State of Minnesota v. John Hoeven

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 05-3012
___________

State of Minnesota, by its Attorney *
General, Mike Hatch; Collin Peterson; *
Starkey Grove; Charles Orvik, *
*
Plaintiffs-Appellants, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
John Hoeven, in his Official Capacity *
as Governor of the State of North *
1
Dakota; Terry Steinwand , in his *
Official Capacity as Director of the *
North Dakota Game and Fish *
Department, *
*
Defendants-Appellees. *
___________

Submitted: March 24, 2006
Filed: August 3, 2006
___________

Before RILEY, BRIGHT, and SMITH, Circuit Judges.
___________

1
Pursuant to Fed. R. App. P. 43(c)(2), Terry Steinwand is substituted for Dean
C. Hildebrand.
BRIGHT, Circuit Judge.

North Dakota law drastically restricts hunting privileges of nonresidents as
compared to North Dakota residents. Some of those restrictions have come under
attack in this lawsuit as invalid under the United States Constitution. Representatives2
of the neighboring state of Minnesota (collectively “Minnesota”) brought this action
against defendants3, officials of the State of North Dakota (collectively “North
Dakota”). The district court4 rejected the Minnesota claims and granted summary
judgment of dismissal in favor of North Dakota. Minnesota appeals. We affirm the
judgment but do so in part on grounds other than those relied on by the district court.

I. BACKGROUND

Tourism ranks as the second-largest and fastest-growing industry in North
Dakota, contributing about $3 billion each year to the State’s economy. The North
Dakota Department of Tourism promotes the State’s “legendary hunting and fishing”
in its website and advertises through national print, radio, and television media.

About 52,000 nonresidents hunted in North Dakota in 2001, roughly thirty-
seven percent of its hunters that year. During 2001, nonresident waterfowl hunters
took approximately 36,000 trips to North Dakota, spending an estimated 147,000 days

2
Attorney General, Mike Hatch, for the State of Minnesota, and Minnesota
residents Congressman Collin Peterson, Starkey Grove, and Charles Orvik.
3
John Hoeven, in his capacity as Governor of North Dakota, and Terry
Steinwand, in his capacity as Director of the North Dakota Game and Fish
Department.
4
Daniel L. Hovland, Chief Judge, United States District Court for the District
of North Dakota.

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there. While in North Dakota for the 2001-2002 season, nonresident waterfowl
hunters spent around $21 million in direct expenditures such as food, lodging, and
equipment. Nonresident hunters also generated an estimated 1,300 full-time jobs,
nearly $2 million in North Dakota tax collections, $79 million in gross business
volume, and $45 million in secondary economic effects.

In April 2001, an issue arose in the North Dakota Legislative Assembly
between resident hunters who wanted restrictions on the hunting of waterfowl by
nonresidents and business people who profit from the patronage of nonresident
hunters. The Assembly directed the legislative council to study this issue. The
assigned committee reported that the number of nonresident waterfowl hunters had
grown from about 5,500 hunters in 1990 to 30,000 hunters in 2001. The committee
further reported that resident hunters primarily complained about competition they
faced from nonresidents in access to hunting land. “[T]here is only so much good
hunting land that is available to be acquired for hunting access.” (Appellants’ J.A. at
430.) The committee recommended restricting nonresident hunting of waterfowl
within North Dakota.

Several restrictions on nonresident hunting followed the study, particularly in
the hunting of waterfowl. First, North Dakota excluded nonresidents from hunting
during the opening week of waterfowl season in “Amendment One to the 2003-2004
Small Game - Furbearer Proclamation,” which has the force of law. See N.D. Cent.
Code § 20.1-08-01. Second, North Dakota excluded nonresidents from all hunting,
including of waterfowl, during the first week of pheasant season on land owned by the
North Dakota Game and Fish Department, private land regulated by the Department
for hunting purposes, and land for which the Department provides “in lieu of tax”
payments. See N.D. Cent. Code § 20.1-08-04.9 (effective August 1, 2003);
Amendment One to the 2003-2004 Small Game - Furbearer Proclamation. Third,
North Dakota raised its license fees for nonresidents who must now pay $85 for a

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waterfowl license (up from $10) and another $85 for a small game5 license (up from
$75) if they also wish to hunt pheasants and grouse. See N.D. Cent. Code § 20.1-03-
12 (amended in 2003). By contrast, residents do not have to buy a separate license to
hunt waterfowl together with pheasants and grouse, but must only purchase one small
game license costing $6. See id.; N.D. Cent. Code § 20.1-03-03. Finally, even before
2003, North Dakota exempted residents and any member of the resident’s family
residing with the resident to hunt in season without a license on land they own or
lease. See N.D. Cent. Code §§ 20.1-03-03, -04(1).

