PUB00160 - Laserfiche WebLink

Home Browse Search

.. ;.!. ~ ... more in the states' favor than Sporhase allowed. That is, because water is a atural resource with a stronger tradition of state ownership and control than, say, minn ws or . game birds, its analysis under the Commerce Clause should be correspondingly we ghted toward the states. Indeed, when he dissented in Hughes, Justice Rehnquist adv cated tipping the balance in states' favor even in the case of the minnows at issue: the State is accorded wide latitude in fashioning regulations appropriate for protection of its wildlife. Unless the regulation directly conflicts with a federal statute or treaty, Douglas v. Seacoast Products, Inc., supra, at 283- 285; Kleppe v. New Mexico, 426 U.S. 529, 546 (1976); Missouri v. Holland, supra, at 434; allocates access in a manner that violates the Fourteenth Amendment, Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948); or represents a naked attempt to discriminate against out-of- state enterprises in favor of in-state businesses unrelated to any purpose of conservation, Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 13 (1928), the State's special interest in preserving its wildlife should prevail. And this is true no matter how "Balkanized" the resulting pattern of commercial activity (footnote omitted). Hughes, 441 U.S. at 342-43 (Rehnquist, 1., dissenting). Rehnquist's comments in the footnote attached to the above passage are also worth considering: Given the primacy of the local interest here, in the absence of conflicting federal regulation I would require one challenging a state conservation law on Commerce Clause grounds to establish a far greater burden on interstate commerce than is shown in this case. See infra, at 344-345. See also Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 350 (1977): "[O]ur opinions have long recognized that, 'in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it"'; H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 567 (1949) (Frankfurter, J., dissenting): "Behind the distinction between 'substantial' and 'incidental' burdens upon interstate commerce is a recognition that, in the absence of federal regulation, it is sometimes - of course not always - of greater importance that local interests be protected than that interstate commerce be not touched." Hughes, 441 U.S. at 343 n. 7 (Rehnquist, J., dissenting). In his dissent to Sporhase, Rehnquist held out the possibility of decidi g that groundwater is not even an article of commerce in the first place. See Sporhase, 4 8 U.S. at 961-62. He went on to opine that the Court had made it clear since Ka sas v. Colorado, 185 U.S. 125 (1902) that . . 16