nonresident-hunter-plaintiff alleges that he has unsuccessfully applied for a hunting license in Wyoming multiple times. Complaint at 4-5. Four of the five nonresident-hunter-plaintiffs have supported their allegations with sworn statements. See Van Roeyen Decl., Carrara Decl., Artman Decl., and Larson Decl. Two have purchased elk hunts (donated for fund-raising events) but have been unable to utilize them because they were unsuccessful in drawing a license for three and five years, respectively, under the current licensing system. See Van Roeyen Decl. and Artman Decl.

The relief sought by these plaintiffs is an injunction preventing defendants from giving preferential treatment to resident hunters and ordering them to issue all elk and deer licenses equally until a more equitable system is devised. It is likely that a decision in favor of plaintiffs' request would increase, although not guarantee, their chances of obtaining an elk or deer hunting license and provide them the opportunity to hunt in Wyoming.

The court finds that the nonresident hunters have standing to challenge the regulations under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which provides: "No State shall. . .deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. They are treated differently from similarly situated individuals, resident hunters, based upon the classification of residency in Wyoming. They have been unsuccessful in their attempts to apply for elk and deer hunting licenses in Wyoming, year after year, sometimes at significant unrecouped expenditures (purchase of unused elk hunts). Their economic interests are affected, and that may be sufficient for purposes of standing. E.g., Montana Outfitters Action Group v. Fish and Game Commission of the State of Montana, 417 F. Supp. 1005 (D. Montana, 1976). These injuries are fairly traceable to a system instituted by the defendants which subjects plaintiffs to the vagaries of a random drawing of a limited number of licenses allocated for nonresidents. Their resident counterparts are not subject to the same random drawings for elk and deer.

B. Outfitters' Standing

Outfitters named in the Complaint are Jim Allen, owner and operator of Allen's Diamond Four Wilderness Ranch, ("Allen"), Tim Trefren, owner and operator of Trefren Outfitters ("Trefen"), Bobbi Wade, part-owner and part-operator of High, Wild and Lonesome ("Wade"), and John Winter, owner and operator of Two Ocean Pass Outfitting ("Winter"). It is apparent from the Complaint that all Outfitters and their businesses reside in the State of Wyoming. They allege that their businesses are adversely affected by Wyoming's hunting license allocation system because of its effects on their primary clients, the nonresident hunters. Complaint at 3-4. They allege that their businesses are dependent on nonresident hunters and that they are competitively disadvantaged with outfitters in the surrounding Rocky Mountain states and Canada because the effects of the licensing system cause them to experience higher costs of marketing, lower numbers of potential clients, unpredictable bookings, lower profits, and lower market value both of their hunts and their businesses than their out-of-state competitors. Complaint at 3-4 and 8-11; Plaintiffs Opposition to Defendants Motion to Dismiss Commerce Clause Claim at 4. They contend that the licensing system which favors residents over nonresidents intentionally discriminates in order to create political support from residents and to favor residents who want to reserve hunting opportunities for themselves. Complaint at 15; Plaintiffs' Brief In Support of Motion for Summary Judgment at 8 and 13; Plaintiffs' Opposition Brief to Defendants' Motion for Summary Judgment at 9-10. They also contend that the effect of the discrimination infringes on Outfitters' right to a livelihood, a business that, according to plaintiffs, is wholly dependent upon the success of nonresident hunters in obtaining a Wyoming hunting license. Id. They contend that the effect of Wyoming's licensing system on the successful application of nonresident hunters impairs their access to a lucrative pool of customers and constrains their ability to conduct their interstate business. Complaint at 8-14.

In support of these allegations, the pleadings contain sworn declarations of the plaintiffs that their businesses are dependent on nonresident hunters, that they have booked multiple clients who have not been successful in the lottery for sometimes three or four consecutive years, that the randomness of the system makes it difficult to get bank loans, lines of credit, or to plan the future of their businesses. Decls. of Allen, Trefren, Wade, and Winter. One attributes her and her husband's business failure to the hunting allocation scheme for nonresidents, which failed to put licenses in the hands of hunters who had booked hunts with them. Wade Decl. at 10.

Plaintiffs rely upon Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978) to establish their standing. In Baldwin, the plaintiffs, a Montana outfitter and four of his nonresident customers, sought declaratory and injunctive relief as to the "constitutional validity of disparities as between residents and nonresidents, in [Montana's] hunting license system." The Baldwin court agreed with the trial courts finding that the nonresident hunters had standing to challenge the licensing system under the Privileges and Immunities Clause (Art. IV, § 2) and the Equal Protection Clause (Amend. XIV) of the United States Constitution. Because all issues were presented by the nonresident plaintiffs, who had standing, the Baldwin court found there was no need to decide the standing of the resident outfitter plaintiff. 436 U.S. at 378 n. 14. Thus, since the court did not address the outfitter's standing, Baldwin cannot stand for the proposition that a resident outfitter has standing to challenge the constitutionality of Wyoming's licensing system.

In another case relied upon by plaintiffs, Doe v. Bolton, 410 U.S. 179 (1973) the court held that where the issues were presented by a plaintiff with clear standing it was not necessary to address the standing of other plaintiffs upon which the challenged statutes operated less directly. Bolton, 410 U.S. at 188. Where the issues are sufficiently and adequately presented by certain plaintiffs, there is nothing gained or lost by the presence or absence of those less directly affected. Id. Like the silence of the court in Baldwin, the silence of the court in Bolton does not stand for the proposition that a resident outfitter has standing where the nonresident hunter may have standing or when the challenged statutes may affect them indirectly.

The Outfitters have not shown that they are treated differently from similarly situated individuals. The Outfitters are all residents of Wyoming. Similarly situated individuals would be nonresident outfitters guiding in Wyoming. There is no disparity in the licensing system between the treatment for resident outfitters and nonresident outfitters.²² Nor have the Outfitters suffered injury-in-fact from the nonrefundable application fee.

22 Compare Powell v. Daily, 712 P.2d 356 (Wyo. 1986) (holding former Wyoming statute that required one-year residency for applicants for game and fish guide licenses violated Privileges and Immunities Clause of the United States Constitution because it burdened the fundamental right with a degree of discrimination which did not bear a close relation to state's asserted reasons for discriminatory treatment).

The court finds that the Outfitters do not have standing to challenge the nonrefundable fee or the allocation of the licenses under the Equal Protection Clause of the United States Constitution because they are not subject to differential categorization or treatment in the allocation scheme of licenses which they neither purchase nor sell. See Tonkovich, 159 F.3d at 533 ("at the heart of any equal protection claim must be an allegation of being treated differently than those similarly situated").

