436 U.S. 371, 379 n.17 (1978)
In 1975 and 1976 Montana required a resident to pay nine dollars for an elk license and four dollars for a tag.1 A nonresident had to buy a combination license for two hundred twenty-five dollars plus a tag for one hundred fifty-one dollars. This produced totals of thirteen dollars for residents and three hundred seventy-six dollars for nonresidents.2
Appellants included Lester Baldwin, a Montana resident and licensed outfitter whose customers were mostly nonresidents.3 Nonresidents Carlson, Huseby, Lee, and Moris from Minnesota traveled to Montana each year to hunt elk and had purchased the higher-priced nonresident licenses in prior seasons.4
Montana maintained more than four hundred outfitters.5 The State had a force of seventy game wardens. Each warden covered roughly two thousand one hundred square miles.6 The State spent more than twenty-six million dollars on wildlife management between 1966 and 1976, of which approximately thirteen million dollars came from license fees.7
The State determined annual elk harvest numbers from census data and winter-range availability.8 It issued seventeen thousand resident and twelve hundred nonresident licenses in 1975.9 Elk were concentrated in the mountainous western third of the State and depended on private ranch lands for winter forage.10
Nonresident big-game licenses rose five hundred thirty percent from 1960 to 1970 while resident licenses rose sixty-seven percent.11 Nonresidents constituted about thirteen percent of all hunters in the 1974-1975 season.12 In 1975 the five appellants filed suit in the United States District Court for the District of Montana against the Fish and Game Commission, its director, and its five commissioners. They sought declaratory and injunctive relief plus partial reimbursement of fees already paid.13 A three-judge district court, with one judge dissenting in part, upheld the statutes.14 The Supreme Court noted probable jurisdiction in 1977.15
Whether Montana's distinction between residents and nonresidents in elk-hunting license fees violates the Privileges and Immunities Clause of Article IV, Section 2?16
The Privileges and Immunities Clause prevents a State from imposing more onerous burdens on citizens of other States than on its own citizens.17 It applies with respect to fundamental privileges bearing on the vitality of the Union.18 The Clause permits distinctions in the distribution of natural resources such as wildlife.19 The Clause protects only those privileges fundamental to interstate harmony.20
No. The distinction does not violate the Clause because elk hunting is not a fundamental privilege.21 Applying the rule to the established facts, Montana's elk are managed as a state resource with substantial investment from license fees and general funds.22 The fee differential recoups costs from nonresidents who benefit from the resource without contributing through residency taxes.23 The opportunity to hunt elk is a recreational activity, not essential to livelihood or interstate harmony.24
Nonresidents like Carlson, Huseby, Lee, and Moris pursue it for sport while residents like Baldwin operate related businesses.25
The distinction does not violate the Privileges and Immunities Clause.26
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan concurred in the judgment and in the opinion of the Court.27 He wrote separately to emphasize that the Court's decision today does not affect the principles established in Toomer v. Witsell and Mullaney v. Anderson.28 Those cases involved commercial fishing and commercial shrimp fishing, respectively.29
The commercial nature of the activity in those cases distinguishes them from the recreational elk hunting at issue here.30 The Privileges and Immunities Clause protects the right to pursue a livelihood on equal terms with citizens of the State.31 It does not require a State to allow nonresidents to hunt big game on the same terms as its own citizens.32
This approach preserves the Clause's application to commercial pursuits while recognizing that recreational activities fall outside its core protections.33
Chief Justice Burger concurred in the result.34 He emphasized Montana's special interest in its elk population as a natural resource entrusted to the State by its citizens.35 The doctrine of state interest in wildlife, though not literal ownership, justifies preferring residents in access to that resource.36
This preference does not offend the Clause when the activity remains noncommercial and within state borders.37 Montana citizens have a legitimate interest in preserving their access to elk found primarily within the State.38
Justice Stevens dissented from the judgment.39 He contended that the Montana licensing scheme violates the Privileges and Immunities Clause of Article IV, Section 2.40 The opportunity to hunt elk is a privilege that the State may not withhold from nonresidents on terms substantially more onerous than those imposed on residents.41
The differential in fees is so great as to be prohibitive for many nonresidents.42 The fact that elk hunting is a recreational activity rather than a commercial one does not remove it from the protection of the Clause.43 The Clause protects all privileges and immunities of citizenship, not merely those that are commercial in nature.44
The Court's reliance on McCready v. Virginia and Patsone v. Pennsylvania is misplaced because those cases involved unique resources where game was being depleted, whereas Montana's elk are not threatened with depletion.45 The State's primary purpose in imposing the higher fees is to generate revenue from nonresidents rather than to achieve conservation goals.46
Whether Montana's elk-hunting licensing scheme violates the Equal Protection Clause of the Fourteenth Amendment?47
The Equal Protection Clause requires that statutory classifications bear a rational relationship to a legitimate state purpose when no fundamental interest or suspect class is involved.48
No. The classification between residents and nonresidents bears a rational relationship to the legitimate state purpose of preserving and regulating wildlife resources.49 Applying the rule to the established facts, Montana spent more than twenty-six million dollars on management with half from license fees.50 It issued limited nonresident licenses based on harvest objectives.51 The higher fees recover costs from nonresidents who do not pay resident taxes supporting habitat programs such as roads, fire suppression, and warden enforcement.52
The licensing scheme does not violate the Equal Protection Clause.53
Whether Montana's elk-hunting licensing scheme violates the Commerce Clause?54
No. Hunting is not commerce within the meaning of the Clause.57 Applying the rule to the established facts, elk are wildlife owned and regulated by the State for the benefit of its citizens rather than articles of commerce.58 The licensing scheme regulates a recreational activity without implicating interstate trade in goods or services.59
The licensing scheme does not violate the Commerce Clause.60