## F I L E D United States Court of Appeals Tenth Circuit 

### July 11, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD J. SCHUTZ,

Plaintiff-Appellant,

v. No. 03-8051 TOM THORNE, Wyoming Game & Fish Director, in his official capacity; STATE OF WYOMING; J. MICHAEL POWERS, Wyoming Game & Fish Commissioner, for District #1, in his official capacity; LINDA FLEMING, Wyoming Game & Fish Commissioner, for District #2, in her official capacity; DOYLE DORNER, Wyoming Game & Fish commissioner, for District #3, in his official capacity as commission vice president; JERRY SANDERS, Wyoming Game & Fish Commissioner, for District #4, in his official capacity; GARY LUNDVALL, Wyoming Game & Fish Commissioner, for District #5, in his official capacity as commission president; KERRY POWERS, Wyoming Game & Fish Commissioner, for District #6, in his official capacity; M. HALE KREYCIK, Wyoming Game & Fish Commissioner, for District #7, in his official capacity,

Defendants-Appellees.-2-

_______________________________ U.S. OUTFITTERS, INC., JEAN TAULMAN, LAWRENCE MONTOYA, FILIBERTO VALERIO, INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES, Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WYOMING (D.C. NO. 02-CV-165-D)

Donald J. Schutz, Saint Petersburg, Florida, for Pl aintiff-Appellant. Jay A. Jerde, Senior Assistant Attorney General (wi th Patrick J. Crank, Attorney General, and Jennifer A. Golden, Deputy Attorney Ge neral, on the brief), Office of the Wyoming Attorney General, Cheyenne, Wyoming, for DefendantsAppellees. James R. Scarantino, Albuquerque, New Mexico for Am ici Curiae U.S. Outfitters, Inc., Jean Taulman, Lawrence Montoya, and Filiberto Valerio. Paul A. Lenzini filed an amicus brief for Internati onal Association of Fish and Wildlife Agencies.

Before TYMKOVICH , McWILLIAMS , and PORFILIO , Circuit Judges.

TYMKOVICH , Circuit Judge.-3-

The question in this case is whether three Wyoming statutes unconstitutionally limit equal access to hunting op portunities for nonresidents. Donald Schutz, a Florida resident, brings this 42 U .S.C. § 1983 suit against the state of Wyoming and various state officials repres enting the game and fish commission (together “Wyoming”) for allegedly violating his constitutional rights. Relying on the Equal Protection Clause of the Fourteenth Amendment and the so-called “dormant” Commerce Clause of Article I, Section 8, of the United States Constitution, he claims that sections 23-2-1 01 (the “Fee Statute”), 23-1-703 (the “Quota Statute”), and 23-2-401 (the “Guide St atute”) of the Wyoming code impermissibly burden nonresident hunters. The district court granted summary judgment in favo r of the Defendants, and Schutz filed a timely appeal. Exercising juris diction under 28 U.S.C. § 1291, we affirm the district court’s holdings regarding S chutz’s standing to challenge the statutes. As to the merits, (a) we affirm the district court’s dismissal of the statutory challenges on equal protection grounds, and (b) regarding the dormant Commerce Clause claim, we find that it is moot in l ight of Section 6063 of House Bill 1268, approved by the United States Congress and signed into law on May 10, 2005. I. Background

