Outfitter's License of Godfrey v. Montana State Fish & Game Commission

NO. 80-458

I N THE SUPREME COURT O F THE S T A T E O F MONTANA

1981

I N THE MATTER O F THE O U T F I T T E R ' S
L I C E N S E O F WILLARD H. GODFREY, J R . ,
WILLARD H. GODFREY, J R . ,

P l a i n t i f f s and A p p e l l a n t s ,

MONTANA S T A T E F I S H & GAME COMMISSION
AND MONTANA S T A T E DEPARTMENT O F F I S H ,
W I L D L I F E , and PARKS,

D e f e n d a n t s and R e s p o n d e n t s .

Appeal from: D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G a l l a t i n .
H o n o r a b l e W. W. L e s s l e y , Judge p r e s i d i n g .

C o u n s e l of R e c o r d :

For A p p e l l a n t s :

L a n d o e , Brown, Planalp, Kommers & L i n e b e r g e r ,
Bozeman, Montana
Peter L i n e b e r g e r argued, B o z e m a n , M o n t a n a

For R e s p o n d e n t s :

J. D a n i e l H o v e n , D e p t . of J u s t i c e , L e g a l Services,
D i v i s i o n , argued, H e l e n a , M o n t a n a

Submitted: M a r c h 23, 1 9 8 1

Decided: APR 3 0 1981

&#** Clerk'
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
Willard Godfrey appeals an order of the Gallatin
County District Court granting summary judgment in favor of
the Department of Fish, Wildlife and Parks. The District
Court action was an appeal from the decision of the
Department's acting director denying Godfrey's application
for renewal of his Montana fishing outf itter 's license.
Included in Godfrey's appeal was a request for a declaratory
judgment regarding the constitutionality of sections
87-4-122(2) and 87-4-126(1), MCA.
In May 1980 Willard Godfrey applied for renewal of
his Montana nonresident outfitter's license. The
Department, by a letter from its acting director, denied
Godfrey's application for renewal on the grounds that he no
longer met the residency requirements of section 87-4-126,
MCA .
From 1972 through 1978 Godfrey was a resident of
Island Park, Idaho, and a duly licensed nonresident fishing
guide. At least a portion of his commercial guide business
involved guiding fishing trips into the Montana counties of
Gallatin, Madison and Beaverhead. In 1978, Godfrey moved
his residence from Idaho to Utah, but he continued to
operate his outfitting business out of Island Park, Idaho.
In 1979 appellant applied for and was granted a
renewal of his nonresident Montana outfitter's license. The
Department's denial of his application in 1980 gave rise to
his appeal to the District Court. When the District Court
affirmed the Department's decision to deny the application,
Godfrey appealed to this Court, challenging the
constitutionality of sections 87-4-122 and 87-4-126, which
read in pertinent part:
"Outfitter's Qualifications. Each applicant
for and holder of an outfitter's license or
any renewal thereof shall, in the opinion of
the director, meet the following
qualifications:

"(2) be a citizen of the United States and a
resident of Montana for a full two years,
unless the residency requirement is waived by
the department." Section 87-4-122, MCA.
"Residence requirements--waiver and recipro-
city. (1) Residence requirements for pro-
curing an outfitter's license are waived as
to persons who are citizens of a common
boundary state and of a common county thereof
to the same extent the homestate of the
applicant waives such requirements for the
residents of Montana, except for fee."
Section 87-4-126, MCA.
Although Godfrey maintains a number of constitutional
challenges in support of his claim that the residence
requirement for licensing as a guide and outfitter is
unconstitutional, it is necessary for this Court to only
address his allegation that the statutes involved deny him
equal protection of the law.
The principal purpose of the Equal Protection Clause,
Amend. XIV, U.S. Const., and Art. 11, Sec. 4, 1972 Mont.
Const., is to ensure that persons who are citizens of this
country are not the subject of arbitrary and discriminate
state action.
It should be noted at the outset that this Court's
review of this case does not reveal that a "fundamental"
right is involved, and, therefore, the "strict scrutiny
analysis" of equal protection is not triggered. Godfrey's
claim that his fundamental right to travel has been abridged
by the operation of the residency requirement is
unpersuasive. We do not find that any fundamental right has
been s u b s t a n t i a l l y abridged by the Department's denial of

his application. Compare, S h a p i r o v. Thompson ( 1 9 6 9 ) , 394

U.S. 6 1 8 , 89 S . C t . 1 3 2 2 , 22 L.Ed.2d 600.

