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Conservation groups, FWP disagree over defense against elk regulation lawsuit

Tom Kuglin Jun 19, 2022

In the weeks following the filing of a lawsuit seeking to have Montana’s elk hunting regulations overturned, both the state and conservation groups have sought to oppose the litigation while Democratic lawmakers have proposed an extraordinary level of public involvement should the state enter into a legal settlement.

In April, United Property Owners of Montana filed the lawsuit in Fergus County District Court against the Montana Fish and Wildlife Commission and the Montana Department of Fish, Wildlife & Parks. In recent weeks FWP has responded to the lawsuit, a coalition of hunting and access groups has sought to intervene in the case, and the state has filed a motion opposing the intervention. Democratic lawmakers have also asked the governor’s office to make a potential settlement public before finalization.

The lawsuit claims the state is in violation of a law requiring elk to be managed to predetermined population targets, called “objectives,” but that numbers currently exceed objective by 50,000 animals. FWP is required to adhere to the law regardless if area landowners allow public access for hunting, the lawsuit states. People are also reading…

The lawsuit requests the judge declare elk regulations void and require FWP and the commission, within 90 days, to develop a plan to “remove, harvest or eliminate thousands of elk” as expediently as practicable. The lawsuit specifically targets districts with special permits for hunting bull elk, alleging causation between the permits and over-objective hunting districts.

The lawsuit also asks the judge to find two state laws unconstitutional. The first law delegates wildlife policy power to the commission, with UPOM arguing that setting policy rests with the Legislature. The second law requires public access as a condition of allowing game damage hunting.

“FWP and the commission’s refusal to follow state law regarding population levels have squandered our prized natural resource, turning the regal elk into a common nuisance, like locusts or grasshoppers,” the lawsuit states.

Chuck Denowh with UPOM said in a previous interview landowners are seeing damage from high elk numbers and that the issue of elk over-abundance has snowballed for nearly two decades.

FWP filed a response in late May, essentially denying the claims made by UPOM, and stating that the state is legally required to implement regulations “with the objective” that elk populations remain at sustainable levels. Policies such as game damage, liberalized hunting and landowner permits have been implemented “with the objective the population remain at or below the sustainable level.” Download PDF FWP Response Motion to intervene

Earlier this month a coalition of hunting and access groups filed a motion to intervene in the case. Parties include Montana Wildlife Federation, Montana Backcountry Hunters and Anglers, Montana Bowhunters Association, Hellgate Hunters and Anglers, Helena Hunters and Anglers, Skyline Sportsmen’s Association and Public Land and Water Access Association.

The groups, which routinely engage in elk policy making, claim the motivation for the lawsuit is lucrative outfitting for bull elk.

“What plaintiff truly seeks is unilateral control and dominion over the elk which ‘trespass’ across their land,” the motion states. “Plaintiff uses this suit as a subterfuge to gain the ability to use, sell, transfer, and otherwise control licensing for the killing of trophy bull elk — the market cost of which is upwards of $10,000.” Download PDF Motion to intervene

The groups believe should the lawsuit be successful it would shift science-based wildlife management to politically-based management. The motion to intervene then goes on to claim the state will not adequately represent their interests in the case, expressing conflict with the current direction of FWP and the legislature.

The groups point to the political appointment of FWP’s director and the commission. They further note specific policy differences: FWP supported House Bill 505, which would have offered private landowners in much of the state a certain number of nonresident hunting licenses to distribute; expansion of so-called 454 agreements providing landowners special permits in exchange for limited public access. Finally, the motion cites two legal decisions: FWP conceded an injunction was appropriate when hunters sued in an effort to use crossbows during archery season; and FWP settled with UPOM over the state’s framework for a theoretical reintroduction of wild bison — the state put any potential transplant on hold for 10 years in the settlement.

