U.S. Supreme Court Hughes v. Oklahoma, 441
U.S. 322 (1979) Hughes v. Oklahoma No. 77-1439 Argued January 9,
1979 Decided April 24,
1979 441
U.S. 322 APPEAL FROM THE COURT OF CRIMINAL
APPEALS OF OKLAHOMA Syllabus An Oklahoma statute prohibits transporting or shipping outside
the State for sale natural minnows seined or procured from waters
within the State. Appellant, who holds a Texas license to operate a
commercial minnow business in Texas, was charged with violating the
Oklahoma statute by transporting from Oklahoma to Texas a load of
natural minnows purchased from a minnow dealer licensed to do
business in Oklahoma. Appellant's defense that the Oklahoma statute
was unconstitutional because it was repugnant to the Commerce
Clause was rejected, and he was convicted and fined. The Oklahoma
Court of Criminal Appeals affirmed, relying on Geer v.
Connecticut, 161 U. S. 519 ,
which had sustained against a Commerce Clause challenge a
Connecticut statute forbidding the transportation beyond the State
of game birds that had been lawfully killed within the State. The Geer decision rested on the holding that no interstate
commerce was involved, because the State had the power, as
representative for its citizens, who "owned" in common all wild
animals within the State, to control the "ownership" of game that
had been lawfully reduced to possession, and had exercised its
power by prohibiting its removal from the State. Held: The Oklahoma statute is repugnant to the Commerce
Clause. Pp. 441 U. S.
325 -339.

															(a) Geer v. Connecticut, supra, is overruled. Time has
revealed the error of the result reached in Geer through
its application of the 19th-century legal fiction of state
ownership of wild animals. Challenges under the Commerce Clause to
state regulations of wild animals should be considered according to
the same general rule applied to state regulations of other natural
resources. Pp. 441 U. S.
326 -335.

															(b) Under that general rule, this Court must inquire whether the
challenged statute regulates evenhandedly with only "incidental"
effects on interstate commerce, or discriminates against interstate
commerce either on its face or in practical effect; whether the
statute serves a legitimate local purpose; and, if so, whether
alternative means could promote this local purpose as well without
discriminating against interstate commerce. P. 441 U. S.
336 .

															(c) The Oklahoma statute, on its face, discriminates against
interstate Page 441 U. S. 323 commerce by forbidding the transportation of natural minnows out
of the State for purposes of sale, and thus overtly blocking the
flow of interstate commerce at the State's border. The statute is
not a "last ditch" attempt at conservation after nondiscriminatory
alternatives have proved unfeasible. It is, rather, a choice of the
most discriminatory means, even though nondiscriminatory
alternatives would seem likely to fulfill the State's purported
legitimate local purpose of conservation more effectively. Pp. 441 U. S.
336 -338.

															(d) States may promote the legitimate purpose of protecting and
conserving wild animal life within their borders only in ways
consistent with the basic principle that the pertinent economic
unit is the Nation; and when a wild animal becomes an article of
commerce, its use cannot be limited to the citizens of one State to
the exclusion of citizens of another State. Pp. 338-339. 572 P.2d
573 , reversed.

															BRENNAN, J., delivered the opinion of the Court, in which
STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ.,
joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER,
C.J., joined, post, p. 441 U. S.
339 .

															MR. JUSTICE BRENNAN delivered the opinion of the Court.

															The question presented for decision is whether Okla.Stat., Tit.
29, § 4-115(B) (Supp. 1978), violates the Commerce Clause, Art. I,
§ 8, cl. 3, of the United States Constitution, insofar as it
provides that "[n]o person may transport or ship minnows for sale
outside the state which were seined or procured within the waters
of this state. . . ." [ Footnote
1 ] Page 441 U. S. 324 Appellant William Hughes holds a Texas license to operate a
commercial minnow business near Wichita Falls, Tex. An Oklahoma
game ranger arrested him on a charge of violating § 4-115(B) by
transporting from Oklahoma to Wichita Falls a load of natural
minnows purchased from a minnow dealer licensed to do business in
Oklahoma. Hughes' defense that § 4-115(B) was unconstitutional
because it was repugnant to the Commerce Clause was rejected, and
he was convicted and fined. The Oklahoma Court of Criminal Appeals
affirmed, stating:

															"The United States Supreme Court has held on numerous occasions
that the wild animals and fish within a state's border are, so far
as capable of ownership, owned by the state in its sovereign
capacity for the common Page 441 U. S. 325 benefit of all its people. Because of such ownership, and in the
exercise of its police power, the state may regulate and control
the taking, subsequent use and property rights that may be acquired
therein. Lacoste v. Department of Conservation, 263 U. S.
545 . . . ; Geer v. State of Connecticut, 161 U. S.
519 . . . . As stated in Lacoste, supra, protection of the wildlife of a state is peculiarly within the
police power of the state, an the state has great latitude in
determining what means are appropriate for its protection."