Outfitters contend that Wyoming's nonresident licensing method violates the dormant Commerce Clause of the United States Constitution because it imposes an unreasonable and excessive burden on interstate commerce. A regulation discriminates against interstate commerce when it treats in-state and out-of-state economic interests differently, benefitting residents and burdening nonresidents. Oregon Waste Systems, Inc. v. Oregon, 114 S.Ct. 1345, 1350 (1994). Discriminatory regulations are "virtually per se invalid," unless the state shows a legitimate interest supporting the regulations and a lack of nondiscriminatory alternatives. Id.

The 10th Circuit in Clajon Production Corp. v. Patera, 70 F.3d 1566 (10th Cir. 1995) provides guidance for Commerce Clause standing analysis. As in Clajon, plaintiffs here do not allege injury-in-fact from Wyoming's decision to limit the total availability of hunting licenses (residents' plus nonresidents') as a legitimate response to the need to manage and conserve wildlife in the state. Clajon, 70 F.3d at 1573. It is clear from their sworn declarations that they attribute their injuries to the unequal allocation of licenses between the residents and the nonresidents. Plaintiffs' expert provided statistics indicating that nonresident hunters are a lucrative source of revenue for outfitters and related tourism businesses. Fletcher 1st Decl. at 3-6. Accordingly, Outfitters argue that the license allocation scheme causes them injury-in-fact by denying them access to a profitable pool of nonresident customers. Outfitters claim that their ability to engage in interstate commerce is excessively burdened by the license allocation scheme as it applies to their primary clients, the nonresident hunters.

In order to establish standing, plaintiffs must, at a minimum, set forth specific facts from which we can conclude that the Wyoming hunting license allocation scheme causes them some judicially cognizable injury. Clajon, 70 F.3d at 1572 (citing Lujan, 504 U.S. at 561, 112 S.Ct. at 2136. Plaintiffs are involved in interstate commercial transactions. They have lost specific bookings of nonresident hunters because those potential customers failed to draw a hunting license and canceled their reservations. Admittedly, the loss of an opportunity for an economic benefit may constitute a cognizable injury. Clajon, 70 F.3d at 1573 (citations omitted). However, standing requires more than simply an injury to a cognizable interest; it also requires that the injury suffered by the plaintiff be fairly traceable to the defendants allegedly unlawful conduct. Id. In order to establish standing, plaintiffs must show that the allocation system is unlawful and that there is a causal nexus between the license allocation scheme and their inability to attract nonresident hunting customers. Id.

They must actually trace their alleged injuries (inability to conduct interstate transactions, inability to earn a livelihood) to the unlawful licensing system, rather than simply provide anecdotal evidence of lost business due to the unsuccessful draw of hunters who have booked with them or customers who have not returned. Clajon, 70 F.3d at 1572-1573. Plaintiffs are required to present some evidence that the license allocation scheme is causing fewer nonresidents to hunt in Wyoming. Clajon, 70 F.3d at 1573. They must demonstrate that Wyoming's allocation between in-state and out-of-state licenses disproportionately disadvantages nonresidents by failing adequately to approximate the ratio of demand between in-state and out-of-state hunters. Id.

Approximately 51,000 residents per year purchase elk licenses in Wyoming, and approximately 19,000 nonresidents apply for elk licenses each year. W.O.A. Aff. at 8. For deer licenses, the yearly estimates are 55,000 and 30,000, respectively. W.O.A. Aff. at 9. Therefore, we estimate that Wyoming's residents comprise approximately 73% (51,000/70,000) of the total yearly demand for elk licenses and 64% (55,000/85,000) of the total yearly demand for deer licenses. The complementary ratios for nonresident demand would be 29% and 36% for elk and deer, respectively. In the initial drawing, Wyoming's licensing method allocates 84% of the elk and 80% of the deer licenses to residents and allocates the remaining 16% and 20%, respectively, to nonresidents. Although the licensing allocation ratios do not exactly mirror the approximate demand ratios, which are rounded averages, the demand ratios will be higher or lower in any given year.²³ Additionally, this allocation is for the initial drawing only, and there are opportunities for nonresidents to apply for special fee licenses, left-over licenses, and issue-after licenses, all of which improve their chances of success. In spite of all these opportunities, 6,000 licenses are not taken by either resident or nonresident hunters. Gabriele 1st Aff. at ¶ 17; Harju 2nd Aff. at ¶ 24 ("several thousand" female elk licenses are available but unused by plaintiffs); Hunzie Dep. at 23 (leftover licenses are often for antlerless animals, issued for herd management purposes, and are not always purchased by resident or nonresident hunters). As a result, we do not find that the allocation scheme "disproportionately disadvantages" nonresident hunters.

23 There are three years for which demand ratios can be calculated from plaintiffs' data:

1996 — 49,957 residents purchased elk licenses, 20,571 nonresidents applied, total demand was 70,528; 1995 — 51,297 residents purchased elk licenses, 20,246 nonresidents applied, total demand was 71,543; 1994 — 50,465 residents purchased elk licenses, 17,454 nonresidents applied, total demand was 67,919. See, WOA/W.O.G.A. Affidavit at 8.

These translate into the following specific demand ratios:

1996 — 71% residents (49,957/70,528), 29% nonresidents (20,571/70,528)

1995 — 72% residents (51,297/ 71,543) 28% nonresidents (20,246/ 71,543)

1994 — 74% residents (50,465/ 67,919) 26% nonresidents (17,454/67,919)

The court in Clajon required that, in order to show standing, the plaintiffs (ranchers who offered hunting services to out-of-state residents and had similar complaints to those in this case) needed to provide evidence about the relative demand (demand for resident hunting licenses in relation to the nonresident demand), in the limited quota areas in order to establish an injury fairly traceable to the license allocation scheme. Clajon, 70 F.3d at 1566 and 1574. In that way, they would be comparing residents and nonresidents in similar, concrete situations, rather than in situations which might be affected by a number of factors. We have found no evidence of this type of comparison in the current case.

Plaintiffs must also demonstrate that nonresident hunters have less success under the current allocation scheme than they would under an alternative scheme. Clajon, 70 F.3d at 1573. They have failed to do this. It is a disputed fact that plaintiffs would fare better economically if their potential clients were placed in a single drawing with residents. Additionally, plaintiffs' expert cited a 1988 report on the outfitting industry by the Office of Research at the University of Wyoming, which indicated that the outfitter industry was only at 60% capacity at the time of the report. Fletcher 1st Decl. at 4-5. Although the allocation scheme has not changed in any material way since that time, the hunter outfitting industry apparently improved its capacity to 67% in 1995. See, W.O.A. Aff. at 2. In addition, Outfitters' own reports establish that their economic activity increased by 48%, and jobs within the industry rose by 29.9% in the five year period from 1988 to 1993. See, O'Gara Aff. at ¶ 12 (citing a 1990 report by plaintiffs' experts, Taylor and Fletcher, entitled, Economic Development and Diversification Through Enhancement of the Outfitting Industry in Wyoming, and their 1993 update, The Economic Impact of the Wyoming Outfitting Industry: An Update — 7993); but see, Fletcher 2nd Decl. at ¶ 12 (criticizing O'Gara's use of gross economic impacts to measure the economic health of the outfitting industry).