Minnesota filed this action seeking declaratory judgment and to enjoin these
hunting laws to the extent they favor North Dakota residents. Minnesota’s amended
complaint, filed April 12, 2004, alleged among other things that each of these laws
violates the Commerce Clause, Art. I, § 8 of the United States Constitution. Further,
Minnesota alleged that N.D. Cent. Code §§ 20.1-03-03, -04(1), permitting residents
and any member of the resident’s family residing with the resident to hunt in season
without a license on land they own or lease, violates the Privileges and Immunities
Clause, Art. IV, § 2 of the United States Constitution.

On January 27, 2005, Minnesota filed a motion seeking summary judgment on
its Commerce Clause claim. On February 25, 2005, North Dakota filed a cross-
motion seeking summary judgment on the merits of Minnesota’s claims under the
Commerce Clause and Privileges and Immunities Clause.

Further, on May 12, 2005, North Dakota filed a motion to dismiss Minnesota’s
Commerce Clause claim as moot based on the “Reaffirmation of State Regulation of

5
N.D. Cent. Code § 20.1-01-02(45) defines “small game” to include “all game
birds and tree squirrels.” Section 20.1-01-02(16) defines “game birds” to include “all
varieties of geese, brant, swans, ducks, plovers, snipes, woodcocks, grouse, sagehens,
pheasants, Hungarian partridges, quails, partridges, cranes, rails, coots, wild turkeys,
mourning doves, and crows.”

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Resident and Nonresident Hunting and Fishing Act of 2005,” Section 6063 of House
Bill 1268, approved by the United States Congress and signed into law on May 10,
2005.

On June 8, 2005, the district court denied Minnesota’s motion for summary
judgment, granted North Dakota’s cross-motion for summary judgment, and denied
North Dakota’s motion to dismiss. Minnesota ex rel. Hatch v. Hoeven, 370 F. Supp.
2d 960, 962, 973 (D.N.D. 2005). On Minnesota’s Commerce Clause claims, the court
reasoned that North Dakota does not regulate “persons in commerce” or activity
“substantially affect[ing] interstate commerce.” Id. at 969, 971. The court considered
it “unnecessary to address the merits of North Dakota’s Motion to Dismiss other than
to note that Congressional interpretation of what is and is not interstate commerce is
not controlling on the judicial branch.” Id. at 973 (citing United States v. Lopez, 514
U.S. 549, 557 n.2 (1995)).

On Minnesota’s Privileges and Immunities Clause claim, the court considered
“the reasoning of the United States Supreme Court . . . in Baldwin [v. Fish & Game
Commission of Montana, 436 U.S. 371 (1978)] . . . equally applicable to the current
dispute,” id. at 967, and dismissed this Minnesota contention.

On July 7, 2005, Minnesota filed a notice of appeal “from the final judgment
. . . granting Defendants’ Motion for Summary Judgment and denying Plaintiffs’
Motion for Summary Judgment.”6

6
The States of South Dakota, Alaska, Colorado, Kansas, Montana, Nebraska,
Nevada, Utah, and Wyoming have jointly filed an amicus curiae brief in support of
North Dakota. These states are among the many states, including Minnesota, which
extend residents preferred access to hunting and fishing opportunities. See, e.g.,
Alaska Stat. § 16.05.255(d) (Michie 2004) (granting preference to residents in the
taking of moose, deer, elk and caribou); Ariz. Admin. Code § R12-4-114 (2005)
(restricting hunting of buffalo and bighorn sheep by nonresidents); Cal. Fish & Game
Code §§ 331(a), 332(b) (2005) (limiting licenses for antelope and elk to residents