A s t a t e may a f f e c t a p e r s o n ' s r i g h t t o t r a v e l without

v i o l a t i n g it. I f a n i n d i v i d u a l f r o m S t a t e A moves t o S t a t e

B and S t a t e A r e f u s e s him t h e r i g h t t o v o t e i n t h a t S t a t e ' s

e l e c t i o n s , S t a t e A has arguably " c h i l l e d " t h a t individua.1' s

f r e e d o m o f movement b u t c a n n o t be f o u n d t o h a v e a b r i d g e d h i s

r i g h t s under t h e e q u a l p r o t e c t i o n c l a u s e . Every change o f

residence involves some e l e m e n t o f choice--a balancing of

t h e a d v a n t a g e s t o be g a i n e d by t h e move a s o p p o s e d t o t h e

privileges sacrificed.

W e have d e t e r m i n e d , a l s o , t h a t t h e r i g h t t o p r a c t i c e

a p r o f e s s i o n a c r o s s s t a t e l i n e s is n o t a fundamental r i g h t

within the meaning of the equal protection clause. See

Huffman v . Mont. Supreme C t . (D. Mont. 1 9 7 4 ) , 372 F.Supp.

1175. However, having determined t h a t a fundamental r i g h t

is n o t i n v o l v e d i n t h e c a s e b e f o r e u s , o u r review is n o t y e t
complete.

Although n o t fundamental, t h e a b i l i t y of a p p e l l a n t t o

p r a c t i c e h i s profession a c r o s s s t a t e l i n e s is, n e v e r t h e l e s s ,

an important right. When h e is d e n i e d that right solely

b e c a u s e o f h i s membership i n a c l a s s of n o n r e s i d e n t s , that

c l a s s i f i c a t i o n must be reviewed to determine if it bears

some r e a s o n a b l e r e l a t i o n s h i p t o l e g i t i m a t e g o v e r n m e n t a l

interest. See Great Falls National Bank v. McCormick
( 1 9 6 8 ) , 1 5 2 Mont. 3 1 9 , 448 P.2d 991.

Appellant r e l i e s h e a v i l y upon o u r d e c i s i o n in State

v. Jack ( 1 9 7 5 ) , 1 6 7 Mont. 456, 539 P.2d 726. This Court

f i n d s h i s r e l i a n c e on t h a t d e c i s i o n w e l l p l a c e d , and w e a r e
persuaded that the Jack decision is controlling in this
case.
The defendant in Jack wa.s convicted of violating
Montana's former resident guide law which prohibited
nonresidents from hunting on national forest land unless
accompanied by a licensed guide. On appeal, we applied the
rational-basis test of equal protection analyses, finding
that the law was indeed unconstitutional. Appellant asserts
that the equal protection analysis applied in Jack also
serves to invalidate the statutes which denied him renewal
of his nonresident outfitter's license.
This Court in Jack found, inter alia, that (1) the
"safety of hunters" rationale was belied by the exceptions
contained in the statute itself and was not uniformly or
rationally applied to all areas or types of game; (2) the
"familiarity with laws and respect for environment"
rationale showed no reasonable connection between the goal
and the legislative classification; (3) the above
connection, if any, was especially "remote" when applied to
a former Montana resident and nonresident landowner; and (4)
the "landowner protection" and "law enforcement" rationales
were supported by no evidence that nonresidents violated
laws more than residents, or that hunters are less law
abiding than other sportsmen.
We concluded in Jack that the "relationship between
the statutory classification and its legitimate objectives
is tenuous and remote, and therefore insufficient to justify
the inequities it has engendered." 167 Mont. at 463.
The State offers the following justification for the
discrimination against the nonresident:
 "The s t a t u t e s w e r e e n a c t e d p u r s u a n t t o t h e
p o l i c e power t o c o n t r o l t h e a c t i v i t i e s o f
outfitters t o i n s u r e t h e s a f e t y of persons
u t i l i z i n g t h e i r services within t h e borders
of Montana, e c t private property
r i g .................................l e l a w
-- h t s , and t o i n s u r e reasonab
------------------y ----p --------g ----
enforcement a b i l i t in reservin and
p -------- g ........................ t a n a . "
rotectin t h e w i l d l i f e of Mon
(Emphasis added.)
In our opinion, none of the reasons offered to
justify the discrimination are persuasive. To t h e e x t e n t

t h e y may be p e r s u a s i v e , s i m i l a r j u s t i f i c a t i o n s w e r e a d v a n c e d
and f o u n d t o be i n a d e q u a t e t o u p h o l d t h e s t a t u t e i n J a c k .