Only 30% of nonresident elk hunters in Wyoming choose to be outfitted. W.O.A. Aff. at ¶ 9. There is an implication that discrimination by residents against the outfitting business hampers outfitters, but there is no proof. In fact, there is no discussion by the parties that would explain why only 1 in 3 nonresident elk hunters hunts with an outfitter in Wyoming, Part of the explanation may be found in the definition of "outfitter" under Wyoming law: "Outfitter" means a person. . .who advertises or holds himself out to the public for hire or remuneration to provide guide or packing services for the purpose of taking any big or trophy game animal, excluding any person who furnishes pack or riding animals and other equipment only to a hunter for his personal temporary use and any landowner providing outfitter services on private lands owned or leased by him." Wyo. Stat. § 23-2-406 (1999). Many nonresident elk hunters could be obtaining permission to hunt on private or leased lands and either outfit themselves, temporarily rent equipment and animals, or hire the landowner for outfitting services. Under each of these situations, the nonresident hunter would be considered a non-outfitted hunter under the statutory definition. When we finally understand the reason for why only 30% of nonresident elk hunters are outfitted, we may discover that a relatively small group of businesses has been seeking protective legislation. See infra at p. 19 (outfitters cater to approximately 7% of the total elk hunters in Wyoming, Gilroy Decl. at ¶ 41)

The random draw for nonresident elk and deer licenses is only one of the many issues with which Outfitters, who run a customer-service based business, must contend. They also have to deal with customer preferences for hunting certain animals in certain locations, the choice of some nonresidents to hunt without an outfitter, the variety in timing of hunting seasons for various species of game, the seasonal nature of the outfitters' business, the dynamics of a migratory resource, the restrictions of a variety of governmental agencies, access issues, and the cash-flow issues common to all small businesses²⁴ Outfitters argue that post-draw solicitation of customers increases their clients by only a small amount, that by the time the draw has occurred, they have gone to the expense of attending sports shows and booking potential customers. The lack of interest of their booked customers in applying for a post-draw antlerless animal also reduces their ability to attract and maintain customers. We agree with plaintiffs' expert who stated, "the outfitting industry as a whole is not well understood in Wyoming." Fletcher 1st Decl. at 2. The interplay of all these factors has been ignored by Outfitters, and it is apparent to the Court that the license allocation scheme is not the sole reason for their struggle to attract nonresident hunters and earn a living.

24 One of the Outfitters indicated that requirements and restrictions of the National Forest Service have also contributed significantly to the expense and limitations in hunting areas where his outfitting business is located. Trefren Decl. at 2-3. Another admits that she and her husband made mistakes in the course of attempting to establish their outfitting business. Wade Decl. at ¶ 23. Wade is an outfitter who, with her husband, bought a ranch, and began an outfitting business because the "landowners wanted us to pay a set amount each year, with that amount increasing substantially each year," and they were not sure that they could meet those obligations without starting a business. Wade Decl. at ¶ 12. As a result, they bought a dormant national forest based outfitting operation and began their first attempt at operating their own small business. Id. Although Wade provides examples of nonresident hunters who booked with her but were unable to hunt and those who ceased to become repeat customers because they were unsuccessful in the draw, it is not clear to this court that the lack of success of the nonresident hunters in the draw is the sole reason Wade's business failed. Sometimes her hunters were as successful in drawing as the average outfitter (1 in 3, according Fletcher 1st Decl. at ¶ 6) and sometimes they were more or less successful (in 1990, 1 in 3 elk hunters drew; in 1991, 2 in 3 elk hunters drew and better than 1 in 2 deer hunters drew; in 1992, 1 in 5 elk hunters drew). Wade Decl. at 6. One of their hunters did not return because he was successful in drawing only one of the five animals he wanted to hunt and did not feel the expense was worth it to him for just one animal. Wade Decl. at ¶ 18.

As in Clajon, Outfitters have failed to demonstrate any injury-in-fact flowing from Wyoming's method of allocating licenses between residents and nonresidents. Thus, we conclude that they have failed to demonstrate standing, and we dismiss their constitutional challenges for lack of jurisdiction. Clajon 70 F.3d at 1574.

C. Association and Third-Party Standing

The Outfitters and their Association also contend that they have standing as representatives of injured outfitters and association members. Outfitters contend they may assert the rights of third parties as plaintiffs did in Craig v. Boren, 429 U.S. 190 (1976); Singleton v. Wulff, 428 U.S. 106 (1976); Eisenstadt v. Baird, 405 U.S. 438 (1992); Griswald v. Connecticut, 381 U.S. 479 (1965); and Barrows v. Jackson, 346 U.S. 249 (1953). Associations can have standing to challenge the constitutionality of statutes on behalf of their members. Warth v. Seldin, 422 U.S. 490, 511 (1975) and Hunt v. Washington Apple Advertising v. Commission, 432 U.S. 341-345, Sierra Club v. Morton, 405 U.S. 727, 739 (1972)

Asserting rights of third parties is a narrow exception to the general rule that plaintiffs cannot attack a statute on the grounds that it might apply unconstitutionally to a different person or in a different situation. See, United States v. Raines, 362 U.S. 17, 21-22 (1960) (rules of restraint identified, including corollary that litigant may only assert his own constitutional rights or immunities.) These rules of restraint continue to be enforced by the courts today. State of Utah v. Babbitt, 137 F.3d 1192, 1202 (10th Cir. 1998); Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir. 1993); Eastern Shoshone Tribe v. Northern Arapaho Tribe, 926 F. Supp. 1024 (D.Wyo. 1996). Exceptions to these rules rest on the facts of a case.

Cases cited by plaintiffs are factually disparate from the facts in the present case. Three of the cases involved criminal prosecution of the representative. Eisenstadt v. Baird, 405 U.S. 438 (1992) Craig v. Boren, 429 U.S. 190 (1976); Singleton v. Wulff, 428 U.S. 106 (1976). There is no potential criminal threat or pending action against any of the plaintiffs in this case. The fourth case cited by plaintiffs involved a facially discriminatory covenant which was being enforced by a homeowner's association against a Caucasian who breached the covenant. See, Barrows v. Jackson, 346 U.S. 249 (1953). There is nothing in the pending litigation that is similar to any of the peculiar facts in the cases cited by plaintiffs.