A. Factual and Procedural History-4-

Schutz resided in Wyoming from 1954 until his gradu ation from the University of Wyoming in 1975. During that time, S chutz traveled the state extensively, hunting species of big game. After mo ving out-of-state, he often returned during the various hunting seasons. Schut z is not alone in finding Wyoming an enticing place to hunt big game. Accord ing to amicus U.S. Outfitters, Inc., nonresident hunters in 2001 spentapproximately $123 million in Wyoming. Schutz himself claims that Wyoming receiv es $38.9 million in direct revenue from hunters and fishermen, three-quarters of which comes from nonresidents. App. tab 5 at 10. Wyoming has responded to the interest in these sports by crafting a variety of regulatory provisions. Three such statutory pro visions led Schutz to file the present claim. As discussed in detail below, the f irst is a Fee Statute, which charges higher fees to out-of-state hunters compare d to in-state hunters. The second is a Quota Statute, which reserves a greaternumber of licenses for residents. Finally, Wyoming adopted a Guide Statut e, requiring out-of-state hunters to employ either a professional or residentguide to hunt in designated wilderness areas. In 2002, Schutz purchased a nonresident elk license , and used it to hunt on non-wilderness lands. Some months later, Schutz ap plied for a 2003 license to hunt bighorn sheep but decided against applying forelk or deer licenses because-5-

the licenses were too expensive, and he was unwilli ng to hire a professional guide or find a resident guide. The record does not disc lose whether he in fact drew a bighorn sheep license. Schutz then filed suit challenging the constitution ality of these three provisions of the Wyoming code. Wyoming responded by moving to dismiss, and again moved to dismiss after Schutz filed an amende d complaint. The district court converted Wyoming’s motion to a motion for su mmary judgment and allowed both parties to supplement the record. Sch utz also filed a cross motion for summary judgment. Finding that Schutz did not have standing to challenge the Guide Statute and that the Quota and Fee Statut es did not violate his constitutional rights, the court granted summary judgment for Wyoming. B. Wyoming’s Hunting Statutes Schutz claims that three hunting statutes, individu ally and in concert, unconstitutionally limit his ability to legally hun t big game in the state of Wyoming. The statutes create special preferences f or Wyoming residents in three ways: (1) in-state hunting licenses are cheaper, (2 ) more licenses are allocated to residents, and (3) residents are exempt from a requ irement that hunters in wilderness areas obtain a guide. 1. The Fee Statute-6-

The Fee Statute assesses much higher hunting licens e fees on out-of-state residents: (xiii) Resident deer license; one deer . . . . . . . . . . . . . . . . . . . . . $25.00 (xiv) Nonresident deer license; one deer . . . . . . . . . . . . . . . . . .$210.00

. . . (xvii) Resident elk license; one elk . . . . . . . . . . . . . . . . . . . . . . .$35.00 (xviii) Nonresident elk license; one elk . . . . . . . . . . . . . . . . . . .$400.00

. . . (xxi) Resident bighorn sheep license; one bighorn s heep . . . . . . .$75.00 (xxii) Nonresident bighorn sheep license; one bigho rn sheep . .$1500.00 Wyo. Stat. Ann. § 23-2-101 (2002). The fee difference is applicable to every species o f big and trophy game, including, among others, deer, elk, mountain lion, grizzly bear, and antelope. The fee structure also includes a reduced rate for resi dent and nonresident youth. 2. The Quota Statute The Quota Statute reserves to Wyoming residents a m ajority of the available licenses for exotic game such as bighorn sheep, mountain goats, moose, and grizzly bear: The commission shall reserve eighty percent (80%) o f the moose and seventy-five percent (75%) of the bighorn sheep, mo untain goat and grizzly bear licenses to be issued in any one (1) year for resident hunters. Wyo. Stat. Ann. § 23-1-703(e) (2002). A smaller percentage of deer and elk licenses are r eserved to Wyoming residents. 3. The Guide Statute-7-

The Guide Statute creates two classes of hunters—re sident and nonresident—for wilderness hunting: (a) No nonresident shall hunt big or trophy game an imals on any designated wilderness area, as defined by federal o r state law, in this state unless accompanied by a licensed professional guide or resident guide. . . . (b) Any resident possessing a valid resident big ortrophy game animal license may apply for and receive a residentguide license. . . . Wyo. Stat. Ann. § 23-2-401 (2002).