W e have reviewed t h e e v i d e n c e adduced in the t r i a l
c o u r t and f i n d a g l a r i n g l a c k o f a n y e v i d e n c e w h i c h would

support t h e Department's position. The D e p a r t m e n t f a i l e d t o
p r e s e n t any t e s t i m o n y which i d e n t i f i e d n o n r e s i d e n t s a s t h e

s o u r c e of any p a r t i c u l a r e v i l . The r e c o r d d o e s n o t r e f l e c t
t h a t a n o n r e s i d e n t o u t f i t t e r is a n y more c a r e l e s s , a n y l e s s

r e s p e c t i v e of p r o p e r t y r i g h t s , o r a n y less s u b j e c t t o l a w
enforcement procedures. The n o n r e s i d e n t exclusion simply

does not address itself to the reasons given for its

existence.

As a f i n a l note, i n J a c k t h i s C o u r t found t h a t t h e

e x c e p t i o n s t h a t had b e e n c a r v e d o u t o f t h e s t a t u t e i n v o l v e d
i n t h a t c a s e had d i l u t e d i t s p u r p o s e and e f f e c t t o s u c h a n

extent that, if i t had e v e r b o r e a r e a s o n a b l e r e l a t i o n t o
its o b j e c t i v e , it c e r t a i n l y d i d n o t do s o any l o n g e r . 167

Mont. a t 462. I n t h i s c a s e , two e x c e p t i o n s h a v e b e e n made
to the residency requirement to make such a requirement
r i d i c u l o u s l y r e m o t e t o what t h e s t a t u t e seeks t o a c c o m p l i s h .
The requirement that an applicant live i n Montana
and, t h u s , promote t h e s a f e t y i n t e r e s t s o f t h e Department is
w a i v e d i f t h e a p p l i c a n t l i v e s i n a common c o u n t y o f a common
state. It is simply not reasonable to assume that an
outfitter in Camas, Jefferson County, Idaho, is less
qualified than an outfitter in St. Anthony, Fremont County,
Idaho, merely because he lives two counties from the Montana
border instead of one. Incidentally, in terms of actual
distance, St. Anthony, Idaho, is further from the Montana
border than is Camas.
The discriminatory classification becomes even more
irrationally related to its published goals when the common
county exception is further qualified so that there must be
some degree of reciprocal privilege granted to Montana
outfitters in the common state. Therefore, assuming Wyoming
does not allow nonresident outfitters at all, an applicant
from Fremont County, Idaho, is considered qualified as he
would further the safety interest of the Department, whereas
an outfitter from Park County, Wyoming, would be
unqualified.
Having determined that Godfrey has been denied the
equal protection of the law by the operation of sections
87-4-122(2) and 87-4-126, MCA, we rule that those statutes
are unconstitutional.
We reverse and remand this cause to the District
Court for proceedings consistent with this opinion.
W e concur:

~ i s t r i c tJudge, sitting in
place of Mr. Justice Daly
Mr. Chief J u s t i c e Frank I. Haswell, s p e c i a l l y c o n c u r r i n g .

I c o n c u r i n t h e f o r e g o i n g o p i n i o n b u t a d d i t i o n a l l y I would

h o l d t h e s t a t u t e u n c o n s t i t u t i o n a l on t h e a d d i t i o n a l grounds t h a t

i t v i o l a t e s t h e p r i v i l e g e s and i m m u n i t i e s c l a u s e o f t h e U n i t e d

States Constitution. The r a t i o n a l e I would f o l l o w i s s e t f o r t h
i n t h e case o f Gordon v s . Committee o n C h a r a c t e r and F i t n e s s
( 1 9 7 9 ) , 422 N.Y.S.2d 641.

Chief J u s t i c e
Mr. Justice John C. Sheehy dissenting:

