Court denies large landowners’ claims against FWP elk management

Laura Lundquist

A Montana court has reaffirmed that landowners can’t automatically kill wildlife just because their property is damaged. Animals are a fact of Montana life, and nonlethal measures should be used first.

Fergus County District Judge Gregory Todd this week issued partial rulings in favor of Montana Fish, Wildlife & Parks and hunters’ groups, saying rich landowners - members of the United Property Owners of Montana - don’t have the right to kill wildlife on their property before first trying to remove animals using either nonlethal techniques or by allowing limited public access during damage hunts.

Todd ruled in support of FWP on two counts: one where UPOM claimed the department and commission didn’t properly maintain elk population objectives and another where UPOM claimed that its members’ constitutional rights were violated when they weren’t allowed to take matters into their own hands.

He also upheld Fergus County Judge Heather Perry’s ruling that a trial hearing was necessary. So other counts are still to be decided.

“Because UPOM’s members never owned a property right that allowed them an absolute freedom to kill, nothing has been taken from them by the statutes and regulations at issue,” Todd wrote in one of his rulings.

In May 2022, the United Property Owners of Montana filed a legal complaint in Fergus County court, claiming FWP and the FWP commission had broken laws related to game-damage hunts and how they were carried out on private property. UPOM attorney John “Jack” Connors wrote in the complaint that FWP has failed to keep elk populations under control and that the FWP commission made an unlawful decision in February when it voted to maintain a limit on the number of hunting permits in nine eastern Montana hunting districts.

But this week, the judge found no evidence to support two of UPOM’s claims.

In his ruling, Todd accused the UPOM attorney of cherry-picking certain portions of FWP’s deposition without considering the rest. FWP employee Quentin Kujala had testified that habitat-carrying capacity had to be balanced with landowner tolerance when setting objectives and that the commission depends on the department’s expertise to set objectives. Kujala also said that game damage hunts could reduce the population somewhat, but they’re primarily intended to reduce damage by driving the deer or elk off the property.

Todd agreed with FWP that the law - while saying FWP should maintain sustainable elk numbers - doesn’t require action be taken to reduce the populations to below objectives. He also found that FWP has attempted to maintain the populations using four different tools: liberalized harvests, game damage hunts, landowner permits, or animal relocation. So FWP is following the law to the extent it can without support from landowners.

“Without harvest, the elk population is not reduced. The biggest impediment to harvest is lack of public access to the elk. Because many hunters in Montana cannot get to land where elk live, elk numbers are difficult to reduce. UPOM members have a substantial number of elk on their property, and they have the right to exclude the public and FWP cannot force public access on them. But by failing to utilize existing programs and harvest opportunities and failing to allow public hunting, UPOM has not prevailed on Count I,” Todd wrote.

Similarly, Todd found no support for UPOM’s constitutional argument that landowners should be allowed to kill wildlife to “defend their property.” He pointed out that nothing kept them from using nonlethal means such as fencing or hazing to prevent game damage.

UPOM also claimed that being required to allow public hunters on their property for a game damage hunt amounted to a “taking.” But Todd pointed out that, by definition, a taking would either have to deny the landowner the economic use of his land or be a permanent invasion of property. Game damage hunts don’t fall under either definition.

The debate included an important Montana wildlife case, State v. Rathbone, where Rathbone had argued in 1940 that he had the constitutional right to kill animals in defense of his property. But the courts decided that was true only if killing was reasonably necessary and all other options were exhausted. Again, UPOM members hadn’t bothered to use other options, so their rights weren’t violated, Todd said.

“The Rathbone case recognized that the State’s regulation of wildlife, and the related limitation on the ‘right to kill,’ is reaffirmed by Montana’s longstanding tradition that landowners buy wildlife-inhabited land at their own risk,” Todd wrote.

A third party can intervene in a lawsuit if they may be affected by the outcome of the case without their interests being adequately represented. That is a possibility for Montana’s hunters, who have lost some faith that FWP’s leadership would defend resident sportsmen. So in June 2022, seven sportsmen’s groups filed as intervenors on behalf of FWP, calling the lawsuit “an attack on wildlife management and Montana’s egalitarian hunting traditions.”

The intervenors include the Montana Wildlife Federation, Montana Backcountry Hunters and Anglers, Montana Bowhunters Association, Missoula-based Hellgate Hunters and Anglers, Helena Hunters and Anglers, Skyline Sportsmen’s Association and the Public Land and Water Access Association.

The groups argued that UPOM complained about elk numbers but did little to help reduce them. Todd agreed.

“The Intervenors argue … that UPOM comes to this Court ‘with unclean hands - harboring elk to boost their private property values, while also complaining that they have no options available to abate the problem.’ This Court agrees with Intervenors that while the State cannot force landowners to endure public access on private land, it is also true that UPOM cannot claim that public involvement in game management deprives it of a vested property right,” Todd wrote.

UPOM was formed in 2007, when some large landowners in eastern Montana objected to FWP limiting the number of hunting permits in the Missouri Breaks region. The landowners sell elk hunts, so UPOM has repeatedly challenged hunting regulations that limit the number of elk licenses.

They’ve lobbied the FWP commission, backed bills in the 2021 Legislature and then lobbied former FWP director Hank Worsech. In the 2021 Legislature, UPOM director and lobbyist Chuck Denowh backed House Bill 417, which would have allowed unlimited elk permits in the same dozen or so eastern Montana districts where elk are over population objectives.

The intervening hunters’ groups said UPOM’s lawsuit would have forced FWP to reduce elk numbers in the state by killing upwards of 50,000 animals and it would have given politicians and private landowners management authority over public wildlife management instead of keeping wildlife as a public trust.