October 14, 2019

Should the Commerce Clause Apply To Hunting?

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The so-called and much abused, in my opinion, commerce clause, a part of the U.S. Constitution that in its most basic interpretation says that no one should be restricted in doing business from one state to another. Sounds simple enough, right? What that means is if your friend John Smith is selling beaver pelts in Vermont and you live in Maine, you should be able to go to Vermont and sell beaver pelts too.

But what about hunting and trapping as a business. Not the selling of furs but the actual act of hunting or trapping, or fishing for that matter? Let me give you an example. Maine’s deer hunting season opens on a Saturday. That opening day is for residents only. If you’re an out-of-state hunter, you have to wait until the following Monday. Does this violate the commerce clause? If you’re a guide living in Pennsylvania and you have clients from Texas who want to go to Maine and hunt that opening Saturday, shouldn’t they be allowed to under the commerce clause?

Let’s look at it from another angle. Let’s take the state of North Dakota. In North Dakota it is legal for you to hunt ducks on your land without a license if you are a resident of the state. When duck season opens, the first week is exclusively for the residents of North Dakota. Again, the question is, does that violate the commerce clause? Here’s a sticky wicket. It is legal, as I said, to hunt ducks on your own land without a license. But it illegal to hunt ducks on land you might own in North Dakota if you are a resident of another state. You can hunt ducks on your land after the first week of duck season and if you buy a license to do it. Is this discrimination and does it violate the commerce clause?

There are two issues here that are being challenged in North Dakota in the 8th U.S. District Court of Appeals. The two issues are discrimination and violation of the commerce clause.

You don’t need to be a business scholar to realize that hunting, trapping and fishing are all big business, bringing billions of dollars annually into the pockets of everyone. The courts recognize that and it will be interesting to see how the court is going to rule on this issue of commerce.

The discrimination suit may be more difficult to prove but if the courts rule in favor of the plaintiff, this will set a precedence that could have a sweeping affect all across the country. I’ll do my best to stay on top of this ruling.

Tom Remington

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