The majority goes at this constitutional question from
entirely the wrong direction. This is not an "equal protection"
case (nor a "commerce clause" nor a "privilege and immunities"
case, which the majority does not discuss). It is instead,
a case that should be decided under the constitutional
police power of the state. On that basis, I would affirm
the District Court.
The police power of this state is not restricted to the
regulation or supervision of what is offensive or disorderly,
but embraces regulation designed to promote public welfare
and convenience and the peace and good order of society.
State v. Loomis (1925), 75 Mont. 88, 242 P. 344. Laws
relating to the Fish and Game are special enactments relating
to the police power of the state. State v. Rathbone (1940),
110 Mont. 225, 100 P.2d 86.
The federal government, under the commerce clause, has
general dominion over navigable waters to the exclusion of
the states, but the states have authority to regulate fishing
on navigable waters, and the rights of the federal government
and the state are not in conflict as long as interstate
commerce is not affected. United States v. Pollmann (D.
Mont. 1973), 364 F.Supp. 995.
Interstate commerce is not affected by the adoption of
the outfitters statutes in this case. The majority has
found, correctly, that the right to engage in outfitting in
Montana is not a fundamental right. Where a fundamental
right is not involved, statutes need not be drawn to fit
with precision the legitimate purposes animating them.
Baldwin v. Fish and Game Com'n. of Montana (1978), 436 U.S.
371, 98 S.Ct. 1852, 56 L.Ed.2d 354. It is only with respect
to basic and essential activities, the interference which
frustrates the purposes of the Union, that states must treat
residents and nonresidents without unnecessary distinction.
Baldwin, supra.
The industry of guiding and outfitting is a matter
of local concern to this state and is subject to local
regulation; the statutes do not attempt to regulate the
flow of interstate commerce directly or indirectly; Congress
has not spoken on these local concerns, and thus the statutes
are valid. Parker v. Brown (1943), 317 U.S. 341, 63 S.Ct.
307, 87 L.Ed.2d 315.
The affidavit of William S. Maloit, a biologist, warden
and supervisor of outfitting for Montana, shows that outfitters
are responsible for the welfare and safety of their clients;
that outfitters must be knowledgeable about the extreme
weather conditions, and terrain in Montana; that lack of
safety is a common problem in hunting and fishing in Montana;
that prevention of trespass of private property owners is a
continuing concern. These are legitimate reasons for establishing
a distinction between residents and nonresident outfitters.
These reasons are reasonably related to the objectives of
our statutes, and give a rational basis for the reciprocity
provisions. See Baldwin, supra.
The classification in the statutes between residents
and nonresidents is not "suspect." Inherent in the statutes
is the rationale that residents can effectuate the purposes
of the statutes better than nonresident outfitters. The
standard of reasonableness is the constitutional measure of
the proper exercise of police power. Yellowstone Valley
Elec. v. Ostermiller (1980), - Mont . -, 608 P.2d 491,
496, 37 St.Rep. 536, 540. There is no reason to assume that
"protectionism" motivates the statutory regulation here.
 The constitutional rights of citizens under the equal
protection clause and the privileges and immunities clause
are distinguished in Baldwin, supra, but the distinctions
are unimportant here, as the reasons for the inapplication
of the clauses overlap. There is not a fundamental right
here, nor a suspect classification.
I note that Wyoming, Alaska and Colorado limit guide
and outfitter's licenses to residents of the respective
states; Idaho, California and Utah allow nonresidents to be
so licensed, though the fees may differ. If this case had
come to us on a statutory requirement that only Montana
citizens could be licensed as outfitters, would we have held
that requirement unconstitutional? I think (or hope) not.
The same reasons to uphold the statute as a valid exercise
of state police power would support it. Does it make any
difference then that we have added a reciprocity provision,
limited to common border states and common border counties?
Not at all. Reciprocal statutes or regulations designed to
meet a legitimate state goal are invulnerable to constitutional
attack on equal protection grounds. Hawkins v. Moss (4th Cir.
1974), 503 F.2d 1171.
Our earlier decision in State v. Jack (1975), 167 Mont.
456, 539 P.2d 726 has no pertinence here. Jack was treated
by this Court as a fundamental right case with suspect
criteria. 167 Mont at 461, 539 P.2d at 729. A heavy burden
was placed on the state to justify its classification in
that case. Jack should be given no weight in this decision.
The statute in Jack was unevenly applied throughout the
state; here the legislation is evenly applied throughout the
state.
The concurring opinion finds a violation of the privileges
and immunities clause of the United States Constitution,
relying on Gordon v. Committee on Character and Fitness
(1979), 422 N.Y.S.2d 641.
Gordon, a lawyer graduate of the University of Virginia
lived in New York for two years as house counsel to his
employer corporation. He passed the New York bar examination
but before the results were announced, he was transferred to
North Carolina by his employer. On the basis of his residency
change, the committee refused to certify his fitness for
admission to the bar of New York. The New York Court of
Appeals held he was denied admission solely on the basis of
nonresidence, in violation of the privileges and immunities
clause.
However, the New York court recognized the Baldwin
rule, supra, that where disparate treatment does not implicate
"privileges" and "immunities" bearing upon the nation as a
single entity, there is no requirement that the state treat
residentsand nonresidentsalike. 422 N.Y.S.2d at 644.
The New York Court posed a two-hurdle test under privileges
and immunities (1) the state's governmental interest must
justify the discrimination, and (2) the means adopted must be
narrowly drawn and the least restrictive. 422 N.Y.S.2d at
645. Montana's statutes on outfitting easily clear those
hurdles. In any event, the hurdle test only applies if the
legislation affects the nation as a single entity. 422 N.Y.S.
2d at 645.
There is no need to discuss plaintiff's claim that the
statutes impinge on his right to travel. There is no merit
to the claim.
In striking down this legislation, the majority has
opened the business of outfitting in Montana to anybody from
anywhere. That result is more irrational than the fancied
horrors the majority found in the stricken statutes.
 I dissent. We should affirm the summary judgment in

favor of the Department.