An ongoing court battle over private land elk management in Montana reached a new milestone on July 22 when a judge issued a partial ruling dismissing two claims made by a large landowner group. Ferguson County District Court Judge Gregory Todd ruled that state wildlife managers were meeting their legal obligation to manage elk populations, and that private landowners do not have a fundamental right to kill elk that damage their property.
In issuing his ruling Todd sided with the Montana Fish and Wildlife Commission and Montana Fish, Wildlife and Parks, both defendants in a lawsuit that was filed by the United Property Owners of Montana in April 2022. Multiple hunting advocacy groups have sided with MFWP and the Commission as intervenors, including the Montana Wildlife Federation, the Montana Chapter of Backcountry Hunter and Anglers, the Skyline Sportsmen’s Association, and Public Land and Water Access Association.
UPOM claimed in its lawsuit that MFWP and the Commission have failed their obligation keep elk populations at manageable levels, which has led to intensive property damage, and it asked the court to order the state to remove approximately “50,000 excess elk” from the landscape. UPOM also claimed that the MFWP’s game damage hunts were infringing on their member’s constitutional rights.
The state agency’s Game Damage Program offers landowners wildlife deterrence support in the form of hazing, repellants, fencing, supplemental hunting permits, and game-damage hunts. In exchange, landowners must allow public hunting on their property during established hunting seasons. This was a major sticking point in UPOM’s lawsuit, as the group claimed that its members were being punished by having to allow public hunting access when the MFWP should be managing elk at sustainable populations regardless of public access.
Todd found this reasoning faulty. He said that because the game damage program is voluntary, the state government is not forcing landowners to provide public access.
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“The game damage statutory structure challenged by UPOM is not an unconstitutional taking because it does not prevent landowners from protecting their property,” Todd wrote.
The judge pointed to the other elk deterrence options available for Montana landowners, such as dogs, airplanes, drones, and other “non-lethal” tools that are otherwise banned under the state’s game harassment laws. Only when non-lethal options are “exhausted” can landowners legally use lethal force without a license and outside of hunting season, and Todd ruled that UPOM’s members have not met that standard yet.
Responding to UPOM’s claims that they should be able to take matters in their own hands and freely kill elk damaging their property, Todd ruled that the landowners were claiming a liberty they never possessed in the first place. He cited a case from 1940, State v. Rathbone, in which the court ultimately ruled that Montana landowners purchased land inhabited by wildlife at their own risk.
“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. “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 also ruled that MFWP and the Commission were upholding their legal obligations to maintain elk population objectives by administering annual hunting seasons with meticulous quotas and liberalizing antlerless harvest with the goal of reducing populations.
“But licenses alone cannot reduce populations,” Todd wrote. “Without harvest, the elk population is not reduced.”
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To this point, he added that the biggest roadblock to elk harvest in Montana today is a lack of public access in areas where elk populations are highest, which is to say, private land.. And he concluded that if landowners are unwilling to provide a solution by allowing more public hunting on their land, they are not eligible for relief from the courts.
“Because many hunters in Montana cannot get to land where elk live, elk numbers are difficult to reduce,” Todd writes. “UPOM members have a substantial number of elk on their property, and they have the right to exclude the public and MFWP 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.”
