FWP Wins Final Claim In Elk Management Lawsuit

A state district court judge has issued a final order in a dispute over Montana Fish, Wildlife and Parks’ approach to elk management.

Tenth Judicial District Court Judge Gregory Todd ruled Friday that FWP and the Fish and Wildlife Commission have considered the concerns of private landowners and managed for a sustainable elk population.

The order dispenses with the last remaining claim United Property Owners of Montana raised in a lawsuit it filed against the state in 2022. UPOM, a membership-based nonprofit that exists to promote its members’ business interests, argued that the state has violated a 2003 law directing FWP to manage elk “at or below” the sustainable populations established in the state’s elk management plan.

Among other changes, UPOM asked the state to “remove, harvest or eliminate thousands of elk” and design and implement an emergency plan to reduce the “illegal overpopulation of elk as soon as practicable” to alleviate financial hits its membership had suffered as a result of elk numbers that exceeded population targets by as much as 914%. A coalition of hunting and public access groups troubled by that request and suspicious of UPOM’s motives successfully petitioned the court to intervene in the lawsuit.

A trio of rulings issued in July narrowed the scope of the pending trial, and in an order issued last month, Todd found that UPOM had not sufficiently demonstrated the damages its members have suffered. He chastised the group for failing to provide “a single record of damage by elk to a UPOM member property,” excepting Mark Robbins, who had been asked to illuminate the damages and frustrations experienced by the UPOM membership.

Rob Farris-Olsen, an attorney representing a coalition of hunting and access-oriented groups in the lawsuit, said UPOM’s refusal to “disclose some names and actual injuries” played a significant role in the lawsuit’s outcome.

UPOM will appeal the lawsuit to the Montana Supreme Court, according to Charles Denowh, the group’s policy director. UPOM’s appeal will likely incorporate some of the research it has conducted with its membership regarding the elk-related damages they’ve suffered, he said.

Denowh added that UPOM’s membership includes approximately 250 landowners who collectively own about 5 million acres of land in Montana. Most members are concentrated in the central and eastern parts of the state where limited-entry hunting districts have contributed to particularly large elk populations, he said.

Denowh said he found it “disappointing” that the judge engaged little with the “argument we made about the plain language of the law.”

When Henry “Hank” Worsech took the helm of FWP, Gov. Greg Gianforte tasked him with finding a new approach to balancing landowner concerns with hunter opportunity. In the aftermath of Worsech’s attempt to shake up the status quo, the department has been thrust into a lawsuit while hunters organize themselves in anticipation of the 2023 legislative session.

In an emailed statement, FWP Director Dustin Temple said he is pleased that the court has affirmed the state’s right and responsibility to manage wildlife “for the enjoyment of everyone in Montana.”

“This lawsuit challenged the ability of FWP to manage wildlife for the public and we successfully defended against that challenge,” he said.

Jeff Lukas with Montana Wildlife Federation, one of the intervening parties, said MWF is gearing up for UPOM’s appeal to the Montana Supreme Court and preparing to fend off attempts to undermine the North American model of wildlife conservation at the Montana Legislature.

“Montana Wildlife Federation has defended the North American model of wildlife conservation for nearly 90 years. No commercialization or privatization is allowable, and this is a hill we will die on,” Lukas said. “Hunters and conservationists should be asking for Montana Supreme Court — and every candidate, for that matter — about their position on the North American model and public trust doctrine to make sure that their values for wildlife management are aligned with our rich tradition of hunting and fishing in Montana.”

For the second time in as many months, a state district court judge has sided with Montana Fish, Wildlife and Parks and hunting groups in a lawsuit over elk management.

As with other orders, Judge Todd’s most recent ruling foregrounded programs designed to provide members of the hunting public access to private land to mitigate wildlife-related property damage.

Todd wrote that it is “undisputed that access programs such as the Block Management program, elk hunting access agreements and public access land agreements were created to reduce elk populations through increased access.”

A little over a year after UPOM filed its lawsuit, the state finalized a new elk management plan to replace the 2005 plan it adopted when an estimated 100,000 elk lived in Montana. A 2022 survey put the state’s elk population at 141,000 animals.