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only); 2 Colo. Code Regs. § 406-2 (2006) (limiting licenses for nonresident hunters
to no more than ten percent of available moose, bighorn sheep, and mountain goat
licenses); Fla. Admin. Code Ann. r. 68A-5.005 (2006) (limiting nonresidents to ten
percent of special-opportunity hunting permits); Idaho Code § 36-408(2) (Michie
2005) (authorizing Fish and Game Commission to limit or prohibit nonresidents from
participation in controlled hunts); Ill. Admin. Code tit. 17, § 670.20 (2005) (limiting
the number of nonresident archery deer permits); Iowa Code Ann. §§ 483A.7, 483A.8
(West 2006) (limiting the number of nonresident turkey and deer permits); Kan. Stat.
Ann. § 32-937(l) (2005) (limiting the number of nonresident deer permits); Me. Rev.
Stat. Ann. tit. 12, §§ 11152(3), 11154(2) (West 2006) (limiting the number of
nonresident licenses for antlerless deer and moose); Md. Code Ann. Nat. Res.
§§ 10-604(f), 10- 605(d), 606(e) (2006) (restricting hunting of waterfowl by
nonresidents); Minn. Stat. § 97A.475(1)-(3) (2006) (limiting moose, elk, and prairie
chicken licenses to residents only); Mont. Code Ann. § 87-2-506(2) (2005) (limiting
nonresidents to ten percent of big game licenses when applications exceed the number
to be issued); Neb. Rev. Stat. § 37-447(5) (2006) (authorizing deer hunting permits
for nonresidents after preference has been given to resident hunters); Neb. Rev. Stat.
§§ 37.450 (2006) (restricting elk permits to residents); Nev. Rev. Stat. § 502.147
(2005) (limiting the number of nonresident deer tags); Nev. Rev. Stat. § 502.250
(2005) (establishing different fees for resident and nonresident hunting; for example,
a resident deer tag costs $30 while a nonresident deer tag costs $240); N.H. Code
Admin. R. Ann. Fish 301.09(1)(2)(f) (2006) (limiting the number of nonresident
moose permits); N.M. Stat. Ann. § 17-3-16 (2006) (limiting nonresidents to twenty-
two percent of the licenses for hunting on public lands); N.Y. Envtl. Conserv. Law §
11-0913 (McKinney 2006) (authorizing resident preference for deer permits); Or. Rev.
Stat. § 497.112(1), (7), (8), (9) (2005) (limiting number of nonresident tags in
controlled hunts for mountain goat, mountain sheep, black bear, cougar, antelope, elk,
and deer and establishing different tag fees for residents and nonresidents); S.D.
Codified Laws § 41-6-18.1 (2005) (limiting ten-day nonresident waterfowl licenses
to four thousand per year); S.D. Codified Laws § 41-6-18.4 (2005) (restricting areas
in which nonresidents may hunt with three-day waterfowl licenses); S.D. Codified
Laws § 41-6-19.3 (2005) (granting preference to certain resident landowners and
lessees for deer and antelope permits); 2005 Utah Big Game Proclamation (restricting
nonresident hunting permits as compared to residents and charging greater permit
fees), available at http://www.wildlife.utah.gov/proclamations/2005_biggame/; Vt.
Stat. Ann. tit. 10 § 4081(g)(2) (2005) (limiting nonresidents to ten percent of antlerless

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 Minnesota on its appeal raises two issues: (1) that North Dakota’s waterfowl
hunting restrictions violate the dormant Commerce Clause, Art. I, § 8, of the United
States Constitution (Appellants’ Op. Br. at 25), and (2) North Dakota’s authorizing
residents to hunt in season on land they own or lease without a license denies
nonresident landowners the same use and enjoyment of their property in violation of
the Privileges and Immunities Clause, Art. IV, § 2, of the United States Constitution
(Appellants’ Op. Br. at 16, 20-21).

North Dakota in response rejects the dormant Commerce Clause contentions
and separately denies the Privileges and Immunities Clause claim. North Dakota
asserts that an enactment by the United States Congress, House Bill 1268, in May
2005, renders the dormant Commerce Clause claim constitutionally moot. North
Dakota in this appeal also asserts that Minnesota has waived the Privileges and
Immunities Clause claim, and alternatively that Minnesota’s claim does not impinge
on a privilege or immunity protected by Article IV, Section 2 of the United States
Constitution.

In this opinion, we briefly discuss the dormant Commerce Clause issue and
determine that United States Congressional action has made Minnesota’s contention
constitutionally moot. We reach and discuss the Privileges and Immunities Clause
and determine its provisions do not provide Minnesota any relief. Thus, we will
affirm the judgment of dismissal.

deer permits); W. Va. Code § 20-2-42n (2006) (establishing different fees for hunting
of antlerless deer by residents and nonresidents); Wis. Stat. §§ 29.164(3), 29.177(5)
(2005) (establishing resident preference categories for awarding deer and wild turkey
licenses); Wyo. Admin. Code Game Hunt Ch. 6 § 5 (2005) (establishing quotas for
nonresident deer licenses).

