How a lawsuit, two coalitions and a public trust petition are shaping Montana’s elk management debate.
By Amanda Eggert MONTANA FREE PRESS
It seems that nobody is happy with the state of elk management in Montana.
Public land hunters say hunting on state and federal land is becoming an increasingly crowded and fruitless pursuit. Large landowners say they’re taking heavy financial losses as the state’s swelling elk population seeks forage and harbor from hunters and other predators on private property. Outfitting groups argue it’s difficult to build a sustainable business model for lucrative bull elk hunts given the inherent uncertainty of the state’s permit draw system. Recreational access and wildlife advocates counter that the state is edging toward privatizing wildlife with offerings like a landowner incentive program that’s been dubbed “bulls for billionaires.”
Just about all parties, including those with vastly different positions, argue that science, not politics, should drive the discussion as Montana Fish, Wildlife and Parks and the Fish and Wildlife Commission use a limited set of tools to manage elk to meet objectives, or FWP-derived population targets initially set in 2005 that are based on landscape carrying capacity and landowner tolerance. Historically, FWP and the governor-appointed commission have attempted to raise, lower or redistribute elk populations across the state’s 99 management units with biennially adjusted season dates and tag-allocation frameworks and programs that use payments or tax breaks to incentivize landowners to open their properties to the hunting public.
But when Henry “Hank” Worsech came out of retirement last year to take the helm of FWP, Republican Gov. Greg Gianforte tasked him with finding a new approach to balancing landowner concerns with hunter opportunity. That directive has caused the department and the commission considerable heartache as they’ve attempted to shift the status quo. In the year and a half since Worsech’s nomination, a lawsuit, a slew of sharply worded editorials, a petition asking elected officials to recognize and uphold the public trust doctrine of wildlife management, and a Rural Montana Foundation report accusing the department of disregarding landowner concerns and being “more responsive to politics than science” have thrown both the commission and the department into the spotlight.
Given the variety of variables and values at play, elk management has proven to be a “very, very tough nut to crack,” according to retired wildlife biologist and current Montana Wildlife Federation President and Board Chair Chris Serveen. But he told MTFP that he hopes the state will hold firm to its history of recognizing wildlife as a public resource and stymie undue political influence by keeping elk management under the purview of the state’s Fish and Wildlife Commission rather than the Legislature, a prospect he described as a “recipe for disaster” that will favor political pressure over science-based management.
A measure passed by the Legislature in 2003 is the linchpin of an April lawsuit brought by United Property Owners of Montana, a 501(c)6 — a membership-based nonprofit that exists to promotes its members’ business interests — that credits concerns about elk management and other issues impacting large landowners in central and eastern Montana with its 2008 formation.
That law requires FWP to manage elk, deer and antelope populations to keep them “at or below the sustainable population.” It also lists tools that the department can use toward that end: liberalized harvests; game damage hunts (whereby landowners struggling with high numbers of elk can bring hunters onto their property to stem further forage loss); animal relocation; and landowner permits, which give property owners the ability to kill game animals themselves or distribute tags to individuals as they see fit, depending on the particulars of the system.
In an April 6 filing with Fergus County District Court Judge Heather Perry, United Property Owners contended that the state’s elk population exceeded the state’s objectives in 56 of 99 units last year and that poor management by the defendants — FWP and the commission — has mired them in a “crisis of [their] own making”
“Amongst other relief, the Court should order the Defendants to remove, harvest, or eliminate thousands of elk this year, as there are around 50,000 excess elk in the state above the maximum population levels set by the Defendants themselves. Further, the Court should enjoin the Defendants from setting elk hunting regulations in a discriminatory and arbitrary manner based on ‘social issues’ and an improper animus toward landowners,” the filing reads.
In an interview with Montana Free Press, UPOM Executive Director Chuck Denowh said he’d like FWP and the commission to “reorient how they think about elk management” by doing things like raising the payments available to landowners participating in the state’s block management program and scrapping limited-entry permits in districts where elk counts grossly exceed population targets. He said the latter policy has forced agricultural producers, which Denowh describes as “the real stakeholders in elk management,” into a difficult financial position by reducing the forage they can feed to their livestock.
“[Those concerns] should come first before we start setting policies about how big we want the horns to grow,” Denowh said, referencing a management framework that uses a tag-draw system to restrict hunting pressure, resulting in hunting units renowned for producing trophy bull elk. He describes the limited entry permit system FWP adopted in central and eastern Montana in 2008 as a coercive measure that sought to force landowners to open private property to public hunting.
Although some UPOM members participate in programs like block management, allowing public access to private property is a non-starter for others, Denowh said, arguing that landowners shouldn’t have to choose between unwilling support for the state’s elk population or opening their gates to hunters they’ve never met.
“It is well known that [FWP] employees will not respond to legitimate concerns about property damage if the landowner is unwilling to abdicate their private property rights and allow public hunting on their property,” UPOM’s filing reads. “And when Defendants say, ‘public hunting’ they require landowners to throw their property wide open to strangers, including dangerous and reckless hunters or people with a reputation for damaging private property, as allowing access to guests, family, friends, neighbors, church members, guides, and other acquaintances is not considered ‘public hunting.’”
In addition to asking the court to invalidate the elk hunting regulations the commission adopted this winter, UPOM is asking the court to deem the commission’s role in wildlife management an unconstitutional delegation of policy-setting powers that properly belong with the Legislature, not the commission.
Denowh said the lawsuit is still in its early stages and he doesn’t anticipate a ruling anytime soon.