The issue of such third-party or representative standing has been more recently explained by the United States Supreme Court as follows:

This Court has long applied a presumption against third-party standing as a prudential limitation on the exercise of federal jurisdiction. Federal courts, we have held, "must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation." Singleton v. Wulff, 428 U.S. 106, 113 (1976); see also Warth v. Seldin, 422 U.S. 490, 499 (1975).

* * *

But even when "the very same allegedly illegal act that affects the litigant also affects a third party," a plaintiff "cannot rest his claim to relief on the legal rights or interests of [the] third part[y]." U.S. Department of Labor v. Triplett, 494 U.S. 715, 720 (1990) (internal quotation marks omitted). A party raising a constitutional challenge to a statute must demonstrate not only "that the alleged unconstitutional feature [of the statute] injures him" but also that "he is within the class of persons with respect to whom the act is unconstitutional." Heald v. District of Columbia, 259 U.S. 114, 123 (1922). This requirement arises from the understanding that the third-party rightholder may not, in fact, wish to assert the claim in question, as well as from the belief that "third parties themselves usually will be the best proponents of their rights." Singleton, supra, at 113-114; see also Holden v. Hardy, 169 U.S. 366, 397 (1898).

* * *

More importantly, since this Court decided Craig, we have articulated the contours of the third-party standing inquiry in greater detail. In Powers v. Ohio, 499 U.S. 400 (1991) we stated that a litigant seeking to assert the rights of another party must satisfy three interrelated criteria: "The litigant must have suffered an injury in fact, thus giving him or her a sufficiently concrete interest in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests." Id. (internal quotation marks and citations omitted); see also Campbell v. Louisiana, 523 U.S. 392, ___, 118 S.Ct. 1419, 1423 (1998). While it seems clear that petitioner has a significant stake in challenging the statute and a close relationship with her father, she has not demonstrated a substantial hindrance to her father's ability to assert his own rights. Powers and our earlier precedents suggest that the absence of such an obstacle precludes third-party standing. See 499 U.S., at 411, (explaining that "[all] three important criteria [must be] satisfied," i.e., that there "must exist some hindrance to the third party's ability to protect his or her own interests" before the presumption is rebutted); see also Singleton, supra, at 116 ("Even where the relationship is close, the reasons for requiring persons to assert their own rights will generally still apply"). Petitioner has not demonstrated that [the third party] confronted a "genuine obstacle" to the assertion of his own rights that rises to the level of a hindrance. 428 U.S., at 116; see also Barrows v. Jackson, 346 U.S. 249, 257 (1953) (third-party standing accorded because it "would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court").

Miller v, Albright, 118 S.Ct. 1428, 1442-43 (1998) (O'Connor J., concurring) (citations partially omitted). In the present case, we do not find the requisite close relationship among Outfitters and those outfitting businesses that are not parties. We also do not find evidence of a genuine obstacle that would hinder unrepresented Wyoming outfitters from presenting their grievances before this court. We, therefore, do not find third-party standing of Outfitters for their injured, unrepresented competitors.

Outfitters Association has standing to bring suit on behalf if its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit, Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441 (1977). Since we have determined that Outfitters lack standing, the first element of association standing fails, and we conclude that Outfitters Association does not have standing, either.

VI Applicability of the Equal Protection Clause

Since the group of plaintiffs who are nonresident hunters have established standing, the court next examines whether, as a matter of law, their constitutional challenges succeed. For the reasons detailed below, the court determines that plaintiffs' challenges under the Equal Protection Clause fail because nonresident hunters are not a suspect class, hunting is not a fundamental right, and the challenged regulations are rationally related to a legitimate government purpose.

The Equal Protection Clause of the Fourteenth Amendment provides: "No State shall. . .deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. The guarantee of equal protection under our United States Constitution was described by the Supreme Court in Harris v. McRae, 448 U.S. 297, 322, 100 S.Ct. 2671, 2691, 65 L.Ed. 784, 808 (1980):

It is well settled that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution, the validity of classification must be sustained unless "the classification rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective." McGowan v. Maryland, 366 U.S. at 425 [ 81 S.Ct. at 1105] . This presumption of constitutional validity, however, disappears if a statutory classification is predicated on criteria that are, in a constitutional sense, "suspect," the principal example of which is a classification based on race. .

May v. Town of Mountain Village, 132 F.3d 576, (10th Cir. 1997).

Thus, unless a legislative classification or distinction burdens a fundamental right or targets a suspect class, courts will uphold it if it is rationally related to a legitimate end. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998). Because state action subject to rational basis review is presumptively constitutional, the burden is on the plaintiffs to establish that the state action is irrational or arbitrary and that it cannot conceivably further a legitimate governmental interest. Riddle v. Mondragon, 83 F.3d 1197, 1207 (10th Cir. 1996). Under the rational basis test, a statutory discrimination will not be set aside if any set of facts reasonably may be conceived to justify it. Id. If there is a plausible reason for the legislative action, our inquiry ends. United States v. Castillo, 140 F.3d 874, 883 (10th Cir. 1998) (applying rational basis test to Congressional action); United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461 (1980). We need not find that the legislature ever articulated this reason, nor that it actually underlay the legislative decision, nor even that it was wise. United States v. Castillo, 140 F.3d 874, 883 (10th Cir. 1998); see, Hemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373 (1960) (rational basis of legislation as it pertained to the Due Process Clause); City of Dallas v. Stanglin, 490 U.S. 19, 27, 109 S.Ct. 1591, 1596 (1989) (rational basis standard under the Fourteenth Amendment).

For most hunters hunting is a form of recreation. For purposes of Equal Protection analysis, recreational hunting is a privilege and not a fundamental right. Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852 (1978); Terk v. Ruth, 655 F. Supp. 205, 210 (D.Colo. 1987); Powell v. Daily, 712 P.2d 356, 360 (Wyo. 1986) (following Baldwin in holding that "the hunter is only engaging in recreational activity and that receiving such an opportunity is not a fundamental right"). Distinguishing between residents and nonresidents in the granting of recreational hunting privileges also does not involve a suspect class such as race, sex or religion. Because discrimination between resident and nonresident recreational hunters involves neither a fundamental right nor a suspect class, we apply the rational basis test.