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II. DISCUSSION

We review de novo a district court’s grant of summary judgment. Donovan v.
Harrah’s Md. Heights Corp., 289 F.3d 527, 528 (8th Cir. 2002). Summary judgment
shall be granted “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).

A. Commerce Clause, Art. I, § 8

Minnesota claims that North Dakota’s preference for residents over
nonresidents in its hunting laws violates the Commerce Clause, Art. I, § 8, of the
United States Constitution. The Commerce Clause provides, “Congress shall have
Power . . . [t]o regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes.” U.S. Const. Art. I, § 8.

Although the Commerce Clause reads as an affirmative grant of regulatory
power to Congress, the Supreme Court has read into this language a “negative” or
“dormant” component that grants courts the power to invalidate state laws that
discriminate against interstate commerce. See Camps Newfound/Owatonna, Inc. v.
Town of Harrison, 520 U.S. 564, 571-72 (1997). A dormant Commerce Clause
analysis asks whether the state’s law discriminates against interstate commerce and
whether sufficient justification exists for the burden imposed. See Smithfield Foods,
Inc. v. Miller, 367 F.3d 1061, 1065 (8th Cir. 2004).

The record in this case clearly shows nonresident hunting means big business
for North Dakota and its residents. However, we need not reach the merits of
Minnesota’s claim that North Dakota’s restrictions on nonresident hunting violate the
dormant Commerce Clause.

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 On May 10, 2005, the President signed into law House Bill 1268, the
“Emergency Supplemental Appropriations Act for Defense, the Global War on Terror,
and Tsunami Relief, 2005.” Although seemingly unrelated to the general thrust of the
legislation, Section 6063 of House Bill 1268 specifically addresses the issue raised in
this appeal, providing:

(a) SHORT TITLE. – This section may be cited as the “Reaffirmation of
State Regulation of Resident and Nonresident Hunting and Fishing Act
of 2005”.
(b) Declaration of Policy and Construction of Congressional Silence –
(1) IN GENERAL. – It is the policy of Congress that it is in the public
interest for each State to continue to regulate the taking for any purpose
of fish and wildlife within its boundaries, including by means of laws or
regulations that differentiate between residents and nonresidents of such
State with respect to the availability of licenses or permits for taking of
particular species of fish or wildlife, the kind and numbers of fish and
wildlife that may be taken, or the fees charged in connection with
issuance of licenses or permits for hunting or fishing.
(2) CONSTRUCTION OF CONGRESSIONAL SILENCE. – Silence on
the part of Congress shall not be construed to impose any barrier under
clause 3 of Section 8 of Article I of the Constitution (commonly referred
to as the “commerce clause”) to the regulation of hunting or fishing by
a State or Indian tribe.

In Schutz v. Thorne, 415 F.3d 1128, 1130, 1137-38 (10th Cir. 2005), the Tenth
Circuit considered the effect of Section 6063 on a dormant Commerce Clause
challenge to Wyoming giving residents preferred access to recreational hunting. The
court concluded Section 6063 made the claim constitutionally moot, which results
“‘when the issues presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome.’” Id. at 1138 (quoting County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979)). The court explained that “[t]he essential element
of a successful dormant Commerce Clause claim is congressional inaction, so when
Congress does act, the dormancy ends, thus leaving the courts obliged to follow

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congressional will.” Id. “Thus, when Congress acted to confirm the rights of states
to regulate these activities, Schutz’s claim ended.” Id.

We agree with the Tenth Circuit’s reasoning. Minnesota’s dormant Commerce
Clause claim ended with the passage of the “Reaffirmation of State Regulation of
Resident and Nonresident Hunting and Fishing Act of 2005.”7 See id.; also
Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 790 (8th Cir. 2004) (“Federal
courts are not empowered to give opinions upon moot questions . . . .”) (internal
quotations omitted).

