O'BRIEN v. State

711 P.2d 1144, 54 U.S.L.W. 2398, 1986 Wyo. LEXIS 443
CourtWyoming Supreme Court
DecidedJanuary 13, 1986
Docket85-112
StatusPublished
Cited by20 cases

This text of 711 P.2d 1144 (O'BRIEN v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'BRIEN v. State, 711 P.2d 1144, 54 U.S.L.W. 2398, 1986 Wyo. LEXIS 443 (Wyo. 1986).

Opinions

RAPER, Justice, Retired.

Keiran W. O’Brien (appellant) was convicted, and fined $100 by a justice of the peace for Park County, on January 18, 1984, of hunting in a federal wilderness [1146]*1146area unaccompanied by a licensed professional guide or resident guide, in violation of W.S. 23-2-401(a) and (b).1 On appeal to the district court, Park County, Fifth Judicial District, sitting as an appellate court, the conviction was affirmed after the district judge had given the matter his close attention and thoughtful consideration as reflected in a comprehensively written opinion. Appellant appeals from the order of affirmance.

The issues advanced by the appellant are:

“I.
“Does Wyoming Statute Section 23-2-401(a), requiring nonresident big game hunters who hunt in federal wilderness areas to employ guides violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?
“II.
“Does Wyoming Statute Section 23-3-401(a) violate the Privileges and Immunities Clauses of the United States Constitutions [sic]?
“III.
“Does Wyoming Statute Section 23-2-401(a) violate the Supremacy Clause of the United States Constitution because it conflicts with the purposes of the National Wilderness Preservation System Act and federal regulations thereunder?”

We will affirm the decision of the district court and appellant’s conviction.

Appellant, at the time of his citation on September 28, 1983, was a 46-year-old Minnesota resident having in his possession a valid “Wyoming Non-Resident Elk and Fishing Privilege” license. He and his brothers had set up two hunting camps in the Park County section of the Teton wilderness area of the Teton National Forest. At the time of his citation at one of the campsites, and at the trial, appellant admitted he had been hunting elk in the federal wilderness area without a licensed guide. He knew at that time that Wyoming law required him to have such a guide when hunting big game animals in a wilderness area. Elk are big game animals. W.S. 23-1-101(a)(i).

Appellant further admitted that he had hunted in the Wyoming wilderness from 1980 to 1983 intentionally without a guide because he felt the guide requirement was unconstitutional. He was an experienced hunter, familiar with the wilderness area in which he was hunting having been there on a ten or eleven-day camping trip with a Wyoming resident friend living in that area. In 1980 he had hunted for two weeks 20 to 30 miles from the area he was [1147]*1147hunting when he was issued the citation. He also testified at the trial that to hire a guide would cost between $1,500 and $2,000 for a ten-day trip.

In Schakel v. State, Wyo., 513 P.2d 412 (1973), this Court declared unconstitutional the predecessor statute to the one under which appellant was convicted and which we now consider. Since that time the amended version of W.S. 23-54 (1957), now W.S. 23-2-401, supra note 1, has been in effect. These two developments cast a different light on the problem and lead to a different conclusion than Schakel. The state in Schakel pointed out that W.S. 23-54 (1957) had been repealed in its entirety and replaced, but this Court properly refused to then consider the new statute as applicable. In addition, the United States Supreme Court in Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), has held that recreational hunting is not a fundamental right protected by the Privileges and Immunities Clause of the United States Constitution. We therefore write on a clean slate, though some principles of law enunciated in Schakel remain viable. It may appear that different views are now present. If so, such differences can be attributed to discoveries in the field of law unearthed by Baldwin, as well as the statutory amendment. The recent case of Powell v. Daily, Wyo., 712 P.2d 356 (1986), involves an entirely different question, i.e., the resident requirement for a professional guide, so we will do no more than distinguish it later in this opinion.

In considering a constitutional attack on a statute, basic principles must be kept in mind. There is a presumption of constitutionality, and the burden is on the attacker to show unconstitutionality beyond a reasonable doubt. Bell v. State, Wyo., 693 P.2d 769 (1985). Reasonable doubts as to constitutionality are resolved by upholding the statute, if possible. Armijo v. State, Wyo., 678 P.2d 864 (1984).

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution has a parallel in Art. 1, § 34 of the Wyoming Constitution.2 This Court has held those respective provisions are equivalents. Washakie County School District Number One v. Herschler, Wyo., 606 P.2d 310, cert. denied 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980). Therefore, our holding on the equal protection question herein shall be under both the United States and Wyoming Constitutions.