In Baldwin, the Supreme Court had an opportunity to examine, under a rational basis test, a constitutional challenge brought by a Montana outfitter and four nonresident hunters to Montana's hunting license fee structure. Under Montana's fee structure, nonresidents were required to purchase a combination license, while residents could purchase single species licenses. Baldwin, 436 U.S. at 373-74. Nonresidents were required to pay seven and one/half as much for the same license.²⁵ In its analysis under the Equal Protection clause, the court held that

25 Plaintiff outfitter tried unsuccessfully to challenge Montana's hunting licensing method under both the Privileges and Immunities Clause (U.S. Const. Art. IV § 2) and the Equal Protection Clause (U.S. Const. Amend. XIV). The Supreme Court determined that only with respect to those privileges and immunities bearing upon the vitality of the nation as a single entity must a state treat all citizens, resident and nonresident, equally. Baldwin 436 U.S. at 383. Equality in access to Montana elk is not basic to the maintenance or well-being of the nation and is not a "fundamental" right or activity under the privileges and immunities clause. Id. at 388.

[A] statutory classification impinging upon no fundamental interest need not be drawn so as to fit with precision the legitimate purposes animating it. . . .That [Montana] might have furthered its underlying purpose more artfully, more directly, or more completely, does not warrant a conclusion that the method it chose is unconstitutional." Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813, 96 S.Ct. 2488, 2499.

We perceive no duty on the State to have its licensing structure parallel or identical for both residents and nonresidents, or to justify to the penny any cost differential it imposes in a purely recreational, noncommercial, nonlivelihood setting. Rationality is sufficient. . . .So long as constitutional requirements have been met, as we conclude is the case here, "[p]rotection of the wildlife 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. Dept. of Conservation, 263 U.S. 545, 552, 44 S.Ct. 186, 189 (1924).

Baldwin, 436 U.S. at 390-391 (citations partially omitted).

The reason for the price differential offered by Montana in Baldwin was to limit the number of hunter days in the Montana elk country. Here the price differential relates to an application fee and is even more closely associated with a legitimate state purpose, i.e., to cover the increased costs associated with nonresident hunting applications. The evidence is undisputed that there are additional costs associated with the processing of nonresident hunters' license applications and that those additional costs were before the Legislature when it set the $10 nonrefundable application fee for nonresident licenses.

If Outfitters or Outfitters Association had been able to establish standing, their claims under an Equal Protection Clause analysis would have failed. Wyoming's nonresident application fee and its allocation of a limited percentage of hunting licenses to nonresidents affect certain economic interests of Outfitters and would be, therefore, subject to the rational basis test. Generally, economic rights, even economic rights related to making a living, are not "fundamental rights." E.g. Oklahoma Ed. Ass'n v. Alcoholic Bev. Laws Enf. Com'n, 889 F.2d 929, 932-33 (10th Cir. 1989) (the Supreme Court has never recognized a fundamental right to pursue a particular line of employment); Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir. 1990) (interest in water for real estate development is not a fundamental right); Stewart v. U.S. Trustee, 175 F.3d 796, 812-13 (10th Cir. 1999) (applying rational basis test to bankruptcy dismissal statute because there is no constitutional right to obtain a discharge of one's debts in bankruptcy and therefore bankruptcy relief is not a fundamental right). Thus, any equal protection challenge by the Outfitters would be subject to the same rational basis test applied above to the challenge by the nonresident hunters.

The Court finds that the cost differential of the nonresident application fee is rationally related to a legitimate end. Defendants point out that the Legislature chose not to follow the Commission's recommendation that the fee also be imposed on resident license applications. However, under the rational basis test the court does not look to the wisdom of the action or eliminate the universe of other possible solutions. Instead it is sufficient that the action is relevant to the achievement of any legitimate governmental objective — in this case covering extra costs associated with the nonresident applications. Thus, the classification does not impinge on rights protected by the United States Constitution, does not involve an immutable or suspect class such as race, gender or illegitimacy, and is a rational means to serve a legitimate ends, and therefore the nonresident hunter plaintiffs have not shown a violation of the Equal Protection Clause regarding the $10 nonrefundable application fee. Cleburne, 473 U.S. at 440-41.

Plaintiffs contend that they have identified nine factors, infra. pp. 32-33, that show the discrimination against nonresident hunters in allocating hunting licenses is deliberate and invidious. Plaintiffs rely heavily on the following dicta in footnote 24 of Baldwin: "We agree with the dissent that the State's need or desire to engender political support for its conservation programs cannot by itself justify an otherwise invidious classification." However, plaintiffs' reliance does not help them in light of the fact that the next sentence of the footnote holds that classification scheme, resident and nonresident, as not "otherwise invidious discrimination." Id. As noted in a Colorado case, the phrase "otherwise invidious discrimination" is "generally used to describe discrimination against a suspect class or which impinges on a fundamental right." Terk v. Ruch, 655 F. Supp. 205, (D.Colo. 1987) (examining Colorado license scheme which granted 90% of bighorn sheep and Rocky Mountain goats for residents).

In DeMasters v. State of Montana, 656 F. Supp. 21 (D.Mont. 1986) the United States district court upheld a differential allocation in the number of licenses available to Montana residents against an equal protection challenge by a nonresident elk hunter. The court held that the reasons advanced by Montana, conservation of wildlife and the economic sacrifices in foregoing development to protect habitat, "bore some rational relationship to a legitimate state purpose." DeMasters, 656 F. Supp. at 24.

In this case, as in the DeMasters case, it is a rational basis for defendants to choose to limit nonresidents while allowing unlimited resident licenses. As noted in Terk, there must be some limit on the number of licenses and it is not irrational to decide to impose that limit by limiting the number of nonresident licenses. Terk, 655 F. Supp. at 211. Plaintiffs contend that the purpose of game conservation could be served just as well by an adjustment to a different variable involved in game management. However, as the undisputed evidence shows herd management is a complex task and having found that there is some rational relationship to a legitimate state purpose it is not necessary for the Equal Protection analysis to also find that the underlying purpose could not have been served "more artfully, more directly, or more completely." Baldwin, 426 U.S. at 390 (quoting Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813, 96 S.Ct. 2488, 1499 (1976)). "Protection of the wildlife of the State is peculiarly within the police power, and the State has great latitude in determining what means are appropriate for its protection." Id. at 391 (quoting Lacoste v. Department of Conservation, 263 U.S. 545, 552, 44 S.Ct. 186, 189 (1924)).

Plaintiffs also seek to rely on City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985) for the proposition that governmental expressions of "irrational prejudice" against a subclass of people is invidious discrimination that may be addressed through the Equal Protection Clause. Cleburne involved a city's denial of an application for a permit for operation of a home for the mentally retarded when the city permitted other forms of congregate living without requiring a special permit. Because the court could find no rational basis for treating the proposed home for the mentally retarded differently from all of the permitted congregate living arrangements, the court concluded that the zoning ordinance as applied was based upon an "irrational prejudice against the mentally retarded" and was invalidated as applied. Cleburne, 473 U.S. at 448-49.