The district court misread United States v. Lopez, 514 U.S. 549 (1995),
reasoning “Congressional interpretation of what is and is not interstate commerce is
not controlling on the judicial branch.” See Hoeven, 370 F. Supp. 2d at 973. Lopez
did not challenge state law under the dormant Commerce Clause. Rather, Lopez
presented a “positive” Commerce Clause challenge, asking whether Congress
regulated beyond the scope of its authority in passing the Gun-Free School Zones Act
of 1990. See 514 U.S. at 551. On that question, the Supreme Court reasoned that

7
We do not decide whether North Dakota should have cross-appealed the denial
of its motion to dismiss this claim as moot. As Schutz observed, “the case and
controversy ‘must be extant at all stages of review, not merely at the time the
complaint is filed.’” 415 F.3d at 1138 (quoting Arizonans for Official English v.
Arizona, 520 U.S. 43, 67 (1997)). We also note that prior to the enactment of House
Bill 1268, courts had disagreed on whether restricting nonresident hunting in favor of
residents discriminates against interstate commerce. Compare Conservation Force,
Inc. v. Manning, 301 F.3d 985, 988, 1000 (9th Cir. 2002) (concluding Arizona’s
restrictions on nonresident hunting substantially affected and discriminated against
interstate commerce and remanding for the district to decide whether the restrictions
had the requisite justification) with Schutz v. Wyoming, No. 02-CV-165-D (D. Wyo.
May 29, 2003) (concluding the Ninth Circuit wrongly decided Conservation Force and
“the dormant Commerce Clause [did] not appl[y] to Wyoming’s big game statutes”).

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Congress could not decide the outer limits of its power to regulate interstate
commerce. See id. at 556-58 & n.2.

With respect to the dormant Commerce Clause, the Supreme Court has held,

Our decisions do not, however, limit the authority of Congress to
regulate commerce among the several States as it sees fit. In the exercise
of this plenary authority, Congress may “confe[r] upon the States an
ability to restrict the flow of interstate commerce that they would not
otherwise enjoy.” If Congress ordains that the States may freely regulate
an aspect of interstate commerce, any action taken by a State within the
scope of the congressional authorization is rendered invulnerable to
Commerce Clause challenge.

Western & Southern Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648,
652-53 (1981) (internal citations omitted). The district court need not have reached
the merits of Minnesota’s claim under the dormant Commerce Clause. We make it
crystal clear that we do not reach nor decide the merits of the dormant Commerce
Clause issue in this case.

Minnesota also contends that Section 6036 does not apply to migratory
waterfowl passing through North Dakota. This argument contradicts the plain
meaning of Section 6036, which states, “It is the policy of Congress that it is in the
public interest for each State to continue to regulate the taking for any purpose of fish
and wildlife within its boundaries . . . .” Further, Minnesota did not develop this
argument and define “boundaries” in a way that excludes migratory wildlife located
by hunters in North Dakota. Instead, Minnesota simply commented that North Dakota
does not “own” or “possess” migratory waterfowl.

Finally, Minnesota argues Congress did not follow the regular authorization
process by attaching Section 6036 to an important appropriations bill. As part of an
appropriations bill, Minnesota argues that Section 6036 provided a temporary measure
that lasted for one fiscal year, at most. This argument loses force where, as here, the

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disputed section does not relate to appropriations and spending, which generally
occurs in a fiscal cycle. Cf. Bldg. & Constr. Trades Dep’t, AFL-CIO v. Martin, 961
F.2d 269, 274 (D.C. Cir. 1992) (“[A] provision contained in an appropriations bill
operates only in the applicable fiscal year, unless its language clearly indicates that it
is intended to be permanent.”); United States v. Int’l Bus. Machines Corp., 892 F.2d
1006, 1008-09 (Fed. Cir. 1989).

To bolster its argument, Minnesota observes that Section 6036 has not been
codified in the United States Code and the conference report on House Bill 1268
expressed a need for expedient action, stating “State fish and wildlife agencies will
soon be considering regulations for coming seasons, and it is important that questions
about their authority be resolved without unnecessary delay.” 151 Cong. Rec. H2997-
02, at 3023 (2005). However, we need not decide today whether Section 6036 will
forever preclude challenges to restrictions on nonresident hunting under the dormant
Commerce Clause. It is sufficient for this court to determine its application to this
litigation.

We have no doubt Congress intended Section 6036 to apply here. Section 6036
arose in response to Conservation Force, Inc. v. Manning, 301 F.3d 985 (9th Cir.
2002). See 151 Cong. Rec. H2997-02, at 3023 (2005). The committee report
expressed concern that the Ninth Circuit’s decision “could have an effect on the
thinking of Federal courts across the country.” Id.