I

There are two tests designed to determine if statutory classifications meet equal protection requirements. The first is employed where the interest affected is an ordinary one and the second where a fundamental interest is at issue. When an ordinary interest is involved, then a court merely examines to determine if there is a rational relationship between a classification made by the statute or statutes being viewed and a legitimate legislative state objective. In other words, if the court perceives that the legislature had some arguable basis for choosing the end and the means, it will sustain the law. Cheyenne Airport Board v. Rogers, Wyo., 707 P.2d 717 (1985). When a fundamental interest is affected or if a classification is inherently suspect, then the classification must be subjected to close scrutiny to determine if it is necessary to achieve a compelling state interest. The latter test requires that the state establish that there is no less onerous alternative by which its objective may be achieved. Washakie County School District Number One v. Herschler, supra.

Baldwin settles the matter of whether the right to hunt is a fundamental right in [1148]*1148relation to the Privileges and Immunities Clause3 of the United States Constitution:

“Does the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause? * * Elk hunting by nonresidents in Montana is a recreation and a sport.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Clajon Production Corporation Marion H. Scott, Mary C. Scott, Husband and Wife and Salt Creek Ranch, L.L.C., a Wyoming Limited Liability Corporation v. Pete E. Petera, Director of the Wyoming Game and Fish Department, in His Personal Capacity Jay Lawson, Chief Game Warden of the Wyoming Game and Fish Department, in His Personal Capacity the Wyoming Game and Fish Commission Dan Kennedy, Kevin Dooley, Mike Hunzie, Hal Corbett, Mary Flitner, Kari Priewe, and David Steger, Members of the Wyoming Game and Fish Commission, in Their Personal Capacities, National Wildlife Federation Wyoming Wildlife Federation Phyllis Achison Taylor Outfitters Wyoming Outdoor Council Dubois Wildlife Association Heart Mountain Wildlife Association Greater Yellowstone Coalition Medicine Butte Wildlife Association Wyoming Chapter of the Sierra Club and Orion, the Hunters Institute, Intervenors-Appellees. Clajon Production Corporation Marion H. Scott, Mary C. Scott, Husband and Wife and Salt Creek Ranch, L.L.C., a Wyoming Limited Liability Corporation v. Pete E. Petera, Director of the Wyoming Game and Fish Department, in His Personal Capacity Jay Lawson, Chief Game Warden of the Wyoming Game and Fish Department, in His Personal Capacity the Wyoming Game and Fish Commission Dan Kennedy, Kevin Dooley, Mike Hunzie, Hal Corbett, Mary Flitner, Kari Priewe, and David Steger, Members of the Wyoming Game and Fish Commission, in Their Personal Capacities, National Wildlife Federation Wyoming Wildlife Federation Phyllis Achison Taylor Outfitters Wyoming Outdoor Council Dubois Wildlife Association Heart Mountain Wildlife Association Greater Yellowstone Coalition Medicine Butte Wildlife Association Wyoming Chapter of the Sierra Club and Orion, the Hunters Institute, Intervenors-Appellants
70 F.3d 1566 (Tenth Circuit, 1995)
Clajon Production Corp. v. Petera
70 F.3d 1566 (Tenth Circuit, 1995)
Clajon Production Corp. v. Petera
854 F. Supp. 843 (D. Wyoming, 1994)
Wyoming Coalition v. Wyoming Game & Fish Commission
875 P.2d 729 (Wyoming Supreme Court, 1994)
Johnson v. State Hearing Examiner's Office
838 P.2d 158 (Wyoming Supreme Court, 1992)
Mills v. Reynolds
837 P.2d 48 (Wyoming Supreme Court, 1992)
Hatfield v. Rochelle Coal Co.
813 P.2d 1308 (Wyoming Supreme Court, 1991)
Hays v. State Ex Rel. Wyoming Workers' Compensation Division
768 P.2d 11 (Wyoming Supreme Court, 1989)
Hoem v. State
756 P.2d 780 (Wyoming Supreme Court, 1988)
Paravecchio v. Memorial Hospital of Laramie County
742 P.2d 1276 (Wyoming Supreme Court, 1987)
O'BRIEN v. State
711 P.2d 1144 (Wyoming Supreme Court, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
711 P.2d 1144, 54 U.S.L.W. 2398, 1986 Wyo. LEXIS 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-state-wyo-1986.