### No. 12881 INTHE 

### SUPREME COURT OF THE 

### STATE OF MONTANA 1975

STATE OF MONTANA, Plaintiff and Appellant,
-VS

# - DONALD JACK, 

### Defendant and Respondent.
Appeal from: District Court of theFifthJudicial District, Honorable Frank E. 

### Blair, Judge presiding. Counsel of Record: 

### For Appellant: 

### Chester Lloyd Jones, County Attorney, Virginia

City, Montana ClaytonHerron argued, Helena, Montana For Respondent: Larry D. 

### Whitman argued, West Yellowstone, Montana For Amicus Curiae: Longan, Holmstrom and Vicki

### W. Dunaway, Billings,

Montana VickiW. 

### Dunaway argued, Billings, Montana

Submitted: May 

### 6, 1975 Decided:

-erMr. Chief Justice Harrision delivered the Opinion of the Court.
The stateof Montana appeals from an order of the district court, Madison County, granting summary judgment to defendant Donald Jack. Donald. Jack isa resident of the stateof California charged with violating section 26-909, R.C.M. 1947, ~ontana's Resident Guide Law, which provides:

11

Licensed outfitter or guide required fornonresident hunting-exception for landowner-waiver. (1) It shall be unlawful for any nonresident tohunt game animals on any land within anynational forestwilderness area, national game refuge, or stategame range within the state of Montana unless accompanied by a licensed outfitter, professional guide or resident guide and the nonresident hunting licensemust bear the signature and licensenumber of the outfitter orresident guide who accompanies him except asnoted below. "(2) A landowner or agent may guide nonresident orresident hunters on land owned by, or land leased to him without a guide license; or he may authorize nonresident orresident hunters tohunt without a guide on land owned by, or land leased to, such landowner, lessee or agent. The nonresident hunter's hunting licensemust bear the signature of the resident landowner, lessee or agent on whose fenced property he 

### is hunting as evidence that permission has been obtained. "(3) The Montana fishand game commission shall have authority towaive guide requirements forholders of B-2, 

### B-5 and B-6 licenses in specialdeer and antelope areas during the period B-5 and B-6 license holders may hunt

# . IIGuide requirements may not be waived in areas open to a general hunting season on any game animal other than deer and antelope. 1l Donald Jack was convicted on November 19, 1973, and fined fiftydollarsby a justice of the peace. His conviction was based on a stipulation of factswhich can be summarized as: 1. Defendant Donald Jack was a nonresident of the state of Montana atthe time of the offense charged. 2. Atsuch time, inMadision County, Montana, defendant
was hunting big game within a national forest. 

### 3. That he was, atthe time and place, unaccompanied by any resident guide.4. Except asmay be stated above, defendant was in compliance with allfish and game laws of the state of Montana. Defendant's sole defense a t a l llevels of these proceedings has taken the form of a constitutional challenge to the statute he admittedly offended. In support of this challenge he urges that the statute denies him equal protection of the laws in contravention of the Fourteenth Amendment and Article 11, Section 4 of the Montana Constitution. He also contends the statute to be an undue burden on interstatecommerce, contrary to the prohibition of Article I, Section 8 of the United States Constitution.The question of whether a statute encroaches upon the protections offered by the equal protection clause depends directly on the determination of threebasic issues: 1)whether the statuteisa legitimate and proper exercise of governmental authority; 2) thebasis of the classification and an identification of the persons covered thereunder; and 

### 3) the proper standard of review or scope of judicial inquiry regarding the relationship between the classification and the objectives of the law. There isno question that a statehas the power topreserve and regulate itswildlife. In the nineteenth centfry, it
was commonly held that this power derived from the common law

11 concept of sovereign ownership". Under that doctrine, the ownership of wildlife was held by the state in trust for its people. McCready v. Virginia, 94 U.S. 391, 24 L.Ed 248; Geer v. Connecticut, 161U.S. 519, 16 S.Ct.600, 40 L. Ed. 793. Under more modern theory, the power has been held toliewithin the purview of a staterspolice powers. Silzv. Hesterberg, 211 U.S. 31, 29 S.Ct. 10, 

### 53 L. Ed. 75; Van Camp Sea Food Co. v. Dept.of Natural Resources, 30 F.2d 111. Montana recognizes both the doctrine of sovereign ownership (Rosenfeld v. Jakways, 67 Mont. 558, 216 P. 776), and the police power theory (State exrel. Nepstad 

