An on-going court battle has finally been settled after a Montana judge ruled against a group of landowners seeking the removal of what they referred to as ‘excess elk’ on their land. Looking to skip the process of securing tags and allowing public hunters to chase those elk, the United Property Owners of Montana filed suit in April 2022 claiming that both the Montana Fish and Wildlife Commission and Montana Fish, Wildlife and Parks had failed to properly manage the state’s elk population.
According to the suit, the plaintiffs believed that both agencies ought to be responsible for removing upwards of 50,000 elk from the landscape due to extensive property damage. And while the MFWP does offer a number of programs intended to help landowners with wildlife deterrence in the form of hazing, repellants, fencing, supplemental hunting permits, and game-damage hunts, the landowners didn’t seem to like that it came with a catch.
That catch being that any landowners enrolled with the program would be forced to allow public hunting on their properties during established hunting seasons. The catch, they claimed, was a direct infringement on their member’s constitutional rights.
In a nutshell, the landowners figured that MFWP ought to manage the elk, whether the hunters had access to their property or not – something that Fergus County District Court Judge Gregory Todd disagreed with. Given that the state’s Game Damage program is voluntary, he stated that no landowners are forced to provide access, only those wishing to participate.
“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.
Citing 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, the judge ruled that the landowners were claiming a liberty they were never awarded in the first place.
“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.”
The ruling also noted that both MFWP and the Commission were holding up their end of the bargain when it came to elk management. By instituting annual hunting seasons along with quotas with the goal of reducing overall populations, he could see no error in their ways.
“But licenses alone cannot reduce populations,” Todd wrote. “Without harvest, the elk population is not reduced.”
He later added that perhaps it was not an elk problem that was plaguing the landowners, but rather an issue of access. The fact is, high concentrations of elk are currently congregated on private properties much like these and without access to public hunters, managing their populations on a state level becomes a real challenge.
“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.”