As the district court observed, Minnesota modeled its dormant Commerce
Clause claim after Conservation Force. See 370 F. Supp. 2d at 971. Then, while the
parties had motions for summary judgment on the issue pending before the district
court, the President signed Section 6036 into law as part of House Bill 1268. In this
context, the language of futurity contained in Section 6036 certainly applies. See
§ 6036(b)(1) (“It is the policy of Congress that it is in the public interest for each State
to continue to regulate the taking for any purpose of fish and wildlife within its
boundaries, including by means of laws or regulations that differentiate between

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residents and nonresidents of such State . . . .”) (emphasis added); § 6036(b)(2)
(“Silence on the part of Congress shall not be construed to impose any barrier under
clause 3 of Section 8 of Article I of the Constitution (commonly referred to as the
‘commerce clause’) to the regulation of hunting or fishing by a State or Indian tribe.”)
(emphasis added).

B. Privileges and Immunities Clause, Art. IV, § 2

Minnesota also claims that North Dakota’s statutes authorizing residents to hunt
without a license on land they own or lease violates the Privileges and Immunities
Clause, Art. IV, § 2, of the United States Constitution, which states, “The Citizens of
each State shall be entitled to all Privileges and Immunities of Citizens in the several
States.”8

Whether differential treatment of out-of-state residents violates this Clause
involves a two-part inquiry: (1) whether the state’s law discriminates against out-of-
state residents with regard to a privilege or immunity protected by the Clause, and (2)
if so, whether sufficient justification exists for the discrimination. See United Bldg.
& Constr. Trades Council of Camden County & Vicinity v. Mayor & Council of the
City of Camden, 465 U.S. 208, 218, 221-23 (1984). We do not reach the second
prong.

In Baldwin v. Fish & Game Commission of Montana, 436 U.S. 371 (1978), the
Supreme Court considered whether Montana’s preference for residents in access to
recreational elk hunting violated the Privileges and Immunities Clause. The Court
explained the limited reach of this constitutional provision, “Only with respect to

8
We note that we address this issue, although not briefed by Minnesota in the
district court. Minnesota raised this Privileges and Immunities claim in its amended
complaint, North Dakota briefed the issue with its motion for summary judgment, and
the district court ruled on the claim. See Struempler v. Bowen, 822 F.2d 40, 42 (8th
Cir. 1987); Harrell v. 20th Century Ins. Co., 934 F.2d 203, 206 n.1 (9th Cir. 1991).

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those ‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single
entity must the State treat all citizens, resident and nonresident, equally.” Id. at 383.
The Court’s rationale and decision are instructive here,

Elk hunting by nonresidents in Montana is a recreation and a sport. In
itself–wholly apart from license fees–it is costly and obviously available
only to the wealthy nonresident or to the one so taken with the sport that
he sacrifices other values in order to indulge in it and to enjoy what it
offers. It is not a means to the nonresident’s livelihood. The mastery of
the animal and the trophy are the ends that are sought; appellants are not
totally excluded from these. The elk supply, which has been entrusted
to the care of the State by the people of Montana, is finite and must be
carefully tended in order to be preserved.
Appellants’ interest in sharing this limited resource on more equal
terms with Montana residents simply does not fall within the purview of
the Privileges and Immunities Clause. Equality in access to Montana elk
is not basic to the maintenance or well-being of the Union. Appellants
do not–and cannot–contend that they are deprived of a means of a
livelihood by the system or of access to any part of the State to which
they may seek to travel. We do not decide the full range of activities that
are sufficiently basic to the livelihood of the Nation that the States may
not interfere with a nonresident’s participation therein without similarly
interfering with a resident’s participation. Whatever rights or activities
may be “fundamental” under the Privileges and Immunities Clause, we
are persuaded, and hold, that elk hunting by nonresidents in Montana is
not one of them.

Id. at 388.

Just like Montana elk hunting, waterfowl hunting in North Dakota is a
recreation and a sport. Waterfowl hunting does not provide a means to the
nonresident’s livelihood. Equality in access to North Dakota waterfowl does not
constitute a fundamental right basic to the maintenance or well-being of the Union.

Minnesota recognizes Baldwin’s authority but seeks to distinguish the Court’s
precedent through a property rights’ analysis. Baldwin stated that the Privileges and

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Immunities Clause protects rights “in the ownership and disposition of privately held
property within the State.” 436 U.S. at 383 (citing Blake v. McClung, 172 U.S. 239
(1898)). Minnesota contends that North Dakota interferes with nonresidents’ property
rights by preventing nonresidents who own or lease land in North Dakota from
hunting on their land on the same terms enjoyed by resident owners and lessees.
Baldwin did not address whether hunting constitutes a stick in the bundle of property
rights accompanying land ownership.