															". . . Oklahoma law does not prohibit commercial minnow
hatcheries within her borders from selling stock minnows to anyone,
resident or nonresident, and minnows purchased therefrom may be
freely exported. However, the law served to protect against the
depletion of minnows in Oklahoma's natural streams through
commercial exportation. No person is allowed to export natural
minnows for sale outside of Oklahoma. Such a prohibition is not
repugnant to the commerce clause. . . ." 572 P.2d
573 , 575 (1977). We noted probable jurisdiction, 439 U.S. 815
(1978). We reverse. Geer v. Connecticut, 161 U.
S. 519 (1896), on which the Court of Criminal Appeals
relied, is overruled. In that circumstance, § 4-115(B) cannot
survive appellant's Commerce Clause attack. I The few simple words of the Commerce Clause -- "The Congress
shall have Power . . . To regulate Commerce . . . among the several
States . . ." -- reflected a central concern of the Framers that
was an immediate reason for calling the Constitutional Convention:
the conviction that, in order to succeed, the new Union would have
to avoid the tendencies toward economic Balkanization that had
plagued relations among the Colonies and later among the States
under the Articles of Confederation. Page 441 U. S. 326 See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525 , 336 U. S.
533 -534 (1949). The Commerce Clause has accordingly been
interpreted by this Court not only as an authorization for
congressional action, but also, even in the absence of a
conflicting federal statute, as a restriction on permissible state
regulation. [ Footnote 2 ] The
cases defining the cope of permissible state regulation in areas of
congressional silence reflect an often controversial evolution of
rules to accommodate federal and state interests. [ Footnote 3 ] Geer v. Connecticut was
decided relatively early in that evolutionary process. We hold that
time has revealed the error of the early resolution reached in that
case, and accordingly, Geer is today overruled. Page 441 U. S. 327 A Geer sustained against a Commerce Clause challenge a
statute forbidding the transportation beyond the State of game
birds that had been lawfully killed within the State. [ Footnote 4 ] The decision rested on the
holding that no interstate commerce was involved. This conclusion
followed, in turn, from the view that the State had the power, as
representative for its citizens, who "owned" in common all wild
animals within the State, to control not only the taking of game
but also the ownership of game that had been lawfully reduced to
possession. [ Footnote 5 ] By
virtue of this power, Connecticut could qualify the ownership of
wild game taken within the State by, for example, prohibiting its
removal from the State: "The common ownership imports the right to
keep the property, if the sovereign so chooses, always within its
jurisdiction for every purpose." 161 U.S. at 161 U. S. 530 .
Accordingly, the State's power to qualify ownership raised serious
doubts whether the sale or exchange of wild game constituted
"commerce" at all; in any event, the Court held that the
qualification imposed by the challenged statute removed any
transactions involving wild game killed in Connecticut from interstate commerce. [ Footnote 6 ] Page 441 U. S. 328 Mr. Justice Field and the first Mr. Justice Harlan dissented,
rejecting as artificial and formalistic the Court's analysis of
"ownership" and "commerce" in wild game. They would have affirmed
the State's power to provide for the protection of wild game, but
only "so far as such protection . . . does not contravene the power
of Congress in the regulation of interstate Page 441 U. S. 329 commerce." [ Footnote 7 ]
Their view was that,

															"[w]hen any animal . . . is lawfully killed for the purposes of
food or other uses of man, it becomes an article of commerce, and
its use cannot be limited to the citizens of one State to the
exclusion of citizens of another State. [ Footnote 8 ]" B The view of the Geer dissenters increasingly prevailed
in subsequent cases. Indeed, not only has the Geer analysis been rejected when natural resources other than wild game
were involved, but even state regulations of wild game have been
held subject to the strictures of the Commerce Clause under the
pretext of distinctions from Geer. The erosion of Geer began only 15 years after it was
decided. A Commerce Clause challenge was addressed to an Oklahoma
statute designed to prohibit the transportation beyond the State of
natural gas produced by wells within the State. West v. Kansas
Natural Gas Co., 221 U. S. 229 (1911). Based on reasoning parallel to that in Geer, Oklahoma urged its right to "conserve" the gas for the use of its
own citizens, stressing the limited supply and the absence of
alternative sources of fuel within the State. Nevertheless, the
Court, in a passage reminiscent of the dissents in Geer, condemned the obvious protectionist motive in the Oklahoma statute
and rejected the State's arguments with a powerful reaffirmation of
the vision of the Framers:

															"The statute of Oklahoma recognizes [gas] to be a subject of
intrastate commerce, but seeks to prohibit it from being the
subject of interstate commerce, and this is the purpose of its
conservation. . . . If the States have such power, a singular
situation might result. Pennsylvania might keep its coal, the
Northwest its timber, the mining Page 441 U. S. 330 States their minerals. And why may not the products of the field
be brought within the principle? Thus enlarged, or without that
enlargement, its influence on interstate commerce need not be
pointed out. To what consequences does such power tend? If one
State has it, all States have it; embargo may be retaliated by
embargo, and commerce will be halted at state lines. And yet we
have said that, 'in matters of foreign and interstate commerce,
there are no state lines.' In such commerce, instead of the States,
a new power appears, and a new welfare, a welfare which transcends
that of any State. But rather let us say it is constituted of the
welfare of all of the States, and that of each State is made the
greater by a division of its resources, natural and created, with
every other State, and those of every other State with it. This was
the purpose, as it is the result, of the interstate commerce clause
of the Constitution of the United States. If there is to be a
turning backward, it must be done by the authority of another
instrumentality than a court."

															221 U.S. at 221 U. S.
255 -256. The Court distinguished discriminatory or
prohibatory regulations offensive to the Commerce Clause, such as
the Oklahoma statute, from a valid "exercise of the police power to
regulate the taking of natural gas" that was "universal in its
application and justified by the nature of the gas and which
allowed its transportation to other states." Id. at 221 U. S. 257 ; see id. at 221 U. S.
252 -254 (distinguishing Ohio Oil Co. v.
Indiana, 177 U. S. 190 (1900)).

															In subsequent Commerce Clause challenges to state regulation of
exports of natural resources, the West analysis emerged as
the dominant approach. See, e.g., Pennsylvania v. West
Virginia, 262 U. S. 553 , 262 U. S.
598 -600 (1923); [ Footnote 9 ] H. P. Hood
Sons , Page 441 U. S. 331 Inc. v. Du Mond, 336 U. S. 525 (1949). Today's principle is that stated in Pike v. Bruce
Church, Inc., 397 U. S. 137 , 397 U. S. 142 (1970):

															"Where the statute regulates evenhandedly to effectuate a
legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the
putative local benefits. . . . If a legitimate local purpose is
found, then the question becomes one of degree. And the extent of
the burden that will be tolerated will, of course, depend on the
nature of the local interest involved, and on whether it could be
promoted as well with a lesser impact on interstate
activities."

															(Citations omitted.)

															This formulation was employed only last Term to strike down New
Jersey's attempt to "conserve" the natural resource of landfill
areas within the State for the disposal of waste generated within
the State. Philadelphia v. New Jersey, 437 U.
S. 617 , 437 U. S. 624 (1978).