II. Analysis
A. Standard of Review We review de novo questions of subject matter jurisdiction, including whether a plaintiff has standing to sue. Wilson v. Glenwood Intermountain Props. , 98 F.3d 590, 593 (10th Cir. 1996). We also review de novo the grant of a motion for summary judgment. Garrett v. Hewlett-Packard Co. , 305 F.3d 1210, 1216 (10th Cir. 2002). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law.” Fed. R . Civ. P. 56(c). “A disputed fact is ‘material’ if it might affect the outcome o f the suit under the governing law, and the dispute is ‘genuine’ if the evidence i s such that a reasonable jury-8-

could return a verdict for the nonmoving party.” Allen v. Muskogee , 119 F.3d 837, 839 (10th Cir. 1997). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the lig ht most favorable to the nonmoving party.” Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). The nonmov ing party must nonetheless present “facts such that a r easonable jury could find in [his] favor.” Id. B. Standing Standing analysis, as the district court recognized , is as important as it is fact-sensitive. The doctrine is especially signifi cant when federal courts sit in judgment over duly enacted state laws, given our co ncern about “the proper—and properly limited—role of the courts in a democratic society.” Allen v. Wright , 468 U.S. 737, 750 (1984); Elk Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 124 S. Ct. 2301, 2308 (2004). Whether a plaintiff has standing to sue “turn[s] on the precise allegations of the parties seeking reli ef” and must be supported by specific facts. Wyoming ex rel. Sullivan v. Lujan , 969 F.2d 877, 882 (10th Cir. 1992) (quoting National Wildlife Fed’n v. Hodel , 839 F.2d 694, 703–04 (D.C. Cir. 1988)). As a result, standing analysis is often as confusing as it is fundamental. See Schaffer v. Clinton , 240 F.3d 878, 882 n.5 (10th Cir. 2001) (citing Valley Forge Christian College v. Americans United for Sep aration of Church and State,-9-

Inc. , 454 U.S. 464, 475 (1982)); 13 Charles Alan Wright , Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531 (2d ed. 1984)). The three constitutional elements of standing are n onetheless well established: First, the plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest that is (a) concret e and particularized, and (b) actual or imminent, not conjectural or hypothet ical. Second, there must be a causal connection between the injury and the conduct complained of . . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by afavorable decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61 (1992); Nova Health Sys. v. Gandy , 388 F.3d 744, 749–51 (10th Cir. 2004). These thr ee elements—injury, causation, and redressibility—must exist before fed eral courts will exercise jurisdiction. We turn first to whether Schutz meet s these requirements as to each

statute. 1. The Fee Statute We agree with the district court that Schutz has st anding to challenge the Fee Statute. First, the higher fee he paid as a no nresident for an elk license in 2002 and a big horn sheep license in 2003 is an actual, concrete injury that the courts could remedy. See Vermont Agency of Natural Res. v. United States ex rel.
Stevens , 529 U.S. 765, 772–73 (2000). Second, the increas ed cost for nonresidents over residents is an injury caused by the statute. Finally, a change to the statute, eliminating the gap between resident a nd nonresident fees, would-10-

redress this grievance. Thus, Schutz’s Fee Statute challenge meets the three basic constitutional standing requirements.
2. The Quota Statute Second, we also agree with the district court that Schutz has standing to challenge the Quota Statute. The district court ba sed this decision on the “equalfooting” doctrine set forth in Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville , 508 U.S. 656, 666–67 (1993). In that case, the Court held that the inability of eligible bidders to compete for a governmental benefit—contract set asides for racial minorities—is an injury in fact, even when the petitioning party cannot demons trate that they “would have obtained the benefit but for the barrier.” Id . at 666. “The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Id.; see also Gratz v. Bollinger , 539 U.S. 244, 261–62 (2003) (describing cases whe re standing found even though plaintiff not denied a b enefit). We have applied the equal footing analysis in this circuit. See Cache Valley Elec. Co. v. Utah Dep’t of Transportation , 149 F.3d 1119, 1122 (10th Cir. 1998). Here, the quota system requires that Schutz and oth er out-of-state applicants compete for a limited number of hunting licenses, while a separate pool of resident applicants compete for a larger portion of the available licenses.-11-