“Although Defendants are being accused of here of unlawfully being too thoughtful of the public interest – an interest most-certainly represented by Intervenors - recent efforts by Defendants, both at the legislature and in the Commission indicate that Plaintiff and Defendant are not too far apart in current goals,” the motion states. Opposition on motion to intervene

This week, attorneys for FWP filed a brief opposing the groups’ motion to intervene, but suggested the groups instead be granted permission to file a friend of the court brief.

“While defendants Montana Department of Fish, Wildlife and Parks and the Montana Fish and Wildlife Commission, through their counsel, do not dispute (intervenors’) interest in this matter, intervention as a party is improper. Defendants intend to vigorously defend their lawful actions,” FWP writes.

FWP contends that the groups have not shown that the state will not adequately represent their interests. Specifically, the brief in opposition argues that a political appointment is not grounds for intervention and that past conflict is not indicative of future outcomes.

“Prior, unrelated litigation strategy is insufficient evidence to show inadequate representation here,” the brief states. Download PDF Opposition to motion to intervene

FWP also points out that UPOM opposed HB 505, saying the groups’ inclusion of it provides no support for their argument.

While it is true that UPOM opposed HB 505 during the 2021 legislative session, it did so because the bill would not have affected districts with special bull permits. The bill as written only applied to areas that could be hunted with a general license.

Granting intervenor status would add unnecessary complexity to the case, and FWP suggests the groups could weigh in with a friend of the court brief.

“In that way, the (intervenors) can focus their resources on expressing their concerns without involving themselves directly in the litigation,” the brief states.

The judge has not yet ruled on the motions. Letter from Democrats

Following a recent meeting of the Environmental Quality Council, a legislative interim committee with oversight of FWP, Democratic lawmakers sent a letter to Gov. Greg Gianforte requesting that any potential settlement be made public beforehand.

Democrats and several conservation groups have pointed to the settlement UPOM’s case over Montana’s bison plan, and questioned whether a similar settlement could occur in the elk lawsuit. They suggest that if the state were to enter into a settlement, the governor should publicize a draft settlement either through EQC or the Fish and Wildlife Commission “for review and public comment.”

“Given UPOM’s weak legal arguments and UPOM’s success in the buffalo case, there is good reason to believe that UPOM’s actual strategy is another favorable settlement,” the letter states. “Given the stakes of UPOM’s suit over elk management, and the great interest of the public and Montana hunters in these issues, it is essential that any settlement discussions in the litigation are transparent. Montana hunters and the general public must have an opportunity to review any settlement agreement before it is finalized.”

Such a step — bringing a draft legal settlement between the state and a private party to a public body for public comment — would be extraordinary and possibly without precedent. The Montana State News Bureau could find no evidence of a governor taking such a step previously. Download PDF Dem Letter

The governor’s office has not responded to the letter, according to Democratic legislative staff, nor did it respond to a request for comment for this story.

Rep. Tom France, D-Missoula, defended the concept, saying in an interview that the topic is of intense public interest and the governor would have the power to make a proposed settlement public.

“The letter makes a request, it doesn’t make a demand, we don’t have that kind of power, but it simply requests that if the decision is made to settle out of court, that the public and public land hunters have the chance to comment on it,” he said. “… The governor would certainly have the prerogative to do that.”

I hope and pray we can get our wildlife management situation back on track. We are headed down a very sad and dangerous path in my opinion.

Debunking the elk privatization myth

June 2, 2022 admin Blog , Elk

In a recent opinion piece, state legislators Tom France and Pat Flowers try to make the case that Governor Gianforte is planning to “privatize” Montana’s elk herds at the behest of greedy ranchers. In a bizarre twist of logic, the foundation of their thesis is the fact that those same ranchers are suing the Gianforte administration for improper elk management. Even if their narrative quickly unravels under scrutiny, it deserves a response.

France and Flowers know perfectly well that no governor can privatize elk. Commercial elk farms were banned in Montana with the passage of I-143 in 2000. Elk, like all wildlife, are a public resource managed by government trustees for the benefit of all. In Montana, no one can own elk—this is not in dispute.