															The Geer analysis has also been eroded to the point of
virtual extinction in cases involving regulation of wild animals.
The first challenge to Geer's theory of a State's power
over wild animals came in Missouri v. Holland, 252 U. S. 416 (1920). The State of Missouri, relying on the theory of state
ownership of wild animals, attacked the Migratory Bird Treaty Act
on the ground that it interfered with the State's control over wild
animals within its boundaries. Writing for the Court, Mr. Justice
Holmes upheld the Act as a proper Page 441 U. S. 332 exercise of the treatymaking power. He commented in passing on
he artificiality of the Geer rationale: "To put the claim
of the State upon title is to lean upon a slender reed." 252 U.S.
at 252 U. S.
434 . Foster-Fountain Packing Co. v. Haydel, 278 U. S.
1 (1928), undermined Geer even more directly. A
Louisiana statute forbade the transportation beyond the State of
shrimp taken in Louisiana waters until the heads and shells had
been removed. [ Footnote 10 ]
The statute clearly relied on the Geer "state control of
ownership" rationale. [ Footnote
11 ] Anyone lawfully taking shrimp from Louisiana waters was
granted "a qualified interest which may be sold within the State."
Only after the head and shell Page 441 U. S. 333 had been removed within the State did the taker or possessor
acquire "title and the right to sell and ship the same beyond
the limit[s] of the State, without restriction or reservation.'"
278 U.S. at 278 U. S.
8 . Ignoring the niceties of "title" to the shrimp and concentrating
instead on the purposes and effects of the statute, Foster-Fountain Packing struck down the statute as
economic protectionism abhorrent to the Commerce Clause. The
analysis resembled that employed in the natural gas cases, which
were cited with approval, id. at 278 U. S. 10 -11, 278 U. S. 13 .
[ Footnote 12 ] Geer was distinguished on the ground that, there, "[n]o part of the game
was permitted by the statute to become an article of interstate
commerce." 278 U.S. at 278 U. S. 12 .
[ Footnote 13 ] Limiting Geer to cases involving complete embargoes on interstate
commerce in a wild animal created the anomalous result that the
most burdensome laws enjoyed the most protection from Commerce
Clause attack. Foster-Fountain Packing's implicit shift away from Geer's formalistic "ownership" analysis became explicit in Toomer v. Witsell, 334 U. S. 385 , 334 U. S. 402 (1948), which struck down as violations of the Commerce Clause and
the Privileges and Page 441 U. S. 334 Immunities Clause certain South Carolina laws discriminating
against out-of-state commercial fishermen:

															"The whole ownership theory, in fact, is now generally regarded
as but a fiction expressive in legal shorthand of the importance to
its people that a State have power to preserve and regulate the
exploitation of an important resource. And there is no necessary
conflict between that vital policy consideration and the
constitutional command that the State exercise that power, like its
other powers, so as not to discriminate without reason against
citizens of other States."

															Although stated in reference to the Privileges and Immunities
Clause challenge, this reasoning is equally applicable to the
Commerce Clause challenge. [ Footnote 14 ] Douglas v. Seacoast Products, Inc., 431 U. S. 265 (1977), dispelled any doubts on that score. In rejecting the
argument that Virginia's "ownership" of fish swimming in its
territorial waters empowered the State to forbid fishing by
federally licensed ships owned by nonresidents while permitting
residents to fish, Seacoast Products explicitly embraced
the analysis of the Geer dissenters:

															"A State does not stand in the same position as the owner of a
private game preserve, and it is pure fantasy to talk of 'owning'
wild fish, birds, or animals. Neither the States nor the Federal
Government, any more than a hopeful fisherman or hunter, has title
to these creatures until they are reduced to possession by skillful
capture. . . . Geer v. Connecticut, 161 U. S.
519 , 161 U. S. 539 -540 (1896) Page 441 U. S. 335 (Field, J., dissenting). The 'ownership' language of cases such
as those cited by appellant must be understood as no more than a
19th-century legal fiction expressing 'the importance to its people
that a State have power to preserve and regulate the exploitation
of an important resource.' [Citing Toomer. ] Under modern
analysis, the question is simply whether the State has exercised
its police power in conformity with the federal laws and
Constitution."

															431 U.S. at 431 U. S. 284 .
[ Footnote 15 ] C The case before us is the first in modern times to present facts
essentially on all fours with Geer. [ Footnote 16 ] We now conclude that challenges
under the Commerce Clause to state regulations of wild animals
should be considered according to the same general rule applied to
state regulations of other natural resources, and therefore
expressly overrule Geer. We thus bring our analytical
framework into conformity with practical realities. Overruling Geer also eliminates the anomaly, created by the decisions
distinguishing Geer, that statutes imposing the most
extreme burdens on interstate commerce (essentially total
embargoes) were the most immune from challenge. At the same time,
the general rule we adopt in this case makes ample allowance for
preserving, in ways not Page 441 U. S. 336 inconsistent with the Commerce Clause, the legitimate state
concerns for conservation and protection of wild animals underlying
the 19th-century legal fiction of state ownership. II We turn then to the question whether the burden imposed on
interstate commerce in wild game by § 4-115(B) is permissible under
the general rule articulated in our precedents governing other
types of commerce. See, e.g., Pike v. Bruce Church, Inc., 397 U.S. at 397 U. S. 142 ,
quoted supra at 441 U.S.
331 . Under that general rule, we must inquire (1) whether
the challenged statute regulates evenhandedly with only
"incidental" effects on interstate commerce, or discriminates
against interstate commerce either on its face or in practical
effect; (2) whether the statute serves a legitimate local purpose;
and, if so, (3) whether alternative means could promote this local
purpose as well without discriminating against interstate commerce.
The burden to show discrimination rests on the party challenging
the validity of the statute, but,

															"[w]hen discrimination against commerce . . . is demonstrated,
the burden falls on the State to justify it both in terms of the
local benefits flowing from the statute and the unavailability of
nondiscriminatory alternatives adequate to preserve the local
interests at stake." Hunt v. Washington Apple Advertising Comm'n, 432 U. S. 333 , 432 U. S. 353 (1977). Furthermore, when considering the purpose of a challenged
statute, this Court is not bound by "[t]he name, description or
characterization given it by the legislature or the courts of the
State," but will determine for itself the practical impact of the
law. Lacoste v. Louisiana Dept. of Conservation, 263 U. S. 545 , 263 U. S. 550 (1924); see Foster-Fountain Packing Co. v. Haydel, 278
U.S. at 278 U. S. 10 ; Pike v. Bruce Church, Inc., supra. Section 4-115(B), on its face, discriminates against interstate
commerce. It forbids the transportation of natural minnows Page 441 U. S. 337 out of the State for purposes of sale, and thus "overtly blocks
the flow of interstate commerce at [the] State's borders." Philadelphia v. New Jersey, 437 U.S. at 437 U. S. 624 .
Such facial discrimination, by itself, may be fatal defect,
regardless of the State's purpose, because "the evil of
protectionism can reside in legislative means, as well as
legislative ends." Id. at 437 U. S. 626 .
[ Footnote 17 ] At a minimum,
such facial discrimination invokes the strictest scrutiny of any
purported legitimate local purpose and of the absence of
nondiscriminatory alternatives.

