The Volokh Conspiracy

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Obtaining Happiness by Viewing Predators


From Nevada Wildlife Alliance v. Nevada Dep't of Wildlife, decided Oct. 22, 2021 by the Nevada Supreme Court but just posted on Westlaw:

NRS 502.253(4)(b) provides that the Department of Wildlife "[s]hall not adopt any program for the management and control of predatory wildlife developed pursuant to this section that provides for the expenditure of less than 80 percent of the amount of money collected pursuant to subsection 1 … for the purposes of lethal management and control of predatory wildlife.

NRS 502.253(4)(b) … obligates the Department of Wildlife to dedicate a minimum percentage [80%] of funds collected to the lethal management and control of predatory wildlife, violates Nevada's equal protection and due process clauses….

At the outset, we assume, without deciding, that the statute implicates equal protection analysis because it has a disparate impact on "similarly situated" people—specifically those like appellants, who enjoy viewing predatory wildlife, and big-game hunters…. Applying equal protection analysis, the next question is whether the challenged statute burdens a fundamental interest in a discriminatory way; if so, the statute is subject to strict judicial scrutiny.

In this case, the statute does not burden a fundamental interest because the interest appellants assert—viewing and enjoying wildlife—is not "explicitly or implicitly guaranteed by the Constitution." Though appellants argue that a fundamental interest should extend from the inalienable rights guarantee of the Nevada Constitution, Nev. Const. art. 1, § 1 (providing that Nevada persons have "certain inalienable rights among which are those of enjoying and defending life and liberty; Acquiring, Possessing and Protecting property and pursuing and obtaining safety and happiness"), appellants do not provide support for extending this clause to the right to view wildlife that they assert. Appellants have not argued that the statute burdens the "traditionally recognized core of the right" to pursue happiness, or impinges on any other principled limitation on that right.

Appellants have not argued that intermediate scrutiny applies, and because appellants have not demonstrated that NRS 502.253(4)(b) burdens a fundamental interest in a discriminatory way, their equal protection challenge receives rational basis review, which asks whether the challenged classification is "rationally related to a legitimate governmental interest."

Here, there are rational bases for the statute—such as the Legislature's belief that predator control will support animals in need of conservation by allowing them to respond more quickly to favorable habitat conditions—and that is all that is required…. "[T]he Constitution does not require the [State] to draw the perfect line nor even to draw a line superior to some other line it might have drawn. It requires only that the line actually drawn be a rational line." … Further, while appellants urge that, under state constitutional doctrine, there must be a basis in fact for a statute's asserted rational basis, that proposition is at odds with both the Supreme Court's and this court's long-standing formulation of the rational basis standard.

Alternatively, appellants argue that NRS 502.253(4) (b) burdens their fundamental right to view wildlife, specifically predatory wildlife, which they assert is a right that falls within Nevada's guarantee of substantive due process. The Due Process Clause "protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition.'" … Appellants assert they have a fundamental right to view and enjoy predatory wildlife, but they fail to explain how this right is rooted in the country's or state's history and tradition, or the text of either the state or federal constitution….

In sum, the statute withstands rational basis review, and respondents were entitled to summary judgment.