Montana Judge: Handicapped hunters not harmed by crossbow restriction

A Laurel legislator and three co-plaintiffs won’t be using their crossbows during this archery season after a Missoula federal judge found their arguments unconvincing.

On Friday, the day before the archery season opened, Missoula federal district Judge Dana Christensen issued his order denying a request for an injunction and temporary restraining order on Montana Fish, Wildlife & Park’s rule prohibiting crossbows during this year’s archery season.

“The Court finds that issuing the injunction Plaintiffs request would result in several harms to Defendants and to the public interest beyond the take of a few game animals,” Christensen wrote.

Two weeks ago, Sen. Brad Molnar, R-Laurel, and three other men sued FWP, asking the federal court to suspend FWP’s rule prohibiting crossbows during archery season. Crossbows can already be used during the general rifle season, the elk shoulder seasons and for damage hunts.

But the four men claimed they were too physically impaired to use compound bows and should be allowed to use crossbows during archery season too. If not, they claimed their rights were being violated under the federal Americans with Disabilities Act.

Initially, FWP didn’t oppose the request for an injunction. Because the men had sued so close to the start of the season, there was not enough time to have the FWP commission consider the issue before the season ended in mid-October. So, FWP legal council Aimee Hawkaluk filed a response a week ago acknowledging an injunction was the only way the men could hunt this year.

That caused Christensen to vacate the case because the two parties appeared to be in agreement. But that still left the four men in a situation where they couldn’t hunt this year with crossbows. So they filed for an emergency hearing, which took four hours on Aug. 31. During the hearing, FWP attorneys clarified that they didn’t think the men could justify an injunction and denied that FWP had violated the Americans with Disabilities Act.

Christensen agreed in his 30-page ruling. Because the four men asked for an injunction, Christensen had to consider whether their claims passed a four-factor test.

They didn’t.

Injunctions are normally requested to stop an agency from implementing a new policy or action in order to keep things the way they are until more evidence is presented. But in this case, the four men were trying use an injunction to create a change, not maintain the status quo. The law says requests for such injunctions will only be granted if “extreme or very serious damage will result.” In this case, the men couldn’t prove much damage would result. 

Christensen said the Americans with Disabilities Act requires only “reasonable accommodation,” and FWP already provides permits for handicapped hunters to modify compound bows for their special needs.

In 2004, the U.S. Department of the Interior also looked at Montana’s archery season in light of the Americans with Disabilities Act and concluded that crossbows are restricted but not prohibited, and there was no evidence that such restrictions resulted in discrimination. Christensen said the Interior Department’s conclusion carried some weight.

“… the Court finds that the alteration to the status quo they request is more akin to ‘change the diameter of (a golf) hole from three to six inches’ – or, more analogously, permitting a golfer to use a club that performs the swinging action for him – than permitting a golfer to use a cart instead of walking between holes, and their requested accommodation thus likely ‘constitute(s) a fundamental alteration’ to the activity of hunting in Montana’s Archery Only Season,” Christensen wrote.

The men claimed they would suffer “irreparable injury” if they weren’t allowed to hunt with crossbows during the archery season. They testified that it would allow them to have a longer hunting season, better weather, an opportunity to hunt with companions and the game is more vulnerable and easier to hunt.

Christensen pointed out that the men had waited at least three years to do something – Molnar last bowhunted in 2018. Case law says a lack of urgency casts doubt on how much harm they would experience.

But most importantly, granting such an injunction would not only be undemocratic but it also set a bad precedent.

Christensen said that, as a judge, he is not as qualified to make such decisions as FWP and the FWP commission, especially after only the past two weeks. Also, an injunction would take the decision away from the commission and bypass all the public process and transparency that goes along with such decisions. Finally, if Christensen issued an injunction for four men, it’s likely that many more crossbow users would sue in order to get the same opportunity.

Finally, Christensen made it clear he wasn’t impressed with the men suing only two weeks before archery season.

“In balancing the equities, the Court may also consider the Plaintiff’s delay in pursuing this lawsuit, which ‘created the need for the emergency relief’ they seek,” Christensen wrote.

Christensen told FWP and the State of Montana to file their response to the plaintiffs’ ADA charges so a trial could be scheduled. Meanwhile, FWP has said men’s request will be taken up at the next FWP commissioners’ meeting at the end of October.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.