															Oklahoma argues that § 4-115(B) serves a legitimate local
purpose in that it is "readily apparent as a conservation measure."
Brief for Appellee 8. The State's interest in maintaining the
ecological balance in state waters by avoiding the removal of
inordinate numbers of minnows may well qualify as a legitimate
local purpose. We consider the States' interests in conservation
and protection of wild animals as legitimate local purposes similar
to the States' interests in protecting the health and safety of
their citizens. See, e.g., Firemen v. Chicago, R.I. & P. R.
Co., 393 U. S. 129 (1968). But the scope of legitimate state interests in
"conservation" is narrower under this analysis than it was under Geer. A State may no longer "keep the property, if the
sovereign so chooses, always within its jurisdiction for every
purpose." Geer v. Connecticut, 161 U.S. at 161 U. S. 530 .
The fiction of state ownership may no longer be used to force those
outside the State to bear the full costs of "conserving" the wild
animals within its borders when equally effective nondiscriminatory
conservation measures are available.

															Far from choosing the least discriminatory alternative, Page 441 U. S. 338 Oklahoma has chosen to "conserve" its minnows in the way that
most overtly discriminates against interstate commerce. The State
places no limits on the numbers of minnows that can be taken by
licensed minnow dealers; nor does it limit in any way how these
minnows may be disposed of within the State. [ Footnote 18 ] Yet it forbids the transportation
of any commercially significant number of natural minnows out of
the State for sale. [ Footnote
19 ] Section 4-115(B) is certainly not a "last ditch" attempt at
conservation after nondiscriminatory alternatives have proved
unfeasible. It is rather a choice of the most discriminatory means
even though nondiscriminatory alternatives would seem likely to
fulfill the State's purported legitimate local purpose more
effectively. [ Footnote
20 ]

															We therefore hold that § 4-115(B) is repugnant to the Commerce
Clause. III The overruling of Geer does not leave the States
powerless to protect and conserve wild animal life within their
borders. Today's decision makes clear, however, that States may
promote Page 441 U. S. 339 this legitimate purpose only in ways consistent with the basic
principle that "our economic unit is the Nation," H. P. Hood
& Sons, Inc. v. Du Mond, 336 U.S. at 336 U. S. 537 ,
and that, when a wild animal "becomes an article of commerce . . .
, its use cannot be limited to the citizens of one State to the
exclusion of citizens of another State." Geer v. Connecticut,
supra at 161 U. S. 538 (Field, J., dissenting). Reversed. [ Footnote 1 ]

															Section 4-115 provides in full:

															"A. No person may ship or transport minnows for sale into this
state from an outside source without having first procured a
license for such from the Director."

															"B. No person may transport or ship minnows for sale outside the
state which were seined or procured within the waters of this state
except that:"

															"1. Nothing contained herein shall prohibit any person from
leaving the state possessing three (3) dozen or less minnows;"

															"2. Nothing contained herein shall prohibit sale and shipment of
minnows raised in a regularly licensed commercial minnow
hatchery."

															"C. The fee for a license under this section shall be:"

															"1. For residents, One Hundred Dollars ($100.00);"

															"2. For nonresidents, Three Hundred Dollars ($300.00)."

															"D. Any person convicted of violating any provisions of this
section shall be punished by a fine of not less than One Hundred
Dollars ($100.00) nor more than Two Hundred Dollars ($200.00)."

															The prohibition against transportation out of State for sale
thus does not apply to hatchery-bred minnows, but only to "natural"
minnows seined or procured from waters within the State.

															Section 4-115(B) is part of the Oklahoma Wildlife Conservation
Code. Another provision of that Code requires that persons have a
minnow dealer's license before they can lawfully seine or trap
minnows within the State except for their own use as bait -- §
4-116 (Supp. 1978), but no limit is imposed on the number of
minnows a licensed dealer may take from state waters. Nor is there
any regulation except § 4-115(B) concerning the disposition of
lawfully acquired minnows; they may be sold within Oklahoma to any
person and for any purpose, and may be taken out of the State for
any purpose except sale.

															[ Footnote 2 ]

															The Commerce Clause is one of the most prolific sources of
national power and an equally prolific source of conflict with
legislation of the state. While the Constitution vests in Congress
the power to regulate commerce among the states, it does not say
what the states may or may not do in the absence of congressional
action, nor how to draw the line between what is and what is not
commerce among the states. Perhaps even more than by interpretation
of its written word, this Court has advanced the solidarity and
prosperity of this Nation by the meaning it has given to these
great silences of the Constitution. H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. at
534-535. Philadelphia v. New Jersey, 437 U.
S. 617 , 437 U. S.
621 -623 (1978), made clear that there is no "two-tiered
definition of commerce." The definition of "commerce" is the same
when relied on to strike down or restrict state legislation as when
relied on to support some exertion of federal control or
regulation.

