FWP: Wolf hunting regulations adopted in August were not subject to public participation laws

The department is being sued by two wildlife conservation groups who say their right to public participation was denied

By: - February 10, 2022 4:54 pm

A Yellowstone wolf (Courtesy NPS/Jacob W. Frank)

Rules and regulations about what tools can be used for hunting wolves at night on private property are dictated by statute and therefore not subject to public participation laws, Montana Fish Wildlife and Parks said in court on Thursday.

The FWP appeared before Lewis and Clark County District Judge Michael McMahon to argue against allegations brought by two wildlife conservation groups that the Department did not follow the required administrative procedure laws when regulating how wolves can be hunted at night.

“I will concede … that maybe we should have communicated better. But that’s a different question as to whether the regulations were not lawfully adopted,” said FWP lawyer Zach Zipfel.

In December, Wolves of the Rockies and Trap Free Montana Public Lands filed a¬†lawsuit against Montana Fish, Wildlife and Parks, and the Montana Fish and Wildlife Commission alleging the Commission inappropriately adopted regulations in August that allowed for the use of artificial light and thermal imaging technology by denying them their right to public comment and notice. The groups are also challenging FWP’s removal of a prohibition on the aerial hunting of wolves for the same reasons.

On Thursday, McMahon heard from the two groups regarding their request for a preliminary injunction on the hunting regulations while the legal challenge unfolds. On Feb. 2 McMahon denied a request by the plaintiffs for a temporary restraining order on the same hunting regulations.

At the center of the lawsuit is Senate Bill 314, sponsored by Sen. Bob Brown, R-Thompson Falls. The recently passed law allows the Fish and Wildlife Commission to adopt regulations allowing the hunting of wolves “on private lands outside of daylight hours with the use of artificial light or night vision scopes.” The bill also directed Montana Fish Wildlife and Parks and the Commission to reduce Montana’s wolf population to “sustainable” levels.

The Department argued that because wolves are classified as a “species in need of management,” they are not subject to the same statutes that regulate the hunting of furbearers and game animals. Aimee Hawkaluk, who worked at FWP for nearly 10 years before leaving the Department two weeks ago, testified about the confusion of regulating wolf hunting.

“The wolf regulations were an especially confusing set of regulations for staff because wolves are classified as a species in need of management … And so many of the laws that apply to other sets of hunting regulations quite simply don’t apply to wolves,” she said.

One example she gave was aerial hunting, which she said in statute is prohibited to other types of huntable animals, but not wolves. And FWP said if Montana statute does not prohibit aerial wolf hunting, then it was not out of bounds when removing the prohibition without public notice.

“The regulation changes of which plaintiffs complain were dictated by statute and were not subject to discretion,” the Department wrote in its Wednesday filing. “Therefore, public comment was not necessary.”

In its filing, FWP made a similar argument as to why the adoption of thermal imaging when hunting wolves did not violate any public administrative procedure laws.

Montana Code Annotated prohibits the use of thermal imaging when hunting a game animal, the Department said, but since wolves are not classified as game animals, the prohibition does not apply to them.

“If the prohibition does not apply to wolves, then public comment was not necessary to add the use of thermal or infrared imaging for wolf hunting,” the Department wrote in its filing.

And the Department argued the plaintiffs’ interpretation of the law regarding the use of artificial light “undermines the Legislature’s” express intent” and “poses a threat to public safety.”

“If artificial light is not included in the authorization of night hunting, then Plaintiffs’ reading presents a scenario in which the Commission could authorize night hunting without the use of artificial light. Doing so would lead to a lower likelihood of hunter success, which runs contrary to the Legislature’s express intent to ‘reduce the wolf population in this state to a sustainable level’ by providing ‘the most liberal harvest regulations applied in regions with the greatest number of wolves,'” the lawsuit read.

In court on Thursday, Robert Farris-Olsen, who is representing the plaintiffs, said FWP has no statutory authority to change wolf hunting regulations; instead, he said that power belongs to the Fish and Wildlife Commission. Pointing to Montana Statute, Farris-Olsen said in court on Thursday, “the Commission shall establish the hunting, fishing, trapping rules of the department.”

He continued, “So the Commission acts on behalf of the Department. The Department doesn’t get to just simply change regulations or adopt some implied interpretation of those regulations simply because it wants to. It needs to follow the process, and that process wasn’t followed here.”

In arguing for a preliminary injunction, the plaintiffs said they would suffer irreparable harm if more wolves were harvested while the legislation plays out.

“‘It’s devastating to us, to me, personally, to people in my organization,” said Marc Cooke, president of Wolves of the Rockies, about the challenged regulations. “And it’s interesting because I get phone calls from people frequently, and they’ll discuss what’s going on, and they will break down and start crying on the phone. And you just can’t tell them, ‘It’s gonna get better.'”

FWP pushed back in its filing and pointed out that harvest levels are projected to be lower than last year and that only 13 of the wolves harvested have been harvested at night.

Wolves were a focal point for Republican lawmakers during the 67th legislative session as they passed laws making it easier to kill them and directing FWP to reduce the wolf population. As a result of the new laws in Montana and other states, the U.S. Fish and Wildlife Service began a review of gray wolves in September to determine whether federal protections needed to be restored to states like Montana and Idaho.

While Montana’s wolf harvest may not surpass last year, the killing of more than 20 Yellowstone wolves has sparked public outrage. The Yellowstone park superintendent asked Gov. Greg Gianforte in September to halt the trapping and hunting of wolves near the park, but the Republican governor said once a wolf leaves the park, it is subject to Montana’s hunting laws.

In the midst of all the controversy, wildlife conservation advocates were handed a victory on Thursday when a judge ruled to restore federal protections of gray wolves in 44 of the lower 48 states. However, the ruling does not apply to wolves in Idaho, Montanan, Wyoming and New Mexico as they were delisted by congress. And wolves in the four states will remain under state jurisdiction.

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Keith Schubert
Keith Schubert

Keith Schubert was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. Keith is no longer a reporter with the Daily Montanan.