The lawsuit brought against the state by United Property Owners of Montana (UPOM) is not an attempt to privatize elk, its objective is to address the significant damage some ranchers are suffering due to elk policies that have resulted in explosive, unsustainable population growth in a few areas.

It’s noteworthy that Flowers and France do not challenge the merits of this lawsuit or offer a counterargument. Instead they rely solely on demagoguery and apply false motives to their opponents to arrive at a conspiracy theory easily debunked. If they thought there was a good legal argument against the lawsuit, they would have said so.

Here are the facts. The Department of Fish, Wildlife, and Parks (FWP) has set a statewide elk population objective of 92,000 animals. As of 2021, we have an estimated 175,000 elk. These elk are not evenly distributed, with some hunting districts well below the objective level, and some districts with populations more than ten times the level recommended by FWP.

State law requires FWP to both set a population objective for elk in each hunting district, and to manage those elk so the population is at or near the objective level. When populations fall below objective, FWP is supposed to manage more conservatively to increase numbers. When populations are over objective, FWP is supposed to manage more liberally to bring numbers down to sustainable levels.

The problem the UPOM lawsuit addresses is that in some areas FWP has persisted in managing conservatively despite population levels far above where they are supposed to be. In these over-population areas, FWP has actually limited hunting by requiring a limited-draw permit. These limited-permit areas have become popular with hunters as sought-after trophy areas, but they come at great expense to the ranchers who provide habitat.

For instance, hunting district 417 near Lewistown has an elk population about ten times over objective—an estimated 4,300 elk. In this district FWP allocates only 225 either-sex elk rifle permits and 300 archery permits. With such limited hunting opportunity it’s no wonder the population has spiraled out of control.

Earlier this year FWP recommended liberalizing hunting in 417 and several other districts that are grossly over population objectives. But the Fish & Game Commission chose not to adopt this recommendation after intense lobbying from hunters.

This situation exposes a flaw in how we set wildlife policy in Montana. There is an imbalance between the people who are materially affected by wildlife management decisions—ranchers—because they are outnumbered by the beneficiaries—hunters.

Fortunately, our law is set up to protect the minority. Suing to fix mismanagement of elk is the extreme option—but it’s where we ended up after exhausting all other options. And this is the situation that results when politicians like Flowers and France are willing to lie to foster political division rather than work to bring people together to achieve balanced elk management.

Most of the bullet points make sense. A few are not good.

When I applied in the breaks a few years ago I thought it was weird that the unit was way over objective but extremely limited draw.

One thing in the article they say they want is for the legislature to set wildlife policy. We have that in this state. Nobody should want that.

Do any of you work off your home budget based on costs from 20 years ago? How about your business, do they budget off of 20 year old costs? We need to get current before anything else happens in my opinion.

The outfitters and big ranchers wield way to much power in MT.

What can an outfitter do on his own even if he or she gets lots of permits. Nothing is the answer

By my count, FWP or the state (ie...taxpayers) are going to be on hook for numbers 4, 5, 9, 10, 11, 12, 13 above.

By my count, res and non-res hunters maybe negatively impacted by numbers 1, 2, 3, 6, 7, 8, 13, 14, 18 above.

If crop damage or over-objective is indeed such a critical issue for some ranchers and farmers that necessitates legal action, my questions to these landowners is how many outside hunters do you let onto your property to control the elk numbers? If none or little...it's not a good look for the LO's and raises credibility questions about their concern for the over-objective and crop damage issue. Of course it's their right to control their property as they see fit. However if they are indeed trying to "profit from a crisis" at the expense of taxpayers and hunters, it hurts their cause.

On the flip side, if elk numbers were below objective in the areas of concern, would these same LO's be complaining or filing a lawsuit to shutdown or reduce elk hunting to bring the herd number back up?

As someone mentioned above, it may be a good start for the FWP to re-evaluate and update the over-objective criteria and then see where things fall.