															[ Footnote 3 ] See, e.g., 22 U. S. Ogden, 9 Wheat. 1, 209 (1824); Willson v. Black Bird Creek
Marsh Co. , 2 Pet. 245 (1829); Cooley v.
Board of Wardens , 12 How. 299 (1852); Port
Richmond & Bergen Point Ferry Co. v. Board of Chosen
Freeholders, 234 U. S. 317 (1914); Di Santo v. Pennsylvania, 273 U. S.
34 (1927); Parker v. Brown, 317 U.
S. 341 (1943); Southern Pacific Co. v. Arizona ex
rel. Sullivan, 325 U. S. 761 (1945); H. P. Hood & Sons, Inc. v. Du Mond, supra; Pike v.
Bruce Church, Inc., 397 U. S. 137 (1970). See generally, F. Frankfurter, The Commerce Clause
Under Marshall, Taney and Waite (1937); Dowling, Interstate
Commerce and State Power, 27 Va.L.Rev. 1 (1940); Dowling,
Interstate Commerce and State Power -- Revised Version, 47
Colum.L.Rev. 547 (1947).

															[ Footnote 4 ]

															"[T]he sole issue which the case presents is was it lawful under
the Constitution of the United States (section 8, Article I) for
the State of Connecticut to allow the killing of birds within the
State during a designated open season, to allow such birds, when so
killed, to be used, to be sold and to be bought for use within the
State, and yet to forbid their transportation beyond the State? Or,
to state it otherwise, had the State of Connecticut the power to
regulate the killing of game within her borders so as to confine
its use to the limits of the State and forbid its transmission
outside of the State?"

															161 U.S. at 161 U. S.
522 .

															[ Footnote 5 ] Id. at 161 U. S.
522 -529. The Court has recognized that Geer's analysis of the authorities on this issue is open to question. Toomer v. Witsell, 334 U. S. 385 , 334 U. S. 402 n. 37 (1948).

															[ Footnote 6 ]

															"The qualification which forbids [the game's] removal from the
State necessarily entered into and formed part of every transaction
on the subject, and deprived the mere sale or exchange of these
articles of that element of freedom of contract and of full
ownership which is an essential attribute of commerce. Passing,
however, as we do, the decision of this question, and granting that
the dealing in game killed within the State, under the provision in
question, created internal State commerce, it does not follow that
such internal commerce became necessarily the subject matter of
interstate commerce, and therefore under the control of the
Constitution of the United States."

															" * * * *" ". . . The power of the State to control the killing of and
ownership in game being admitted, the commerce in game, which the
state law permitted, was necessarily only internal commerce, since
the restriction that it should not become the subject of external
commerce went along with the grant, and was a part of it."

															161 U.S. at 161 U. S.
530 -532.

															Our Brother REHNQUIST suggests that the Court in Geer offered as an "alternative basis for its decision" (in the final
paragraph of its 15-page opinion) that the

															"State, in the exercise of its police power, could act to
preserve for its people a valuable food supply, even though
interstate commerce was remotely and indirectly affected." Post at 441 U. S. 340 n. 3. That this was not an "alternative basis," however, is made
clear in a sentence not quoted by our Brother REHNQUIST:

															"The power of a State to protect by adequate police regulation
its people against the adulteration of articles of food, . . .
although in doing so commerce might be remotely affected,
necessarily carries with it the existence of a like power to
preserve a food supply which belongs in common to all the
people of the State, which can only become the subject of ownership
in a qualified way, and which can never be the object of commerce
except with the consent of the State and subject to the conditions
which it may deem best to impose for the public good. "

															161 U.S. at 161 U. S. 535 (emphasis added).

															Thus, rather than an "alternative basis" independent of the
"state ownership" and "no interstate commerce" rationales, this
"preservation of a valuable resource" rationale was premised on
those rationales. In any event, even if an "alternative basis,"
this rationale has met the same fate as Geer's primary
rationale. See infra at 441 U. S.
329 -331, and n. 9.

															[ Footnote 7 ]

															161 U.S. at 161 U. S. 541 (Field, J., dissenting); see id. at 161 U. S. 543 (Harlan, J., dissenting) .

															[ Footnote 8 ] Id. at 161 U. S. 538 , 161 U. S.
541 -542 (Field, J., dissenting); see id. at 161 U. S.
543 -544 (Harlan, J., dissenting).

															[ Footnote 9 ]

															The inconsistency between the result in this case and that in Geer was not overlooked by the dissenting Justices. See Pennsylvania v. West Virginia, 262 U.S. at 262 U. S. 601 (Holmes, J., dissenting). Significantly, our Brother REHNQUIST
relies on this dissent in his discussion of the "alternative basis"
of Green -- the "preservation of a valuable natural
resource" rationale. See n 6, supra; post at 441 U. S.
340 -341, n. 3. The Court opinion in Pennsylvania v.
West Virginia, like that in West, expressly rejected
this argument along with the "no interstate commerce" rationale.
262 U.S. at 262 U. S.
599 -600.

															[ Footnote 10 ]

															The law challenged in Foster-Fountain Packing Co. was
passed in July, 1926. The state legislature may have been
encouraged to take such action by certain language in Lacoste
v. Louisiana Dept. of Conservation, 263 U.
S. 545 (1924), language also relied on by the Oklahoma
Court of Criminal Appeals in this case. Lacoste upheld a
Louisiana "severance" tax on the skins of all wild fur-bearing
animals and alligators taken in the State. The Court cited Geer for the proposition that:

															"The wild animals within its borders are, so far as capable of
ownership, owned by the State in its sovereign capacity for the
common benefit of all of its people. Because of such ownership, and
in the exercise of its police power, the State may regulate and
control the taking, subsequent use and property rights that may be
acquired therein."

															263 U.S. at 236 U. S. 549 .

															Nevertheless, Lacoste expressly declined to uphold the
tax "by virtue of the power of the State to prohibit, and therefore
to condition, the removal of wild game from the State." Ibid. Rather than reach this issue, the Court upheld the
measure as a valid police regulation designed to conserve and
protect wild animals, noting that the tax applied to all skins
taken within the State, whether kept within the State or shipped
out. Id. at 236 U. S.
550 -551. Thus, despite its citation of Geer,
Lacoste is actually more compatible with the cases following
the views of the Justices dissenting in Geer. [ Footnote 11 ]

															The preamble to the Act read in part as follows:

															"To declare all shrimp and parts thereof in the waters of the
State to be the property of the State of Louisiana, and to provide
the manner and extent of their reduction to private ownership. . .
." Foster-Fountain Packing Co. v. Haydel, 278 U.S. at 278 U. S. 5 n.