Schutz can demonstrate standing if he can show thathe applied for a hunting license and that Wyoming law made the “benefit” mor e difficult to obtain because of its preference system. Id. at 1122; see also Conservation Force, Inc. v. Manning , 301 F.3d 985, 990 & n.3 (9th Cir. 2002) (finding standing to challenge similar regulations on this basis where plaintiffs had never received a license). This he has done. Schutz is required to compete un equally for a limited supply of bighorn sheep licenses that are disproportionately reserved for Wyoming residents. He is therefore injured in fact and his injury is caused by the Statute. A favorable ruling in this case would redress his i njuries by leveling the playing field for license applicants. He therefore has sat isfied our standing requirements for his challenge to the Quota Statute.
3. The Guide Statute Schutz’s standing as to the Guide Statute is less c lear. The district court found that Schutz had neither “set forth in his aff idavit sufficient facts detailing that he has suffered a concrete or particularized i mminent injury,” nor “demonstrated that court action will redress these alleged injuries.” Schutz v. Wyoming , No. 02-CV-165-D, slip op. at 6–7 (D. Wyo. May 28, 2003) (“Order”). In particular, the Guide Statute would not, accordi ng to the district court, actually “force” Schutz to hire a guide to hunt bighorn shee p, since the statute left him1 Wyoming’s hunting regulations divide the state int o various “units,”

granting big game licenses to hunt in a particular unit. Schutz specifically sought a license to hunt in Unit Three, two-thirds of whic h is part of the Washakie Wilderness Area. Fully one-third of Unit Three, ho wever, is not a designated wilderness area. Thus, as the district court point ed out, the Guide Statue does not apply to one-third of Unit Three. See Order at 5–6. -12- free to hunt without a guide in non-wilderness areas. 1 Wyo. Stat. Ann. § 23-2- 401(a). Further, the court held that the Guide Statute allows any resident of Wyoming to serve as a resident guide merely by appl ying for a license, thus likely reducing the expense and difficulty of procuring a guide. Finally, the court was least persuaded by Schutz’s claim that the statute interferes “with his right to consider selling a bighorn mount on E-bay.” Order at 6. The court concluded that to make such a sale, Schutz would have to succ essfully attain four uncertain goals: draw a license, kill a trophy bighorn, remov e the cape and horns of the animal without damage, and find a willing buyer. U ntil Schutz “has been denied the opportunity to hunt in a wilderness area or for ced to pay for a guide, he has yet to suffer any injury,” and thus does not have s tanding to challenge the Guide
Statute. Id. We agree, but for slightly different reasons. Schutz asks us to assert jurisdiction over a claim when he has yet to be inj ured by the challenged statute. First of all, he hunted for elk in 2002 and nothing in his affidavit suggests he was limited by operation of the Guide Statute in the 20 02 hunt. He alleges he would2 We note that the district court’s order, Schutz’s affidavit, and the briefs

all state that Schutz applied for a 2003 bighorn sh eep license, though the record fails to disclose whether he in fact successfully d rew a license, and if so, whether he relinquished this right or acted on it. Had suc h a record been developed, our decision on this point might have been different. We also note that in his complaint and amended complaint, Schutz confessed that he did not so much intend to redress an actual injury as “to test the federal constitutionality of three Wyoming statutes.” App. tab 2 at 2, tab 5 at 2. -13- like to hunt in wilderness areas in the future without a guide, but at the time he filed for summary judgment he had not yet applied f or 2003 deer or elk licenses and established that the Guide Statute in fact limi ted his hunting options. Standing is not conferred by “conjecture” or “specu lation” about future hunts. As to Schutz’s application for a 2003 big horn shee p license, he also has not demonstrated standing. He may indeed be forcedto choose between the unpalatable alternatives of hunting in non-wilderne ss areas, paying for a guide, or foregoing hunting in Wyoming. But he has not demon strated in his affidavit that he actually drew a big horn sheep hunting license a nd was denied access to hunting in wilderness areas. 2 Until this choice is actually put to Schutz, no cognizable injury in fact exists. We therefore affirm the district court’s ruling that Schutz has not suffered an injury sufficiently concrete to give him standin g to challenge the Guide
Statute. C. Equal Protection-14-

