Ag producers, tribes, local sportsmen oppose Constitutional amendment
Laura Lundquist
(Missoula Current) A bill that would add more emphasis in the Montana Constitution to the ability to hunt, fish and trap brought out some surprising testimony, including opposition from the Montana Stockgrowers Association and support from a California website creator.
On Tuesday morning, the House Judiciary committee spent two and a half hours listening to testimony and questions regarding House Bill 372, which seeks to enshrine the right to hunt, fish and trap in the Montana Constitution. The bill was introduced at the end of January but sat inactive for a month and a half.
In 2004, Montana voters passed a legislative referendum that added a clause to the Constitution saying “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.”
HB 372’s sponsor, Rep. Paul Fielder, R-Thompson Falls, said having opportunity is not good enough, so he wants it changed to a right to “hunt, fish, trap, and harvest wild fish and wildlife, including the right to use current means and methods.” In addition, he added language saying the state “shall give preference to hunting, fishing, and trapping by citizens as the primary but not exclusive means of the state's management of wild fish and wildlife populations.”
“We want to protect what we’ve got now so that can’t be taken away from us. So we don’t get our abilities to hunt, fish and trap nickeled and dimed away by ‘you can’t do this’ or ‘you can’t do that,’ Fielder said.
While the language includes three activities - hunt, fish and trap - the makeup of the proponents and the testimony on both sides made it clear the main reason for the bill came from trappers fearful of challenges to trapping in Montana and other states. The majority of the 20 proponents were trappers, but it also included representatives of Montana Outfitters and Guides, the Rocky Mountain Elk Foundation and Backcountry Hunters and Anglers.
Chris Morgan of the Montana Trappers Association said the bill was about more than trapping but “that’s the big focus.” Trapper Keith Kubista of Ravalli County-based Montana Sportsmen for Fish and Wildlife said too many states have lost the privilege of trapping so the bill was necessary to fortify protections “against the cancel culture’s attempts to inflict their nontraditional values on our Montana way of life.”
Kris Killorn said his organization, Outdoor Heritage Coalition, was formed in 2016 response to Ballot Initiative I-177, which would have prohibited the use of traps and snares on state land. He said the opposition to I-177 had to raise $540,000 to “inform the voters.” Fielder, along with Kubista, trapper Toby Walrath, attorney Jim Brown and Jay Bodner of the Montana Stockgrowers Association wrote the official opposition statements to I-177.
“OHC has the backing to carry this to the voters and to help educate the voters,” Killorn said.
According to Ballotpedia, the opposition to I-177 raised $329,000, thanks to donations of almost $300,000 from the Montana Trappers Association, in addition to $50,000 from the Rocky Mountain Elk Foundation and $10,000 each from Greg Gianforte and the Ohio State Trappers Association. Backers of I-177 raised $154,500 with the five largest donors being Montana citizens. The initiative failed with 37% of the vote.
Charlie Whitwam, California creator of the sportsmen’s political advocacy website “Howl for Wildlife,” appeared online to defend his organization. He said claims that his website allows out-of-state sportsmen to manipulate state legislators were “nothing more than an attempt to suppress the voice of sportsmen.” He pointed out that the sale of nonresident tags brings a lot of money into the state so nonresidents should be allowed to comment.
Whitwam launched the Howl For Wildlife website a year ago “as a multi-pronged advocacy platform to fight anti-hunting legislation,” according to a Free Range American article. The site publicizes “anti-sportsmen” bills in every state legislature and can blast emails on each bill to all relevant state officials. Every click a participant makes can result in dozens of email actions, and the organization allows participants to earn points toward rewards for every email sent.
Adding to the nonresident influence, National Rifle Association spokesman Brian Gosch offered to work with Fielder on using stronger language created by the NRA. Gosch said 23 states have Constitutional provisions to protect sportsmen. However, the NRA website already lists Montana as one of those states.
The Constitutional protection already afforded hunters and anglers was just one of the arguments used by the 22 opponents of HB 372, which included not only wildlife advocates but also Montana sportsmen’s groups and tribes. By the end of the testimony, it appeared that Montana might not fit the mold of other states.
Representatives from the Montana Wildlife Federation, the Montana Sportsmen’s Alliance, Helena Hunters and Anglers, and Montana Trout Unlimited opposed the bill, saying it won’t stop ballot initiatives. They said the vague language of the bill would lead to more conflict and litigation and that putting wildlife management directives in the Constitution was over-reach. Plus hunter education teaches people that hunting is a privilege, not a right.
“My privileges are adequately protected. This bill is about adding trapping,” said Bozeman hunter Jim Bell. “I’m somewhat offended that includes fishermen, hunters and ethical sportsmen along with trappers. There’s nothing ethical or sportsmanlike about trapping.”
Then representatives of Montana’s powerful agricultural industry raised concerns that the bill could affect water rights and corner crossings.
Stockgrowers spokeswoman Raylee Honeycutt said the bill acknowledges private property rights but a right to hunt could strengthen claims that sportsmen should be allowed to cross corners of private land to reach landlocked public land.
Both the Montana Stockgrowers Association and the Association of Gallatin Agricultural Irrigators worried that the bill could open the door to anglers using their right to fish to demand that agricultural producers give up more water for instream flows during dry periods.
Fielder said he’d made allowances in the bill for protecting private property rights, but water law differs greatly from real property law.
“We do have case law, we do have precedence where the right to fish equates to minimum instream flow. If this amendment were to pass, then what we end up with is two conflicting Constitutional provisions. Article 9, Section 3 protects existing water rights. How would those rights be balanced?” said Gallatin Agricultural Irrigators spokeswoman Christa Lee Evans.
During questioning, a few Republican committee members probed Honeycutt as to why the Stockmen opposed the bill after they helped oppose I-177. They wanted to know how many Association members agreed with the opposition. Honeycutt said the bill just raised too many concerns.
Finally, tribal representatives spoke up, saying the bill potentially clashed with treaty rights and tribal compacts in Indian Country. Montana’s tribes oversee a lot of land where they allow non-tribal members to recreate and they have rights on lands and waters outside their reservations.
American Civil Liberties Union spokesman Keegan Madrone said that, at the very least, the bill would need an amendment to address tribal concerns.
“The amendment as written is either completely ignorant or is willfully malicious to this history, to this law, and to the realities in this state and respect to the fellow sovereigns of this land,” Madrone said. “It is a reckless shoehorned insertion of rights into a settled ecosystem of law set by the U.S. Supreme Court, existing law and policy, and most crucially, the inherent sovereignty of tribes.”
Fielder appeared flustered by all the opposition. He said he was disappointed that only Republicans had signed on as cosponsors for the bill.
“I’ve worked against animal rights bills since 2000. I’ve studied other states. I’ve made it basically a science to myself,” Fielder said. “This should not be a partisan bill. But it is.”
The committee took no action on the bill.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.