Contrary to plaintiffs' contention, Cleburne does not stand for the proposition that all governmental regulations that are based upon "irrational prejudice" against an identifiable subclass violate the Equal Protection Clause. Cleburne is limited to its narrow facts and is not applicable to the present case where the individuals in the group affected by a law, nonresident hunters, cannot claim prejudice due to immutable physical or mental disabilities.

Defendants offer the following justification for the differential in classification and treatment of resident and non-resident hunters in the allocation of licenses:

First, the preference to residents encourages wildlife habitat management and increases the likelihood of cooperation and fraternity in wildlife management with the State. The preference encourages the resident landowner to allow public hunting which in turn aids in wildlife management by controlling the herd numbers. It also encourages the resident hunter to give local support to sound management and conservation practices.

Second, the preference to residents helps maintain proper herd sizes and sex ratios because a higher percentage of non-residents wish to kill males and a higher percentage of outfitted non-residents are successful in killing an animal than the same number of non-outfitted residents. (Affidavit of Harju.) The number of licenses to residents that allow residents to take females are determined by the previous years' success rate and the desired male/female ratio. (Affidavit of Harju.) If the success rate dramatically increases, then hunting is made more restrictive and the number of available licenses correspondingly decreases. (Affidavit of Harju.)

Brief of Game Fish Commissioners and Director at 24. These reasons indicate that preferences given to resident hunters help the state's management and conservation objectives.

The court finds these are plausible reasons that are relevant to the achievement of legitimate governmental ends for defendants' limiting the number of nonresident hunters. It is a legitimate governmental interest to conserve game and maintain male/female herd ratios. It is a legitimate governmental interest to maintain the quality of the hunting experience with long hunting seasons, uncrowded conditions and widely available licenses. It is a legitimate state purpose to encourage the conservation of game and preservation of wildlife habitat in the face of mounting pressure for development.

Plaintiffs generally slight the importance of resident hunters' support of political agendas that result in protected or improved game habitat at the expense of other forms of economic development. They point out the economic benefits of interstate hunting, especially the contribution of outfitted nonresident hunters, as important to Wyoming's and the nation's economies. They contend their evidence shows that the State of Wyoming, the resident landowners, and various supporting business could all make more money if more licenses were sold to outfitted nonresident hunters. In this connection plaintiffs contend that certain deposition testimony of the defendant Commissioners and of Department officials shows there is political pressure by residents to maintain the current licensing system. That testimony was to the effect that any changes to license allocations in favor of nonresidents and outfitters, who admittedly serve non-residents almost exclusively, would be met with pressure on the Legislature by residents to protect the general availability of licenses for residents. E.g. Cleveland Dep. at 48. Thus, plaintiffs seek to have this court evaluate the governmental action strictly in terms of bottom line dollars and cents. The argument would continue: if the government does not take action to maximize profits for industry (its outfitters), it must be the result of irrational prejudice in favor of some group (its residents).

Plaintiffs have ignored the economic contributions to local economies by resident hunters. See, O'Gara Aff. at ¶¶ 6-7 (in Laramie County, 95.7% of resident deer hunters and 99.4% of resident elk hunters hunt outside of Laramie County; in a 1990 survey of counties that accounted for more than half the resident hunters in the state, 50% or more elk and deer hunters hunted outside their counties of residence; resident hunters hunting outside their own county spend new dollars in those outside counties). In addition, they fail to consider economic impacts to the state of a change in spending by resident hunters if there is a change in the allocation system. See, O'Gara Aff. at ¶ 8 (alteration of the current system could reduce the success rates and opportunities for resident hunters, which might increase the number of residents that hunt and spend money out-of-state; abolishing the resident general license would impact local sporting goods stores that depend on not only direct income from the sale of resident general licenses but also on the increased secondary sales).

Outfitters also have political agendas and sufficient political clout to have achieved some of their goals through the Legislature and the Commission, e.g., requiring outfitters to guide hunters in wilderness areas, and moving the nonresident elk license draw to earlier in the year. We agree with Wyoming Wildlife Federation's position (in its amicus brief) that this court is not the appropriate vehicle for the Outfitters to achieve political aims that they have failed to get passed through the legislative or executive branches. Where citizens of a state are dissatisfied with regulatory action enacted by their own elected representatives, the role of the judiciary is limited and the primary avenue of redress is in the democratic process. South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 190-191 (1938).

It is natural to expect Wyoming residents who politically support wildlife programs, both by foregoing economic development and by allocating tax dollars, to expect that they, as residents, will primarily benefit. Government is not a business. Legitimate governmental goals can include intangibles such as quality of life and opportunities for its residents. Therefore it is not irrational or unrelated to legitimate governmental purposes for the Legislature and the Commission to decline to sell the opportunity to hunt to the highest bidder at every opportunity. Instead the defendants balance the competing interests involved in game conservation by offering quality hunts, general availability of inexpensive licenses over-the-counter for residents for certain species, incentives to landowners to allow general public access, carefully maintained male/female herd ratios, and a mix of limited and general herd management.

The court finds plausible defendants' assertion that the differential allocation scheme at issue furthers legitimate state interests. That different governmental actions could also conceivably achieve some or all of the objectives does not demonstrate that the governmental action at issue is irrelevant or unrelated to the achievement of the legitimate objective; instead it just demonstrates that there is a universe of possible governmental actions related to legitimate governmental goals.

In connection with the defendants' purpose of engendering resident support for sound management and conservation purposes, the court notes that in a geographically large state such as Wyoming which also contains a relatively small population, it would be impossible for officials to enforce game laws and regulations without broad-based support for such laws and anti-poaching programs. The general availability of elk and deer licenses for residents fosters a sense of self-interest in the resident hunter's voluntary compliance with such laws as well as the hunter's support of the enforcement of the laws against others, residents and nonresidents alike. And while the nonresidents support for game laws is also important, the cooperation, compliance and communication between the Department and the resident hunter are obviously invaluable tools for enforcement that is fostered by choosing to conserve game by limiting nonresident instead of resident elk and deer hunting licenses. This is the principle embodied in the defendants' articulation that the current "preference to residents encourages wildlife habitat management and increases the likelihood of cooperation and fraternity in wildlife management with the State." Defendants' Brief in support of Motion for Summary Judgment at 23-24.

Engendering local support for conservation programs might not by itself justify the differential in treatment. However, it supports other legitimate government purposes of limiting the numbers of animals harvested and maintenance of healthy male/female ratios.