We now turn to the merits of Schutz’s claims. Schutz first argues that the district court erred in finding that the Fee and Qu ota Statutes did not violate the Fourteenth Amendment’s Equal Protection Clause. Th e court below, of course, found that hunters are not a suspect class and thathunting is not a fundamental right, thus correctly concluding that the standard of review is the rational basis

test. See Baldwin v. Fish and Game Comm’n of Montana , 436 U.S. 371, 389 (1978). Under that standard, “courts will uphold [ a law] if it is rationally related to a legitimate end.” Tonkovich v. Kansas Bd. of Regents , 159 F.3d 504, 532 (10th Cir. 1998). Applying rational basis review, the district court concluded that the Fee and Quota Statutes are reasonably related to a number o f legitimate ends. First, they “help to encourage residents to maintain their resi dency and by extension support [Wyoming] conservation programs.” Order at 10. Se cond, given that residents tend to hunt smaller female game while nonresidents tend to hunt larger “trophy” males, the Statutes help preserve the gender balanc e needed to maintain herd sizes. Id. Finally, the preferences for residents “provide[] an economic boost because many people in Wyoming hunt outside their county of residence.” Id. at 11.3 The one exception is Schutz’s objection to the lottery-within-a-lottery

system of the Fee Statute, Wyo. Stat. Ann. § 23-2-1 01(f), whereby nonresidents can buy their way into a more exclusive drawing fora set-aside portion of the nonresident licenses. This may suggest, as Schutz contends, that Wyoming is using the Fee Statute to increase the revenue it co llects. More likely, the scheme increases the odds of nonresidents in drawing a lic ense. In any event, for purposes of equal protection, it is not illegitimat e to design a licensing scheme that provides financial incentives to increase one’ s odds in a license lottery. See Powers v. Harris, 379 F.3d 1208, 1219–23, 1226 (describing economic r egulation and equal protection). -15- Schutz apparently concedes that these are legitimat e ends and questions only whether the Statutes further them in a rational way. 3 According to Schutz, the district court erred in dismissing this claim at the summary judgment stage because, in his view, “the analysis of the reasonab le relationship of the regulation to the means is a factual question, not a legal iss ue.” Aplt. Op. Br. at 21. Schutz is mistaken. Under rational basis review, “a legis lative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications , 508 U.S. 307, 315 (1993); Powers v. Harris , 379 F.3d 1208, 1225 (10th Cir. 2004) (Tymkovich, J., concurring). Moreover, “those attacking the ration ality of the legislative classification have the burden ‘to negative every c onceivable basis which might support it.’” Beach Communications , 508 U.S. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Under this standard, “statutory classifications will be set aside only i f no grounds can be conceived to-16-