We look to North Dakota law in deciding whether the purchase or lease of land
within the State confers a property right to hunt on that land. See Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are
not created by the Constitution. Rather they are created and their dimensions are
defined by existing rules or understandings that stem from an independent source such
as state law–rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.”); Clajon Prod. Corp. v. Petera, 70 F.3d 1566,
1575-76 (10th Cir. 1995) (reviewing Wyoming law on “whether a landowner has a
property right to hunt surplus game that may be found on his or her land”); State v.
Butler, 587 So. 2d 1391, 1392 (Fla. Dist. Ct. App. 1991) (“Whether there is a property
interest in wildlife is a matter of state law. See Davis v. Scherer, 468 U.S. 183
(1984).”).

“At common law, a landowner traditionally had the right to hunt wild animals
on his or her land.” Clajon, 70 F.3d at 1575. North Dakota, by contrast, commits the
hunting and taking of wildlife to State regulation for the public good. See N.D. Const.
Art. XI, § 27; N.D. Cent. Code § 20.1-01-03. The statutes prescribe a procedure by
which the State establishes the manner, places, and times in which each species of
wildlife may be taken or possessed and in what numbers. See N.D. Cent. Code §
20.1-08-04. Further, except under certain statutory exceptions, residents and
nonresidents may not hunt or fish within North Dakota without a statutorily prescribed
license. See N.D. Cent. Code. §§ 20.1-03-03, -07.

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 The Supreme Court of North Dakota has affirmed the authority of this statutory
scheme, which places hunting and fishing in the arms of the State. See State ex rel.
Stuart v. Dickinson Cheese Co., 200 N.W.2d 59, 61 (N.D. 1972) (“As sovereign, the
State has the power to determine when and under what conditions fish running wild
may be taken and thus reduced to ownership . . . .”); State v. Hastings, 41 N.W.2d
305, 308 (N.D. 1950) (“From a consideration of the foregoing statutes it is apparent
that no person in this state can acquire title to or the right to sell muskrat pelts unless
such pelts are those of animals taken in open season and that pelts of animals taken
out of season are subject to seizure by the state or are contraband as alleged in the
information.”).

We recognize that North Dakota Century Code § 20.1-03-04 provides, “Any
resident, or any member of the resident’s family residing customarily with the
resident, may hunt small game, fish, or trap during the open season without a license
upon land owned or leased by the resident.” However, this statute does not
discriminate against nonresidents with respect to a fundamental right existing in
property. Rather, it discriminates against nonresident participation in recreational
hunting, which the United States Constitution does not protect under Article IV, § 2.

The limited authorization to hunt without a license provided under this statute
comes as a matter of legislative grace in connection with the general prohibition
against residents hunting without a license. See N.D. Cent. Code § 20.1-03-03
(stating no resident may hunt without a license except as provided in § 20.1-03-04).
If the resident property owner violates certain laws, the State may revoke the
resident’s hunting privileges. See N.D. Cent. Code § 20.1-01-26 (stating hunting
privileges may be suspended upon conviction under this title [, Game, Fish, Predators,
and Boating]); § 20.1-01-26.1 (stating no person may hunt while the person’s hunting
privileges are suspended). Further, Section 20.1-03-04 confers no rights upon the
resident should North Dakota decide to revoke this exception and require a license for
all hunting within the State.

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 Minnesota refers us to Paul v. Virginia, 75 U.S. 168, 180 (1868); Corfield v.
Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3230); and Blake v. McClung,
172 U.S. 239, 258 (1898). Consistent with Baldwin, these cases recognize that the
Privileges and Immunities Clause protects property rights. However, they do not
establish hunting constitutes a part of the bundle of property rights accompanying the
ownership or lease of land.

III. CONCLUSION

For the reasons stated above, we affirm the district court’s entry of judgment
for the defendants.9
______________________________

9
As stated in the opinion, we did not address the merits of Minnesota’s dormant
Commerce Clause claim because of the mootness “safe harbor” resulting from action
of the United States Congress. The application of the “safe harbor” for the future also
has not been reached. In light of the uncertainties, the state officials in Minnesota and
North Dakota may well consider discussing the issue and seeking a satisfactory
resolution, rather than litigating further.

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