Thus, plaintiffs' Equal Protection claims must fail — for the Outfitters and Outfitters Association for lack of standing and for the nonresident hunters because the Commissioners advance legitimate and rational bases for the regulations. Where such rational reasons are advanced, this court need not second guess the decision to see if a different method would have more closely fit the purpose advanced. See, Castillo, 140 F.3d 874, 883.

VII Applicability of the Dormant Commerce Clause

As plaintiffs, nonresident hunters are claiming that Wyoming's hunting license method excessively burdens interstate commerce in contravention of the dormant Commerce Clause. We are persuaded by the rationale of hunting license decisions in other states that nonresident hunters' dormant Commerce Clause claim must fail because game is not an article of commerce, and their activity has only minimal effect on the flow of interstate commerce.

In other In Terk v. Ruch, 655 F. Supp. 205 (D.Colo. 1987), Judge Matsch made the following ruling on the issue of the standing of a nonresident hunter to bring a Commerce Clause challenge against Colorado's hunting regulations restricting the number of nonresident sheep and Rocky Mountain goat licenses.

The plaintiff cites Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, for the proposition that the Commission's allocation system violates the Commerce Clause. In Hughes, the Court used the Commerce Clause to strike down an Oklahoma statute prohibiting the transportation of minnows out of state for purposes of sale. Hughes is completely dependent on the fact that the minnows were articles of commerce. Hughes v. Oklahoma, 441 U.S. at 338-339, 99 S.Ct. at 1737-1738. Sheep and Goat are not commerce. In fact, it is illegal to sell them. C.R.S. § 33-6-113. Moreover, Hughes was a commercial livelihood case; the Oklahoma statute interfered with the fundamental right to earn a living. Here, the parties agree that Sheep and Goat hunting is purely for sport. The Commerce Clause claim fails.

Terk, 655 F. Supp. at 215.

Similarly, in Shepherd v. Alaska Dept. of Fish and Game, 897 P.2d 33, (1995) the Alaska Supreme Court held that game was not an article of commerce, and the state's restrictions on nonresident hunting licenses was a legitimate state interest. In light of this the Alaska Supreme Court held that the effect of the nonresident restrictions on interstate commerce were "de minimus" and justified the restriction against a Commerce Clause challenge. Shepherd, 897 P.2d at 42.

In Wyoming as in Alaska: "All wildlife is the property of the state." Wyo. Stat. § 23-1-103 (1999). Game meat cannot be sold in Wyoming, a restriction that, similar to Colorado's restriction, applies evenhandedly between residents and nonresidents.

Thus, following Terk and Shepherd the Commerce Clause challenge brought by the nonresident hunters must fail because game is not an article of commerce, and any effect on interstate commerce as alleged by the nonresident hunters is de minimus.

If Outfitters or the Outfitters Association had established standing to challenge the statutes, the court would turn to the merits of their Commerce Clause challenge. Dorrance v. McCarthy, 957 F.2d 761 (10th Cir. 1992) examining Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) sets forth the standard for a Commerce Clause analysis:

In reviewing the propriety of the district courts ruling on Plaintiffs challenge to the Wyoming statutes, we are guided by the principles set forth by the Supreme Court in other Commerce Clause cases.

Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.

Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) (citation omitted). The person challenging a statute that regulates evenhandedly bears the burden of showing that the incidental burden on interstate commerce is excessive compared to the local interest. Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979).

By contrast, if a statute discriminates against interstate commerce either on its face or in its practical effect, it is subject to the strictest scrutiny, and the burden shifts to the governmental body to prove both the legitimacy of the purported local interest and the lack of alternative means to further the local interest with less impact on interstate commerce. Wyoming v. Oklahoma, 502 U.S. 437, [453-457], 112 S.Ct. 789, 799-801, 117 L.Ed.2d 1 (1992). "Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected," City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978).

* * *

By definition, a statute that regulates evenhandedly does not impose a different burden on interstate commerce than it does on intrastate commerce. Furthermore, the Supreme Court has made clear that the extent of the burden on interstate commerce is a key inquiry under the Pike analysis. See, e.g., Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 444-45, 98 S.Ct. 787, 795-96, 54 L.Ed.2d 664 (1978) (discussing evidence carrier presented that Wisconsin's double trailer ban increased the cost of moving goods, slowed the movement of goods, and disrupted the carrier's business, thereby imposing an excessive burden on interstate commerce in relation to the local benefit).

* * *

The Court held in Pike that "the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." 397 U.S. at 142, 90 S.Ct. at 847. . . .The Court has continued to consider the availability of less burdensome alternatives in analyzing Commerce Clause challenges to statutes that regulate evenhandedly. See, e.g., Northwest Cent. Pipeline Corp. v. State Corp. Comm'n, 489 U.S. 493, 526, 109 S.Ct. 1262, 1282, 103 L.Ed.2d 509 (1989) (considering and rejecting as unsupported by the evidence plaintiffs argument that regulation permanently cancelling producers' entitlements to assigned quantities of certain gas if production were delayed too long should be invalidated under Pike because state could achieve its goals without burdening interstate commerce).

Dorrance, 957 F.2d at 763-765,

In this case, the Court finds that the legislation is applied evenhandedly. This is not a case like Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 116 S.Ct. 1590 (1997) relied upon by plaintiffs, where there is a disparity of treatment based upon whether an organization serves residents or nonresidents. In Camps Newfound, a Maine property tax exemption statute singled out institutions that mostly served state residents for beneficial treatment with the result that institutions that mostly served nonresidents were penalized. In this case there is no evidence that any group benefits over the outfitters that serve primarily nonresident hunters.

Because the legislation is applied evenhandedly, and its effects on interstate commerce are only incidental, the court next examines whether that burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Pike, 397 US. at 142.

The court finds and concludes that maintenance and conservation of a healthy wildlife population is a legitimate local purpose. Having found a legitimate local purpose, the court next looks to whether the plaintiffs have presented evidence that created genuine issues of material fact as to whether the challenged regulations' burden on interstate commerce is "clearly excessive in relation to the putative local benefits," and finds that they have not.

