Private property group alleges FWP fails to manage elk; sportspeople seek to intervene

FWP denies allegations, argue plaintiff must exhaust administrative remedies

By: - June 10, 2022 10:17 am

Photo of an elk (Photo courtesy of Pixabay | Public domain).

A lawsuit alleging Fish, Wildlife and Parks is failing to manage elk seeks “a radical departure” from the law and from an earlier court decision about the status of wildlife in Montana, according to a group of organizations wanting to intervene in the case.

“More than 80 years ago, the Montana Supreme Court held that wildlife in Montana is a public resource, ownership over which has no legal relationship to the ownership of the land,” argue the group of sportspeople in a court brief dated June 1.

The parties seeking to intervene in the lawsuit note they represent more than 10,000 Montana citizens including members of the Montana Wildlife Federation and Montana Backcountry Hunters and Anglers.

In April, the United Property Owners of Montana filed the original lawsuit. In that complaint, the property owners allege FWP and the Fish and Wildlife Commission aren’t meeting their legal obligation to manage elk populations, and landowners have been damaged as a result.

Alleging a “crisis” of elk management with 50,000 excess animals based on FWP’s own maximum, the property owners ask the court to compel FWP to devise an emergency plan to reduce the number of elk as soon as practicable. The plaintiff, a nonprofit private property rights group, also asks the court to review the 2022-23 elk hunting regulations and process, arguing they are arbitrary and capricious.

“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,” UPOM said in its complaint.

In a response filed in Fergus County District Court, FWP denies that it hasn’t been responsive to landowner concerns. The defendants generally deny the allegations by property owners and also argue the plaintiff failed to exhaust administrative remedies.

The lawsuit and ensuing request for intervention are part of an ongoing debate about how elk are managed in Montana — and for whom. The proposed intervenors argue an interpretation of Montanans’ protected opportunity to harvest wild game is at issue, which can be traced directly to the Montana Constitution, Article IX, Section 7.

United Property Owners of Montana

In its complaint, the property owners argue FWP and the commission are failing to meet their statutory requirement to “manage elk populations to sustainable levels and to prevent overpopulation.” UPOM also alleges FWP won’t respond to legitimate concerns from landowners if those landowners are “unwilling to abdicate their private property rights” and allow public hunting.

“And when defendants say, ‘public hunting,’ they require landowners to throw their property wide open to strangers, including dangerous and reckless hunters or people with a reputation for damaging private property,” the complaint said.

As the elk population has grown, the property owners argue FWP’s “misconduct has resulted in a crisis of management.” And the problem has been compounded by drought and the threat of wildfire and grasshoppers, which destroy forage needed by livestock and wildlife, the court documents said.

“The difference between wildfire, drought, and grasshoppers, and elk, is that defendants are statutorily required to manage elk populations while the sources of reduced forage are largely acts of God,” the property owners said in its complaint. “Defendants continued and compounding failures have caused an economic crisis for landowners.”

The defendants have no legal justification for failing to manage elk, the property owners said, but “entrenched employees of FWP and rogue commissioners have been allowed to override the intent of the Legislature.”

The property owners also said the Montana Constitutions places private property rights above the right to hunt elk, “especially on private property.”

Fish, Wildlife and Parks

In a response, FWP and the commission note they have a responsibility to implement programs and actions “with the objective” that elk numbers remain at or below the sustainable population. The defendants also argue they have done so with programs such as liberalized hunting, “game damage hunts,” and landowner permits.

“FWP is statutorily prohibited from providing game damage assistance if the landowner does not allow or significantly limits public hunting,” FWP said, although it pointed to an exception for situations where hunting would be inappropriate.

FWP denies many allegations or argues responses are not necessary in some cases. In particular, FWP denies that it hasn’t taken actions to reduce elk populations in the Breaks and that it’s creating financial problems for the plaintiffs.

“Defendants also deny any allegations that they caused an economic crisis for landowners,” FWP said. 

Proposed Intervenors

The proposed intervenors said they aim to ensure all Montanans have access to public land and public wildlife, and they have a history of engaging in the public process of elk management.

“Yet this lawsuit seeks to strip that right from them by asking a court render Montana’s elk management system unconstitutional,” the groups said.

Intervenors also include the Montana Bowhunters Association; Hellgate Hunters and Anglers; Helena Hunters and Anglers; Skyline Sportsmen’s Association; and Public Land and Water Access Association.

The unusual nature of the case also means the court should permit the groups to intervene, they argued; given the stakes, they said it would be unjust to exclude them.

The groups point to the state’s Constitution as argument they should be involved: “‘The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.’”

In their brief, the proposed intervenors allege the plaintiffs want total control over elk that “trespass” over their land, and they’re using the lawsuit as a “subterfuge” to gain control over valuable bull trophy licenses. But the groups argue wild game have long belonged to the state.

“Intervenors also have a legally protected right in the state’s management of elk,” the groups said. “Montanans’ wildlife, including elk, are part of the public trust, and the state has an obligation to manage them for the benefit of the public.”

UPOM is represented by Jack Connors and Jacqueline Papez of Doney Crowley in Helena.  Agency legal counsel Zachary Zipfel, Kathleen Jensen and Kevin Rechkoff represent FWP.

Intervenors are represented by David K.W. Wilson and Robert Farris-Olsen of Morrison, Sherwood, Wilson and Deola, in Helena, and Graham Coppes of Ferguson Law Office in Missoula. 

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. In Montana since 1998, she loves hiking in Glacier National Park, wandering the grounds of the Archie Bray and sitting on her front porch with friends. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. She worked there from 2006 to 2020. As a Missoulian reporter, she was named a co-fellow by the Education Writers Association to report on a series about economic mobility; grantee of the Society of Environmental Journalists for a project on conservation from the U.S. to Africa; and Kiplinger Fellow in Digital Media and Public Affairs Journalism. She previously worked at the Great Falls Tribune and Missoula Independent, and she earned her master’s in journalism from the University of Montana. She lives in Missoula with her husband, Brock, who is also her favorite chef, and her pup, Henry, who is her favorite adventure companion. She believes she deserves to wear the T-shirt with this saying: “World’s most mediocre runner.”