No. 12881 

IN THE 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 the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record : 

For Appellant : 

Chester Lloyd Jones, County Attorney, Virginia 

City, Montana 

Clayton Herron argued, Helena, Montana 

For Respondent: 

Larry D. Whitman argued, West Yellowstone, Montana 

For Amicus Curiae: 

Longan, Holmstrom and Vicki W. Dunaway, Billings, 

Montana 

Vicki W. Dunaway argued, Billings, Montana 

Submitted: May 6, 1975 

Decided : 

- er 
Mr. Chief Justice Harrision delivered the Opinion of the Court. 

The state of Montana appeals from an order of the district 

court, Madison County, granting summary judgment to defendant 

Donald Jack. 

Donald. Jack is a resident of the state of California 

charged with violating section 26-909, R.C.M. 1947, ~ontana's 

Resident Guide Law, which provides: 

11 Licensed outfitter or guide required for nonresident 

hunting-exception for landowner-waiver. (1) It shall 

be unlawful for any nonresident to hunt game animals 

on any land within any national forest wilderness area, 

national game refuge, or state game range within the state 

of Montana unless accompanied by a licensed outfitter, 

professional guide or resident guide and the nonresident 

hunting license must bear the signature and license number 

of the outfitter or resident guide who accompanies him 

except as noted below. 

"(2) A landowner or agent may guide nonresident 

or resident hunters on land owned by, or land leased to 

him without a guide license; or he may authorize nonresident or resident hunters to hunt without a guide on land 

owned by, or land leased to, such landowner, lessee or 

agent. The nonresident hunter's hunting license must 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 fish and game commission shall 

have authority to waive guide requirements for holders 

of B-2, B-5 and B-6 licenses in special deer and antelope 

areas during the period B-5 and B-6 license holders may 

hunt . I I Guide requirements may not be waived in areas 

open to a general hunting season on any game animal other 

than deer and antelope. 1 l 

Donald Jack was convicted on November 19, 1973, and fined 

fifty dollars by a justice of the peace. His conviction was 

based on a stipulation of facts which can be summarized as: 

1. Defendant Donald Jack was a nonresident of the state 

of Montana at the time of the offense charged. 

2. At such time, in Madision County, Montana, defendant 

was hunting big game within a national forest. 

3. That he was, at the time and place, unaccompanied 

by any resident guide. 
4. Except as may be stated above, defendant was in 

compliance with all fish and game laws of the state of Montana. 

Defendant's sole defense a t a l l levels 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 interstate commerce, 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 three basic issues: 1) whether the 

statute is a legitimate and proper exercise of governmental 

authority; 2) the basis 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 is no question that a state has the power to preserve and regulate its wildlife. 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, 161 U.S. 519, 16 S.Ct.600, 40 L. Ed. 793. Under 

more modern theory, the power has been held to lie within the 

purview of a staters police powers. Silz v. 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 ex rel. Nepstad v. Danielson, 149 
Mont. 438, 427 P.2d 689). We need not decide which of these 

doctrines should now prevail in the state of Montana. In the 

area of wildlife regulation, it is sufficient to state the 

legislature may impose such terms and conditions as it sees 

fit, as long as constitutional limitations are not infringed. 

State ex rel. Visser v. Fish and Game Comm., 150 Mont. 525, 531, 

437 P.2d 373. 

The next step is to determine the basis for the legislative classification and determine what persons or groups of 

persons are affected by it. By drawing a distinction between 

resident and nonresident sportsman, we find the statute directly 

affects at least four distinct groups of persons. First, are 

of course the true nonresidents who merely enter the state for 

the purpose of hunting. But the broad language of the law must 

also be construed as applying to persons living in the state 

for a period of time insufficient to satisfy the legal residency 

requirements (section 26-202.3, R.C.M. 1947); to former residents 

of the state who still return to hunt; and to persons who own 

land within the state but maintain their legal residences elsewhere. Defendant is a member of this latter class, as he actually 

owns land in Madison County. 

A hearing was held in the district court to afford the 

state an opportunity to present evidence regarding the purpose 

of the statute. On the basis of that evidence, the state contends the legislature had these objectives in mind when the 

statute was enacted: 

1. That the safety of nonresident hunters is promoted 

by placing them in the company of residents who are more likely 

to be familiar with the local terrain and weather conditions. 

2. That state regulations and terrain are more likely 

to be obeyed and respected on the assumption that residents are 

more familiar with the laws and more jealous as to the maintenance 

of the local environment. 

3. That landowners are better protected against the 

improper use of their land. 
4. That the law affords state officials better enforcement control. 

Finally, we determine the proper standard of review 

or scope of judicial inquiry to be applied. Over the years, 

the courts have developed two main approaches, conditioning 

their respective application on the nature of the constitutional 

challenge. Where the challenge extends only to the more 

general legislative classifications, the judicial inquiry must 

be limited to determining whether the distinction is justified 

by a rational basis. Stated another way, we can determine 

only whether the law has a sufficiently reasonable relation 

to a proper legislative purpose so as not to be deemed arbitrary. State v. 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 is not made with precise mathematical nicety 

or results in some inequality, One who attacks the legislation 

has the burden of proving the classification to be 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, 

6 L. Ed.2d 393. 

But when the challenge extends to classifications which 

11 affect "fundamental rights" or certain suspect criteria" the 

scope of judicial inquiry is correspondingly increased. The 

I1 purposes of the law must serve a compelling governmental interest1' 

and a heavy burden is placed on the state to justify its classification. Huffman v. Montana Supreme Court, 372 F.Supp. 1175. 

Defendant alleges and argues that the statute in question 

infringes upon his constitutional right to travel in an effort 

to persuade us to apply the stringent "compelling governmental 
interest" test. And, it is true the record tends to indicate 

the costs of hiring a resident guide are quite high, and that 

many more nonresident hunters enter the state each year than 

could be reasonably accommodated by the existing number 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 statute does not appear to be patently unconstitutional 

on its face, But its constitutional defects are revealed when 

reviewed in light of its practical application. The statute was 

allegedly designed to promote safety for hunters, yet it is 

an established fact that the requirements of the law have been 

waived as to deer and antelope, inthose hunting 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 find no reason to assume that one area is less dangerous 

than the other. Further, the dangers inherent to hunting antelope or deer would certainly not decrease as to those who might 

hunt elk or moose. The statute purports to promote adherence 

to the game laws and respect for the environment, but no reasonable connection has been established between this goal and 

the legislative classification. 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 fosters better protection for private landowners and more effective law enforcement. 

Yet the evidence completely fails to establish that more nonresidents than residents are found to be in violation of the law, 

or that hunters as a group are less law abiding than fishermen 

or other outdoor sportsmen. Even if the statute did operate to 

promote these goals, certainly the people in the eastern one 

third of the state are as deserving of this protection as are 

our western citizens. Certainly all nonresident hunters are 

* 
subject to judicial sanction and liability for violations and 

torts committed within the state. 

The relationship between the statutory classification 

and its legitimate 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.