Judge rules in favor of FWP in Montana elk regulations lawsuit

A state district court judge on Monday sided with Montana Fish, Wildlife & Parks and a coalition of hunting groups in key aspects of a lawsuit where property owners had sought to compel the state to aggressively reduce elk populations.

In a trio of rulings, Judge Gregory Todd found that the arguments made by the state and hunting groups that joined the lawsuit were more compelling than those brought by the plaintiff, United Property Owners of Montana. UPOM, a membership-based nonprofit that exists to promote its members’ business interests, has argued high elk populations create undue hardship for landowners.

The orders have narrowed the scope of the lawsuit UPOM filed in 2022 to compel the state to “remove, harvest, or eliminate thousands of elk” to bring population counts into alignment with established targets.

Todd wrote in one ruling that UPOM failed to demonstrate that FWP has run afoul of a 21-year-old law that directs the state to manage elk “at or below” the sustainable populations established in the state’s elk plan. He wrote that the “biggest impediment to harvest is a lack of public access to the elk” and faulted the property owners group for not participating in existing state programs and harvest opportunities, including public hunting, to reduce the number of animals on their properties.

UPOM Policy Director Chuck Denowh said in a text message that aspects of the case regarding the state’s elk management efforts remain to be resolved in a future trial.

“With elk populations at crisis levels in some areas of the state, it’s obvious that they’re not doing the job the law requires them to do,” Denowh wrote. “Montana farmers and ranchers are suffering as a result with heavy losses in feed, forage and fences.”

Todd also sided with the state regarding the constitutionality of its game damage program, which permits a landowner who allows public hunting to request targeted elk harvest to curb forage loss and other forms of elk-related property damage. UPOM had raised a government “takings” claim for that issue, arguing that the statutes that established the program “require a property owner to choose between surrendering his fundamental right to exclude the public from private property and his constitutional right to protect his property from game damage.”

That argument didn’t resonate with Todd, who wrote that nothing has been taken from UPOM’s members because they “never owned a property right that allowed them an absolute freedom to kill.”

Another claim made in the case concerned whether the Montana Fish and Wildlife Commission, which consists of seven Governor-appointed members, has the authority to set hunting regulations. UPOM argued that such authority properly belongs with the Legislature. The court decided that claim in the state’s favor last year.

In an emailed statement, FWP spokesperson Greg Lemon said the agency will continue to focus on elk management as guided by the state’s new elk management plan, which was updated in 2023.

“We applaud the Court’s ruling that confirmed FWP and the Commission complied with the law,” Lemon wrote, adding that the agency is “committed to working with landowners to address game damage concerns where they occur, as we have for decades.”

In an emailed statement, Montana Wildlife Federation Board Chair Chris Servheen described Todd’s ruling as a “historic, precedent-setting victory for science and fairness in game management.”

“We are proud to have successfully strengthened the Public Trust Doctrine and the North American Model within Montana law,” Servheen said. “We will continue to work with these intervening organizations, the State of Montana, and many more to further strengthen these sound principles.”

The Montana Wildlife Federation is one of seven wildlife-, hunting- and access-oriented groups that intervened in the lawsuit to support FWP’s position.

A bench trial to resolve the remaining issues has been scheduled at the Fergus County Courthouse in Lewistown for Oct. 21.