															[ Footnote 12 ]

															The Court cited these cases for the proposition that

															"[a] State is without power to prevent privately owned articles
of trade from being shipped and sold in interstate commerce on the
ground that they are required to satisfy local demands or because
they are needed by the people of the State." Id. at 278 U. S. 10 .

															[ Footnote 13 ]

															"As the representative of its people, the State might have
retained the shrimp for consumption and use therein. . . . But by
permitting its shrimp to be taken and all the products thereof to
be shipped and sold in interstate commerce, the State necessarily
releases its hold and, as to the shrimp so taken, definitely
terminates its control. Clearly such authorization and the taking
in pursuance thereof put an end to the trust upon which the State
is deemed to own or control the shrimp for the benefit of its
people. And those taking the shrimp under the authority of the Act
necessarily thereby become entitled to the rights of private
ownership and the protection of the commerce clause." Id. at 278 U. S. 13 .

															[ Footnote 14 ] See Hicklin v. Orbeck, 437 U.
S. 518 , 437 U. S.
531 -532 (1978). The Court distinguished Geer on
the same basis used in Foster-Fountain Packing Co., 334
U.S. at 334 U. S.
404 -406. Takahashi v. Fish & Game Comm'n, 334 U. S. 410 , 334 U. S.
420 -421 (1948), decided the same day as Toomer, reviewed the cases distinguishing and questioning Geer and
found the State's claim to "ownership" inadequate to justify a ban
on commercial fishing by alien residents.

															[ Footnote 15 ]

															"In more recent years . . . the Court has recognized that the
States' interest in regulating and controlling those things they
claim to 'own,' including wildlife, is by no means absolute. States
may not compel the confinement of the benefits of their resources,
even their wildlife, to their own people whenever such hoarding and
confinement impedes interstate commerce. Foster-Fountain
Packing Co. v. Haydel, 278 U. S. 1 (1928); Pennsylvania v. West Virginia, 262 U. S.
553 (1923); West v. Kansas Natural Gas Co., 221 U. S.
229 (1911)." Baldwin v. Montana Fish & Game Comm'n, 436 U.
S. 371 , 436 U. S.
385 -386 (1978).

															[ Footnote 16 ] See, e.g., Douglas v. Seacoast Products, Inc., 431 U. S. 265 , 431 U. S. 285 n. 21 (1977).

															[ Footnote 17 ]

															"[W]hatever [a State's] ultimate purpose, it may not be
accomplished by discriminating against articles of commerce coming
from outside the State unless there is some reason, apart from
their origin, to treat them differently." Philadelphia v. New Jersey, 437 U.S. at 437 U. S.
626 -627.

															[ Footnote 18 ] See n 1, supra. [ Footnote 19 ]

															Section 4-115(B) does not apply to persons transporting three
dozen or less natural minnows outside the State. See n 1, supra. [ Footnote 20 ]

															In its brief, Oklahoma argues, apparently for the first time,
that the discrimination against out-of-state sales of natural
minnows is justified because minnows purchased in the State are
more likely to be used for bait in state waters. Brief for Appellee
3. The State contends that minnows "returned" to state waters as
bait do not upset the ecological balance as much as those that
never "return." The late appearance of this argument and the total
absence of any record support for the questionable factual
assumptions that underlie it give it the flavor of a post
hoc rationalization. The State's bare assertion is certainly
inadequate to survive the scrutiny invoked by the facial
discrimination of § 4-115(b). In any case, Oklahoma itself concedes
that the "return" of natural minnows as bait is irrelevant to most
aspects of preserving ecological balance. Brief for Appellee 4.

															MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting.

															This Court's seeming preoccupation in recent years with laws
relating to wildlife must, I suspect, appear curious to casual
observers of this institution. [ Footnote 2/1 ] It is no more curious, however, than this
Court's recent pronouncements on the validity of Geer v.
Connecticut, 161 U. S. 519 (1896). For less than one year ago, we unreservedly reaffirmed the
principles announced in Geer. Baldwin v. Montana Fish
& Game Comm'n, 436 U. S. 371 , 436 U. S. 386 (1978). Today, the Court overrules that decision. Because I
disagree with the Court's overruling of Geer and holding
that Oklahoma's law relating to the sale of minnows violates the
Commerce Clause, I dissent.

															In its headlong rush to overrule Geer, the Court
characterizes that decision as "rest[ing] on the holding that no
interstate commerce was involved." Ante at 441 U. S. 327 .
It is true that one of the rationales relied on by the Geer Court was that the State could exercise its power to
control the killing and ownership of animals ferae naturae to prohibit such game Page 441 U. S. 340 from leaving the borders of the State, and thus prevent the game
from ever becoming the objects of interstate commerce. 161 U.S. at 161 U. S.
530 -532. Since the Court, in Geer, was of the
view that the challenged statute effectively prevented certain game
from entering the stream of interstate commerce, there could be no
basis for a Commerce Clause challenge to the State's law. Id. at 161 U. S. 530 , 161 U. S. 532 .
[ Footnote 2/2 ] I do not dispute the
Court's rejection of this theory; as the Court points out, this
rationale was rejected long before today. Ante at 441 U. S. 329 ; see West v. Kansas Natural Gas Co., 221 U.
S. 229 (1911). My objection is that this line of
reasoning, while undoubtedly considered important by the majority
in Geer, is unnecessary to sustain that decision [ Footnote 2/3 ] and is unneeded in the
disposition of the present Page 441 U. S. 341 case. And no one -- not the Oklahoma Court of Criminal Appeals
or the State in this Court -- contends that the minnows at issue
are not the subjects of interstate commerce. It is obvious that the
Court has simply set this theory up as a sort of strawman to
facilitate the toppling of a decision which, in other respects,
enunciates principles that have remained valid and vital, albeit
somewhat refined, at least until today. [ Footnote 2/4 ]