### v. Danielson, 149Mont. 438, 427 P.2d 689). We need not decidewhich of these doctrines should now prevail in the stateof Montana. In the
area of wildliferegulation, it issufficient to statethe legislature may impose such terms and conditions as it sees fit, as long as constitutional limitations arenot infringed. Stateex rel. Visser v. Fish and Game Comm., 150Mont. 525, 531, 437 P.2d 373. The next step isto determine the basis for the legislative classification and determinewhat persons or groups of persons are affected by it. By drawing a distinctionbetween resident and nonresident sportsman, we find the statute directly affects atleast four distinct groups of persons. First, are of course the truenonresidents who merely enter the state for the purpose of hunting. But the broad language of the law must alsobe construed as applying topersons living in the state for a period of time insufficient to satisfy the legalresidency requirements (section 26-202.3, R.C.M. 1947); to former residents of the statewho stillreturn tohunt; and topersons who own land within the statebut maintain their legalresidences elsewhere. Defendant isa member of this latterclass, ashe actually
owns land inMadison County. A hearing was held in the district court to afford the statean opportunity topresent evidence regarding the purpose of the statute. 

### On the basis of that evidence, the statecontends the legislature had these objectives inmind when the statutewas enacted: 1. That the safety of nonresident hunters is promoted by placing them in the company of residents who aremore likely tobe familiar with the local terrain and weather conditions. 2. That stateregulations and terrain aremore likely tobe obeyed and respected on the assumption that residents are
more familiarwith the laws and more jealous as to the maintenance of the local environment. 3. That landowners arebetter protected against the improper use of their land.

### 4. That the law affords stateofficials better enforcement control. Finally, we determine the proper standard of review
or scope of judicial inquiry tobe applied. Over the years, the courts have developed two main approaches, conditioning theirrespective application on thenature of the constitutional challenge. Where the challenge extends only to the more general legislativeclassifications, thejudicial inquiry must be limited to determiningwhether the distinction isjustified by a rational basis. Stated another way, we can determine only whether the law has a sufficientlyreasonable relation to a proper legislativepurpose so as not tobe deemed arbitrary. Statev. Safeway Stores, Inc., 106 Mont. 182, 76 P.2d 81; Great Falls National Bank v. McCormick, 152 Mont. 319, 448 P.2d 991. In connection with this standard, a classification having some reasonable basis does not deny equal protection merely because it isnot made with precise mathematical nicety or results in some inequality, One who attacks the legislation has theburden of proving the classification tobe arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U.S.61, 31 S.Ct. 337, 55 L. Ed. 369; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6L. Ed.2d 393. But when the challenge extends to classifications which

11 affect "fundamental rights" or certain suspect criteria" the scope of judicial inquiry iscorrespondingly increased. The
I1 purposes of the law must serve a compelling governmental interest1' and a heavy burden is placed on the statetojustify its classification. Huffman v. Montana Supreme Court, 372 F.Supp. 1175. Defendant alleges and argues that the statute inquestion infringes upon his constitutional right to travel in an effort topersuade us toapply the stringent "compelling governmentalinterest" test. And, it istrue the record tends to indicate the costs of hiring a resident guide are quite high, and that many more nonresident hunters enter the stateeach year than could be reasonably accommodated by the existingnumber of licensed professional guides. While we recognize a possibility the resident guide law affects the right to interstate travel,
we do

### not base our decision on those grounds. See Shapiro v. Thompson, 394 U.S. 618, 

### 638 note 21, 89 S.Ct. 1322, 22 L ed.2d 600. The statutedoes not appear tobe patently unconstitutional
on its face, But itsconstitutional defects arerevealed when reviewed in light of its practical application. The statutewas allegedly designed to promote safety forhunters, yet it is
an established fact that the requirements of the law have been waived as to deer and antelope, inthosehunting districts comprising the eastern one third of this state. While there may be a marked difference in the terrain in the two general areas,
we findno reason to assume that one area is less dangerous than the other. Further, the dangers inherent to hunting antelope or deer would certainlynot decrease as to those who might hunt elkor moose. The statutepurports topromote adherence to the game laws and respect for the environment, but no reasonable connection has been established between this goal and the legislativeclassification. Even assuming the existence of such a connection, 

### its relationship to this particular purpose becomes more remote when applied to former Montana residents and nonresident landowners, as defendant. The state further contends the law fostersbetter protection forprivate landowners and more effective law enforcement. Yet the evidence completely fails to establishthat more nonresidents than residents are found tobe inviolation of the law,
or that hunters as a group are less law abiding than fishermen
or other outdoor sportsmen. Even if the statutedid operate to promote these goals, certainly the people in the eastern one third of the stateareas deserving of this protection as are our western citizens. Certainly allnonresident hunters are

*subject tojudicial sanction and liabilityforviolations and torts committed within the state. The relationshipbetween the statutoryclassification and itslegitimate objectives 

### is tenuous and remote, and therefore insufficient to justify the inequities it has engendered. The judgment is affirmed.

I, 4 ' ' ",$ ' ** 1 ad*'



### . % 

### . - --;dd2-dz&~~+&--k*-L---~~---*---k-x--2%~ Chief ~uLtice

We Concur:

Justices.