justify them.” Powers , 379 F.3d at 1217 (quoting McDonald v. Bd. of Election
Comm’rs , 394 U.S. 802, 809 (1969)). Nor should courts in reviewing challenged classifications “(1) second guess the ‘wisdom, fairness, or logic’ of legislative choices; (2) insist on ‘razor-sharp’ legislative cl assifications; or (3) inquire into legislative motivations.” Id. at 1225 (citations omitted). With these principles in mind, we turn to the appli cation of the rational basis standard to the facts of this case. While we agree with Schutz that some of Wyoming’s goals may seem speculative, we cannot conclude that there exists no reasonable justification for the in-state preferenc es. Many reasons exist, in fact, for states to adopt a preference scheme. Residenti al preferences are commonly considered a benefit of state citizenship for finit e resources such as wildlife resources, higher education, or access to state runfacilities. While the reasons for preferences are varied—and context specific—it is not irrational to provide them. In-state residents, for example—especially t hose who hunt or fish—have a vested long-term interest in the sustainability of Wyoming’s wildlife management system. This includes not just political support f or such programs, but direct financial support through fees and taxes. In-state residents may be counted on more reliably to hunt in Wyoming year after year, t hus supporting long-term game and fish habitat preservation, herd management prog rams, new species programs such as the introduction of the gray wolf or grizzl y bear populations, or, finally,-17-

the more mundane aspects of wildlife programs such as adequate highways, offroad and hiking trails, fire protection, and search and rescue programs. While out-of-state hunters also contribute directly and i ndirectly to these programs through hunting and fishing license fees and sales taxes, their financial support does not replace that made by Wyoming residents. T he in-state preference is a logical and reasonable way to reward this support and foster the long-term success of wildlife management programs. The district court’s other proffered reasons are eq ually plausible. The legislature could reasonably conclude that lower fe es for the large population of resident hunters encourages them to apply for and h unt outside their home counties and thereby provide an “economic boost” to rural areas. While out-ofstate residents also travel to Wyoming, the promoti on of a reliable core of residential hunters could be seen as a rational met hod to encourage the year-toyear economic stability essential to small communit ies. Similarly, Wyoming could reasonably believe that resident hunters will more likely hunt smaller animals across a larger cross-section of the state, thereby promoting the State’s interests in herd management. In-state hunters mig ht also be more familiar with state gaming regulations and more willing to enforc e them. In addition to these objectives, we note that the in-state preferences p rovide an advantage for the economically-disadvantaged hunters and young hunter s (through lower license-18-

fees). These reasons together support Wyoming’s st atutory classifications at issue here. Finally, it is worth noting the Supreme Court has f ound residency regulations similar to those at issue here further a state’s interest in recouping costs associated with wildlife and habitat preservation. See Baldwin v. Fish and Game Comm’n of Montana , 436 U.S. 371, 389–90 (1978). In Baldwin , a group of plaintiffs challenged Montana’s elk-hunting license scheme, a scheme which created a differential license fee structure for ou t-of-state hunters. In analyzing whether the scheme violated the Equal Protection Cl ause, the Supreme Court noted that in-state residents, through taxes, assis ted in the production and maintenance of Montana’s elk populations. In-state tax revenues provided financial support for game and wildlife programs, h ighway construction and maintenance, fire protection efforts, and herd pres ervation and hunter safety
programs. Id. at 389. Although reaping the benefits, out-of-stat e hunters did not concomitantly bear any of the tax burden, and there fore Montana was justified in imposing differential license fees. See id. at 391. Schutz argues that Baldwin does not apply since the monetary difference between resident and nonresident fees is much great er in Wyoming than it was in Montana. But that argument misses Baldwin ’s central holding: that there is “no duty on the State to have its licensing structure p arallel or identical for both-19-