															The Court in Geer expressed the view derived from Roman
law that the wild fish and game located within the territorial
limits of a State are the common property of its citizens, and that
the State, as a kind of trustee, may exercise this common
"ownership" for the benefit of its citizens. 161 U.S. at 161 U. S. 529 .
Admittedly, a State does not "own" the wild creatures within its
borders in any conventional sense of the word. [ Footnote 2/5 ] Baldwin v. Montana Fish &
Game Comm'n, supra at 436 U. S. 386 ; Douglas v. Seacoast Products,
Inc., 431 U. S. 265 , 431 U. S. 284 (1977); Toomer v. Witsell, 334 U.
S. 385 , 334 U. S.
401 -402 (1948); Missouri v. Holland, 252 U. S. 416 , 252 U. S. 434 (1920). But the concept expressed by the "ownership" doctrine is
not obsolete. Baldwin v. Montana Fish & Game Comm'n,
supra at 436 U. S. 392 (BURGER, C.J., concurring). T his Court long has recognized that
the ownership Page 441 U. S. 342 language of Geer and similar cases is simply a
shorthand way of describing a State's substantial interest in
preserving and regulating the exploitation of the fish and game and
other natural resources within its boundaries for the benefit of
its citizens. 436 U.S. at 436 U. S. 386 ; Douglas v. Seacoast Products, Inc., supra, at 431 U. S. 284 ; Toomer v. Witsell, supra, at 334 U. S.
402 .

															In recognition of this important state interest, the Court has
upheld a variety of regulations designed to conserve and maintain
the natural resources of a State. See, e.g., Baldwin v. Montana
Fish & Game Comm'n, supra; Huron Portland Cement Co. v.
Detroit, 362 U. S. 440 (1960); Lacoste v. Louisiana Dept. of Conservation, 263 U. S. 545 (1924); Patsone v. Pennsylvania, 232 U.
S. 138 (1914); Geer v. Connecticut, supra;
Manchester v. Massachusetts, 139 U. S. 240 (1891); McCready v. Virginia, 94 U. S.
391 (1877); Smith v.
Maryland , 18 How. 71 (1855). To be sure, a State's
power to preserve and regulate wildlife within its borders is not
absolute. [ Footnote 2/6 ] But 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 431 U. S.
283 -285; Kleppe v. New Mexico, 426 U.
S. 529 , 426 U. S. 546 (1976); Missouri v. Holland, supra at 252 U. S. 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 , 278 U. S. 13 (1928), the State's special interest in preserving its wildlife Page 441 U. S. 343 should prevail. And this is true no matter how "Balkanized" the
resulting pattern of commercial activity. [ Footnote 2/7 ]

															The Oklahoma law at issue in this case serves the special
interest of the State, as representative of its citizens, in
preserving and regulating exploitation of free-swimming minnows
found within its waters. "[T]he law serve[s] to protect against the
depletion of minnows in Oklahoma's natural streams through
commercial exportation." 572 P.2d
573 , 575 (Okla.Crim.App. 1977). Oklahoma's statutory scheme may
not be the most artfully designed to accomplish its purpose.
[ Footnote 2/8 ] Page 441 U. S. 344 But the range of regulations that a State may adopt under these
circumstances is extremely broad, particularly where, as here, the
burden on interstate commerce is, at most, minimal. See Douglas
v. Seacoast Products, Inc., 431 U.S. at 431 U. S. 288 (REHNQUIST, J., concurring in part and dissenting in part); Lacoste v. Louisiana Dept. of Conservation, supra at 263 U. S. 552 ; cf. Baldwin v. Montana Fish & Game Comm'n, 436 U.S. at 436 U. S. 391 ; Kleppe v. New Mexico, supra at 426 U. S.
545 .

															Contrary to the view of the Court, I do not think that
Oklahoma's regulation of the commercial exploitation of natural
minnows either discriminates against out-of-state enterprises in
favor of local businesses or that it burdens the interstate
commerce in minnows. At least, no such showing has been made on the
record before us. Cf. Florida Lime & Avocado Growers, Inc.
v. Paul, 373 U. S. 132 , 373 U. S. 154 (1963). This is not a case where a State's regulation permits
residents to export naturally seined minnows, but prohibits
nonresidents from so doing. No person is allowed to export natural
minnows for sale outside of Oklahoma; the statute is evenhanded in
its application. See Okla.Stat., Tit. 29, § 4-115(B)
(Supp. 1978). The State has not used its power to protect its own
citizens from outside competition. See Hunt v. Washington Apple
Advertising Comm'n, 432 U. S. 333 (1977); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525 (1949). Nor is this a Page 441 U. S. 345 case where a State requires a nonresident business, as a
condition to exporting minnows, to move a significant portion of
its operations to the State or to use certain state resources in
pursuit of its business for the benefit of the local economy. See Toomer v. Witsell, 334 U. S. 385 (1948); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928); Johnson v. Haydel, 278 U. S. 1 6 (1928); cf. Pike v. Bruce Church, Inc., 397 U.
S. 137 , 397 U. S. 145 (1970). And, notwithstanding the Court's protestations to the
contrary, Oklahoma has not blocked the flow of interstate commerce
in minnows at the State's borders. See ante at 441 U. S.
336 -337. Appellant, or anyone else, may freely export as
many minnows as he wishes, so long as the minnows so transported
are hatchery minnows, and not naturally seined minnows. On this
record, I simply fail to see how interstate commerce in minnows,
the commodity at issue here, is impeded in the least by Oklahoma's
regulatory scheme. [ Footnote
2/9 ]

															Oklahoma does regulate the manner in which both residents and
nonresidents procure minnows to be sold outside the State. But
there is no showing in this record that requiring appellant to
purchase his minnows from hatcheries instead of from persons
licensed to seine minnows from the State's waters in any way
increases appellant's costs of doing business. There also is
nothing in the record to indicate that naturally seined minnows are
any more desirable as items of commerce than hatchery minnows. So
far as the record before us indicates, hatchery minnows and
naturally seined minnows are fungible. Accordingly, any minimal
burden that may result from requiring appellant to purchase minnows
destined for sale out of state from hatcheries instead of from Page 441 U. S. 346 those licensed to seine minnows is, in my view, more than
outweighed by Oklahoma's substantial interest in conserving and
regulating exploitation of its natural minnow population. I
therefore would affirm the judgment of the Oklahoma Court of
Criminal Appeals.