The Outfitters contend, and support their contention with affidavit evidence, that they cannot compete regionally because the neighboring states, particularly Idaho and Montana, have set aside licenses for the benefit of their outfitters.²⁶ It is important to note that these set-aside licenses in our neighboring states are not for the benefit of all nonresident hunters in those states because they are not available to all nonresident hunters in those states on an equal basis. Instead, the process of setting aside licenses for nonresident hunters using outfitters are for the benefit, or protection, of a class of resident businesses, outfitters, that choose to cater to nonresident hunters. In determining whether a burden is "clearly excessive in relation to the putative local benefits" the court does not look to whether Wyoming provides its domestic industries protections or benefits equal to those enjoyed by domestic industries in other states,

26 A review of the hunting regulations on some of our neighboring states can be found in the appendix to a law review article critical of Wyoming's license allocation scheme. Peter C. Nicolaysen, Reserving Wildlife for Resident Consumption: Is the Dormant Commerce Clause the Outfitters' White Knight? 32 Land Water L. Rev. 125, 152 (1997) (arguing that Wyoming's current license allocation system violated Commerce Clause and inviting legislature to implement market driven license allocation scheme).

In this case the undisputed facts show the outfitting industry provides jobs and other economic benefits to the state of Wyoming. The undisputed facts also show the outfitters are hurt by their inability to compete regionally where the outfitting industry in neighboring states enjoy special protectionist legislation or rules in the form of hunting licenses specially set aside for their clients.

However, the Commerce Clause does not require that the State of Wyoming match or meet any protectionist or favoritism legislation in neighboring states. Similarly, the Commerce Clause does not provide authority for this federal court to tell the Legislature that it must enact legislation to protect or favor the outfitting industry because plaintiffs have proven that the outfitting industry is important to Wyoming's economy or because the court thinks it is fair to protect our industry because Montana protects its industry. What the Commerce Clause does is provide that the State of Wyoming cannot, by legislation, unduly burden interstate commerce. The Commerce Clause prohibits discrimination against interstate commerce, but it does not require that state legislatures enact nationally or regionally uniform laws on the availability of hunting licenses.

Here the evidence produced by plaintiffs on summary judgment does not show that the burden on interstate commerce imposed by the regulations is excessive. Nonresident hunters are not shut out of Wyoming. All of the nonresident general and limited quota hunting licenses that are offered for antlered animals each year are taken. Numerous hunting opportunities for antlerless animals are foregone by the nonresident hunters, which would increase their opportunities to hunt. The 6,000 cow/calf elk licenses that are not taken each year potentially affect all the statistics provided by plaintiffs and could nearly double the success rate of nonresident hunter applicants (conceivably close to 14,000 nonresident hunters could have a license, if they would take a cow/calf leftover license; close to 19,000 nonresidents apply each year for an elk license in Wyoming). The evidence is undisputed that the Legislature has passed legislation requested by the Outfitters for the purpose of supporting their business. See Wyo. Stat. § 23-2-401(a) (1999) (nonresident hunters in wilderness areas must use outfitters); and Harju 2nd Aff. at ¶ 11(J) (price of nonresident licenses increased at outfitters' request to try to reduce demand and thereby increase supply). Similarly, the evidence is undisputed that the Commission has responded to the needs of the outfitters by scheduling the draw for nonresident licenses in February, substantially earlier than it conducts the July drawing for resident limited quota elk and deer licenses. Id.

One can sympathize, as does the court, with the outfitters' predicament in competing against outfitters that are helped or favored in other states. However, helping, supporting, favoring or protecting a state's industry is uniquely the business of the duly elected representative branch of government. Certainly, the affidavits submitted by plaintiffs are compelling and may make a difference in the court of public opinion; they do not, however, provide a basis for declaring the statutes in question to be in violation of the Commerce Clause.

Ironically, one of the proposed solutions (putting residents and non-residents in a single draw) as a "less burdensome alternative" would not solve the main problem indicated by Outfitters' affidavits. Their main problem is that it can be feast or famine as to whether their customers draw licenses. Either they overbook their hunts and not enough of their customers draw licenses to make the hunt profitable, or they overbook and so many of their customers draw licenses that both the quality of the hunt and customers' satisfaction is sharply reduced. There has been little discussion from the parties concerning the efforts used to market outfitter services from the pool of successful applicants in the drawing (available online through the Departments website) and efforts to encourage nonresident hunters to use outfitters for antlerless big game hunts.

Although a single pool drawing for resident and nonresident hunters might marginally increase the odds or probability of any nonresident hunter to draw a license, it would do nothing to reduce the feast or famine, or lack of certainty problem of the outfitters. The unpredictability of a random draw is shown in plaintiffs' affidavits such as that of Mr. Orvis who had a high percentage of his booked nonresident hunters draw deer tags (68%) but did not have a single booked nonresident elk hunter draw a license. Orvis Decl. at ¶ 3.

The issue-after licenses are available on an evenhanded basis, neither favoring nor disfavoring nonresidents. The fact that this evenhanded availability does not come early enough for the outfitting industry to book hunts does not mean that the process excessively burdens interstate commerce. It just means that residents, because of physical proximity, may be better able to take advantage of licenses available late in the season. However, the Commerce Clause does not require that states legislate to eliminate or equalize the inherent advantages afforded residents because they may live closer to hunting areas than nonresidents. Further, there is no evidence to support plaintiffs' underlying assumption that residents are less likely than nonresidents to be required by employers to schedule their vacations in advance and therefore uniquely able to take advantage of licenses available at the fast minute.

In a real sense, plaintiffs' differences are with the Legislature and not the defendants. As noted in one outfitter's affidavit, the price of a license is a management tool not currently available to the Commission. Gilroy Decl. at ¶ 47. Similarly, the ability to change the ratio of resident/nonresident or to "set aside" a certain number of licenses for guided nonresidents is a power the Legislature has not conferred on the Commission. Even if they could, their testimony is that while setting aside licenses for the outfitted nonresident hunters may not have a major biological impact on herd management, they could not do so because (a) it would be unfair to other nonresident hunters and (b) their resident hunter constituency is opposed to providing advantages to nonresident hunters that might impact residents' access to hunting licenses. See infra at pp. 23-25. Again and again the outfitters have taken their case to the Legislature, and the Legislature has always refused to set aside licenses for the small class of outfitted nonresident hunters.

There is no single licensing method that will manage the state's wildlife and appropriately allocate resident and nonresident licenses. The varied interests of resident hunters, nonresident hunters, and resident outfitters dependent on nonresident clients must be balanced with the biological considerations of herd management and conservation. The court finds that the current method falls within the group of schemes that will accomplish the state's numerous legitimate interests.

Accordingly, and for the reasons stated above, it is therefore

ORDERED that defendants' motion for summary judgment and motion to dismiss shall be, and is, GRANTED. It is further

ORDERED that plaintiffs' motion for summary judgment shall be, and is DENIED. It is further

ORDERED that all other pending motions (including defendants' motion in limine to exclude evidence) are hereby DENIED AS MOOT. It is further

ORDERED that judgment shall be entered in favor of all defendants on all claims asserted against the defendants by plaintiffs, with the parties to bear their own costs and attorneys' fees.