residents and nonresidents, or to justify to the pe nny any cost differential it imposes in a purely recreational, noncommercial, no nlivelihood setting.” Id. at 391. Thus, in practical application, Baldwin discourages courts from interfering with a state’s decision to apportion the costs of their wildlife programs between residents and nonresidents. Furthermore, as with Montana’s resident population discussed in Baldwin , Wyoming residents “assist[] in the production and m aintenance of big-game populations through taxes,” id. at 389, so the real dollar difference between the costs borne by residents and nonresidents (who pay no taxes) is significantly less than Schutz purports. In any event, it is clear th at the fees alone do not reflect the totality of the cost to the State of Wyoming in man aging its wildlife, making wild game reasonably accessible to hunters, and regulati ng the resource’s safe and efficient use. Wyoming’s “legislative choice was a n economic means not unreasonably related to the preservation of a finit e resource and a substantial regulatory interest of the State.” Id. at 390. In conclusion, Wyoming’s Fee and Quota Statutes are rationally related to legitimate state purposes. They therefore are cons titutional under the Equal Protection Clause.-20- D. Dormant Commerce Clause Schutz’s final claim relates to the effect Wyoming’ s Fee Statute has on interstate commerce. The Commerce Clause of the U. S. Constitution states that “Congress shall have the power . . . [t]o regulate Commerce with foreign Nations, and among the Several States, and with the Indian t ribes.” U.S. Const. Art. I, § 8. The Supreme Court has read into this language a “ne gative” or “dormant” component that grants courts the power to invalidat e state regulations that discriminate against interstate commerce. See Camps Newfound/Owatonna, Inc. v. Town of Harrison , 520 U.S. 564, 571–72 (1997). The essential eleme nt of a successful dormant Commerce Clause claim is congres sional inaction, so when Congress does act, the dormancy ends, thus leaving the courts obliged to follow congressional will. Such is the case here. In May, 2005 House Bill 1268 (“HB 1268”), the “Emer gency Supplemental Appropriations Act for Defense, the Global War on T error, and Tsunami Relief, 2005,” was signed into law by the President. Altho ugh seemingly unrelated to the general thrust of the legislation, Section 6063 of HB 1268 specifically addresses the very questions at issue in the present case. S ection 6063(b)(1) provides: It is the policy of Congress that it is in the publ ic interest for each State to continue to regulate the taking for any pu rpose of fish and wildlife within its boundaries, including by means of laws or regulations that differentiate between residents an d nonresidents of such State with respect to the availability of licenses or permits for taking of particular species of fish or wildlife, t he kind and numbers-21-

of fish and wildlife that may be taken, or the fees charged in connection with the issuance of licences or permits for hunting and fishing. (emphasis added). Section 6063(b)(2) further demon strates Congress’s intent to limit claims like Schutz makes here: Silence on the part of Congress shall not be construed to impose any barrier under clause 3 of Section 8 or 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. Enactment of HB 1268 renders Schutz’s dormant Comme rce Clause claim moot. Constitutional mootness exists “when the iss ues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). This court adheres to the same standard. See Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir. 2004); Citizens for Responsible Gov’t State PAC v. Davidson, 236 F.3d 1174, 1178 (10th Cir. 2000). Thus, when C ongress acted to confirm the rights of states to regulate these acti vities, Schutz’s claim ended. Furthermore, the case and controversy “must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona , 520 U.S. 43, 67 (1997); see also Nova Health Sys. v. Gandy , 388 F.3d 744, 754 (10th Cir. 2004). So even while on appeal, the doctrine of constitutional mootness applies. Congress has unmi stakably foreclosed dormant Commerce Clause petitions challenging state hunting and fishing statutes that4 Prior to the enactment of HB 1268, the Ninth Circu it applied Article I, § 8

to facts very similar to the present case, holding that big game hunting substantially affects interstate commerce and thus should be regulated through judicial application of the dormant Commerce Clause

. Conservation Force, Inc. v. Manning , 301 F.3d 985, 992–94 (9th Cir. 2002). -22- treat nonresidents differently than residents. We therefore find, and Schutz has conceded, that his claim that the Wyoming statutes are an unconstitutional infringement on interstate commerce is moot due to the enactment of HB 1268, Section 6063. 4
III. Conclusion We hold that Schutz has not suffered an injury suff iciently concrete to create a case or controversy relating to the Guide Statute. As for the Fee and Quota Statutes, the district court correctly ruled that they do not violate the Equal Protection Clause of the Fourteenth Amendment. Fin ally, congressional enactment of HB 1268, Section 6063 makes moot Schut z’s Article I, Section 8 claim. We therefore affirm the judgment of the district court.