															[ Footnote 2/1 ] See, e.g., TVA v. Hill, 437 U.
S. 153 (1978) (snail darters); Baldwin v. Montana
Fish & Game Comm'n, 436 U. S. 371 (1978) (elk); Douglas v. Seacoast Products, Inc., 431 U. S. 265 (1977) (menhaden); Kleppe v. New Mexico, 426 U.
S. 529 (1976) (wild horses and burros).

															[ Footnote 2/2 ]

															"The fact that internal commerce may be distinct from interstate
commerce destroys the whole theory upon which the argument of the
plaintiff in error proceeds. The power of the State to control the
killing of and ownership in game being admitted, the commerce in
game, which the state law permitted, was necessarily only internal
commerce, since the restriction that it should not become the
subject of external commerce went along with the grant and was a
part of it." Geer v. Connecticut, 161 U.S. at 161 U. S.
532 .

															[ Footnote 2/3 ]

															The Court in Geer assigned an alternative basis for its
decision. The Court held that a State, in the exercise of its
police power, could act to preserve for its people a valuable food
supply, even though interstate commerce was remotely and indirectly
affected.

															"Aside from the authority of the State, derived from the common
ownership of game and the trust for the benefit of its people which
the State exercises in relation thereto, there is another view of
the power of the State in regard to the property in game which is
equally conclusive. The right to preserve game flows from the
undoubted existence in the State of a police power to that end,
which may be none the less efficiently called into play, because,
by doing so, interstate commerce may be remotely and indirectly
affected. Kidd v. Pearson, 128 U. S. 1 ; Hall v. De Cuir, 95 U. S. 485 ; Sherlock v.
Allin, 93 U. S. 99 , 93 U. S.
103 ; Gibbons v. Ogden , 9 Wheat. 1.
Indeed, the source of the police power as to game birds (like those
covered by the statute here called into question) flows from the
duty of the State to preserve for its people a valuable food
supply." Id. at 161 U. S. 534 . See also New York ex rel. Silz v. Hesterberg, 211 U. S.
31 , 211 U. S. 41 -42
(1908); Pennsylvania v. West Virginia, 262 U.
S. 553 , 262 U. S. 601 (1923) (Holmes, J., dissenting).

															[ Footnote 2/4 ]

															Certain of the statements in the Court's opinion provide a basis
for some hope that these principles may yet survive the overruling
of Geer. See ante at 441 U. S. 337 :
"We consider the States' interests in conservation and protection
of wild animals as legitimate local purposes"; ante at 441 U. S. 338 :
"The overruling of Geer does not leave the States
powerless to protect and conserve wild animal life within their
borders."

															[ Footnote 2/5 ]

															The Geer Court itself did not use the term "ownership"
in any proprietary sense. See 161 U.S. at 161 U. S.
529 :

															"'We take it to be the correct doctrine in this country that the
ownership of wild animals, so far as they are capable of ownership,
is in the State, not as a proprietor, but in its sovereign capacity
as the representative and for the benefit of all its people in
common.'"

															[ Footnote 2/6 ] Geer recognized limits to the exercise of the State's
power to preserve wildlife within its boundaries. See id. at 161 U. S. 528 (this power, which the Colonies possessed, remains in the States
"at the present day, in so far as its exercise may be not
incompatible with, or restrained by, the rights conveyed to the
Federal government by the Constitution").

															[ Footnote 2/7 ]

															This view is fully consistent with the balancing approach to
Commerce Clause decisionmaking enunciated in Pike v. Bruce
Church, Inc., 397 U. S. 137 (1970), relied on so heavily by the Court. Ante at 441 U. S. 336 .
In Pike, the Court stated:

															"Where the statute regulates evenhandedly to effectuate a
legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the
putative local benefits. . . . If a legitimate local purpose is
found, then the question becomes one of degree. And the extent of
the burden that will be tolerated will, of course, depend on the
nature of the local interest involved, and on whether it could be
promoted as well with a lesser impact on interstate
activities."

															397 U.S. at 397 U. S.
142 .

															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 441 U. S.
344 -345. See also Hunt v. Washington Apple
Advertising Comm'n, 432 U. S. 333 , 432 U. S. 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 , 336 U. S. 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."

															[ Footnote 2/8 ]

															The Court seems to doubt the conservation purpose of the
Oklahoma law because the State places no limit on the number of
minnows a licensed dealer may take from state waters and imposes no
regulation governing the disposition of minnows within the State. Ante at 441 U. S.
337 -338, and n. 20. But the State could rationally have
concluded that it could adequately preserve its natural minnow
population without such additional measures. Tr. of Oral Arg. 18,
20, 21-23. Since, in my view, the prohibition on export of
naturally seined minnows imposes little, if any, burden on the
interstate commerce in minnows, the State has not violated the
Commerce Clause by choosing an export ban on natural minnows as the
means to effectuate its special interest in conserving wildlife
located within its territorial limits.

															[ Footnote 2/9 ]

															Thus, even putting aside the decision in Geer and the
principles for which it has come to be known and considering the
Oklahoma statute "according to the same general rule applied to
state regulations of other natural resources," ante at 441 U. S. 335 ,
the Court still has failed to explain how Oklahoma's laws burden or
discriminate against interstate commerce in minnows.

Summary:
The Supreme Court case of Hughes v. Oklahoma (1979) concerned an Oklahoma statute that prohibited the transportation or sale of natural minnows outside the state if they were sourced from within Oklahoma. The appellant, a Texas-licensed minnow dealer, was charged with violating this statute by transporting minnows from Oklahoma to Texas. The appellant argued that the Oklahoma statute was unconstitutional and violated the Commerce Clause, but was convicted and fined.

The Court overruled the previous case of Geer v. Connecticut (1896), which had upheld state control over wild animals and allowed for restrictions on their interstate commerce. Instead, the Court applied the same rules used for state regulations of other natural resources, assessing whether the Oklahoma statute regulated evenhandedly or discriminated against interstate commerce, and whether there were alternative means to achieve the local purpose without discriminating.

The Court found that the Oklahoma statute overtly discriminated against interstate commerce by forbidding the transportation of natural minnows out of the state for sale, and that less discriminatory alternatives were available to achieve the state's conservation goals. Therefore, the statute was ruled repugnant to the Commerce Clause.