concurring in part.
I concur in the majority view that judgment of conviction for outfitting without a license must be affirmed. Of the three issues defendant presents on appeal, the issue of entrapment is adequately discussed by the majority. Whether the Outfitters and Guides Act (the Act) applies to activities on private lands, and whether the Act is constitutional are issues which merit further discussion. A point of interest is the unnecessary killing of the deer, supposedly done to enhance the case against Roller, which the state was deliberately manufacturing after it became aware of his advertising.
The entire policy statement introducing the black letter law of the Act makes it abundantly clear that a primary legislative intent of the Act is to safeguard the health, safety, and welfare of the general public, both Idaho residents and nonresidents, whether on private land or public land being of no moment. Idaho Code § 36-2101, Declaration of policy states:
The natural resources of the state of Idaho are an invaluable asset to every *412community in which they abound. Every year, in rapidly increasing numbers, the inhabitants of the state of Idaho and nonresidents are enjoying the recreational value of Idaho’s mountains, rivers and streams, many of which are far remote and removed from ordinary auto travel. The tourist trade is of vital importance to the state of Idaho, and the recreational value of these natural resources is such that the number of persons who are each year participating in their enjoyment is steadily increasing. The intent of this legislation is to promote and encourage residents and nonresidents alike to participate in the enjoyment and use of the mountains, rivers and streams of Idaho, and the fish and game therein, and to that end to regulate and license those persons who undertake for compensation to provide equipment or personal services to such persons, for the explicit purpose of safeguarding the health, safety, welfare and freedom from injury or danger of such persons, in the exercise of the police power of this state. It is not the intent of this legislation to interfere in any way with the business of livestock operations, nor to prevent the owner of pack animals from using same to accommodate friends where no consideration is involved for the use thereof, nor is it the intent of this legislation to interfere in any way with the right of the general public to enjoy the recreational value of Idaho’s mountains, rivers and streams when the services of commercial outfitters and guides are not utilized, nor to interfere with the right of the United States to manage the public lands under its control.
(Emphasis added).
Idaho’s fish and game abound in the deserts, fields, hills, mountains, rivers, streams, lakes and reservoirs of the state, whether these realms be privately or publicly owned. The public pursues the benefits of Idaho’s wildlife and natural resources in hunting, fishing, camping, and other types of expeditions. These expeditions are not without dangers inherent in traversing difficult terrain and waterways, facing extremes of weather, and transporting and using rifles, knives, and other necessary paraphernalia without due care. What is of some moment is that people who become involved are often unaware or inexperienced in coping with these dangers, and necessarily rely on licensed commercial outfitters and guides. Thus it has been legislatively deemed necessary that commercial outfitters and guides, who undertake such business for a monetary consideration, meet certain standards and be licensed accordingly. Such standards pertain to an outfitter’s qualifications, training, experience, knowledge of governing rules and regulations, type of gear and equipment. By necessity of protecting the public, such standards and the licensing requirement apply to commercial outfitters and guides conducting expeditions on public as well as private lands.
Further, Idaho Code § 36-2110 provides:
2. The big game hunting area as set forth on the license shall be the limit of such operations for each licensee, subject to the subsection (b) below.
(b) The board may adjust the territorial scope of operations of any licensed outfitter or guide for reasons of game harvest, where territorial conflict exists between the big game operations of outfitters and guides, or for the safety of persons utilizing the services of outfitters and guides.
Thus, in addition to the aim of public safety, other aims of the Act are protection of Idaho’s big game, by preventing abusive harvesting, and protection of the rights of other commercial outfitters, by efforts to prevent conflict. Both of these aims depend on the regulation of territories assigned to a licensee. It is readily inferable that in order to accomplish these aims, especially protection of the state’s big game, the act must apply to territorial property whether or not it is comprised of private or public lands.
It is a well settled matter of law in Idaho that a state has the power to control the fish and game within its boundaries. This and other fundamental principles set forth in Sherwood v. Stephens, 13 Idaho 399, 90 *413P. 345 (1907), and still valid today, are germane to the case at bar.
The wild game and fish within a state belong to the people in their collective capacity____ [I]t is within the police power of the legislature to enact such general laws as may be necessary for the protection and regulation of the public’s right in such fish and game____ [0]wn-ership acquired in fish and game is not such an ownership as one acquires in chattels or lands, but is merely a qualified ownership, and that the possession of fish and game is at all times subject to such regulations as the legislature may see proper to make, subject to the provisions of the constitution.
Sherwood, 13 Idaho at 403-04, 90 P. at 346-47.
Sherwood stands for the above proposition that the state has the power to regulate fishing and hunting on public as well as private lands and that such police power is constitutional. Sherwood, 13 Idaho at 399, 90 P. at 345. Based on the state’s intent to protect public health, safety and welfare and the wild fish and game within its limits, it is clear that the Outfitters and Guides Act requires that commercial outfitters be licensed to conduct hunting and fishing expeditions on private as well as public domains. Moreover, because the Act falls within the police power prerogative of the legislature, its enactment was not in violation of any person’s constitutional rights, but, as per the statute and Sherwood, was the regulation of a resource belonging collectively to the people of the state and hence clearly within the state’s purview.
Nevertheless, one is brought to wonder what was the reason for the Idaho undercover agent to shoot down the deer. Clearly the undercover agent by that time had assembled sufficient evidence, without a deer carcass, to substantiate a criminal complaint which charged performing services as an outfitter without having obtained a license. The state agent’s case included: 1) newspaper advertisements for commercial outfitting placed by Koller; 2) Koller’s draft brochures for commercial outfitting services; 3) receipt or cancelled checks for the $2500 consideration paid by the undercover agent to Koller for commercial outfitting services; 4) Koller’s videotape of the hunting expedition; and 5) and his personal knowledge that Koller, while acting in his capacity as a commercial outfitter, crossed the state line from Utah into Idaho, where the statute became effective.
In light of the foregoing, it appears that the killing of the animal was a senseless act. Unknown is whether that decision was the agent’s or his supervisor’s directive. Unfortunately, it was a contradiction to the state’s avowed intent of conserving game.