COW ELK NUMBERS, BULL ELK HUNTS
The number of parties hashing out elk management in the UPOM lawsuit grew recently when Judge Perry approved a request by hunting and access groups to intervene in the matter. The Montana Wildlife Federation, Backcountry Hunters and Anglers, Montana Bowhunters Association, Public Land and Water Access Association, Hellgate Hunters and Anglers, Helena Hunters and Anglers, and Skyline Sportsmen’s Association had argued that FWP and the commission won’t protect their interests and that UPOM misrepresented its real reason for filing the lawsuit.
“What plaintiff truly seeks is unilateral control and dominion over the elk which ‘trespass’ across their land,” according to the groups’ motion to intervene. “Plaintiff uses this suit as a subterfuge to gain the ability to use, sell, transfer, and otherwise control licensing for the killing of trophy bull elk — the market cost of which is upwards of $10,000.”
(Denowh disputes this characterization. Although some UPOM members run outfitting businesses themselves or lease their land to outfitters, most would rather ranch exclusively rather than devote time to the “people management business” that comes with commercial hunting, he said.)
“The best way to reduce numbers in places where there’s an awful lot of elk is to shoot cows [and] allow hunter access so they can get at those cows.”
MONTANA WILDLIFE FEDERATION PRESIDENT AND BOARD CHAIR CHRIS SERVEEN
The commercial value of bull elk tags also surfaced in MTFP’s conversation with the Montana Wildlife Federation’s Serveen, who argued that FWP and the commission could meet population objectives in short order if they focused on shrinking the reproductive segment of the elk population. But he said landowners and outfitters who lease property from landowners have little appetite for that approach because few clients paying for outfitted hunts are interested in hunting cow elk.
Serveen also said there’s a relationship between units that are exceeding population targets — largely in central and eastern Montana — and land ownership. Most of the units that are well over objective are dominated by private ownership, he said.
“The best way to reduce numbers in places where there’s an awful lot of elk is to shoot cows [and] allow hunter access so they can get at those cows,” he said.
A COUNCIL, TWO COALITIONS, A PLAN AND A PETITION: WHAT’S NEXT FOR ELK MANAGEMENT
The Fergus County lawsuit isn’t the only moving part in the current elk management conversation. While the court has been considering the department’s statutory responsibilities, FWP has been drafting a replacement for the state’s 17-year-old elk management plan and hosting a series of listening sessions around the state.
FWP also convened an advisory council after last winter’s contentious season-setting process. A suite of elk management proposals Worsech brought to the commission in December unleashed such a “firestorm” of public comment that he walked back several of them and pledged to convene an advisory council to increase transparency and involve more stakeholders in FWP’s decision-making.
More than 200 people applied to participate on the council, which was overseen by a moderator and tasked with moving past old debates and revisiting “old issues with fresh eyes.” FWP selected 12 participants from around the state. They met 10 times over Zoom during a five-month period to develop a list of recommendations to forward to the department. FWP has evaluated the proposals’ legality, staffing needs and funding requirements and expects to release them for public comment within the next week, according to FWP Special Projects Manager Deb O’Neill.
Another recently convened group also owes its formation to elk management controversies.
Last spring, the Montana Citizens’ Elk Management Coalition came together out of concern that “political opportunism” is threatening long-held traditions by vesting increasing power in politicians who may be inclined to shortchange the experience of Montanans who spend months hunting, fishing and exploring public land every year in favor of policies forwarded by think tanks seeking what the coalition describes as “new ways to make Montana more like Texas, where wildlife is a commodity and not part of the public trust.”
The coalition includes a dozen sporting, conservation and access groups. On Aug. 13 it hosted a daylong symposium in Bozeman, where about 100 people gathered to listen as lawmakers, national hunting personalities and wildlife managers from Montana and other states waded into some of elk management’s thornier issues. One of the insights that came out of that symposium is that despite a robust elk population, more and more Montana public land hunters are failing to fill their tags relative to neighboring states. A 2014 FWP report found that just 14% of public land hunters filled their elk tags.
Montana Wildlife Federation is one of the groups that helped organize the symposium. Marcus Strange, the organization’s state policy and government relations director, said the symposium was part of the coalition’s larger effort to spark discussions about elk management “early and often” so Montanans aren’t caught flat-footed when the 2023 Legislature gavels in and wildlife management bills start surfacing at the Capitol.
Strange described the symposium as the group’s most significant effort to date, and said a report synthesizing its takeaways will be available this fall. He said he hopes the group’s concerns are reflected in the state’s elk management plan rewrite, which is currently in the public scoping phase. A draft of that plan is expected in fall 2023.
In the meantime, a new group called the Montana Public Trust Coalition is urging legislative candidates to sign its “Montana Public Trust Promise.” Signatories vow to reject any efforts to reduce public land or turn public waters, fish and wildlife into private property, and to “protect and defend Montana’s Constitution, particularly our right to hunt and fish and our right to a clean and healthful environment.”
The Montana Public Trust Coalition website went live over Labor Day weekend. Supporters include former governors Steve Bullock, a Democrat, and Marc Racicot, a Republican. Former Republican Secretary of State Bob Brown, nine former fish and wildlife commissioners and 10 members of the Montana Outdoor Hall of Fame also support the coalition.
Coalition member Andrew Posewitz told the Missoula Current that the website seeks to both put lawmakers on notice that Montanans are scrutinizing their actions at the Capitol and identify which legislative candidates have promised to protect the public trust and support the state’s hunting and fishing heritage. He said it’s critical that Montanans pay attention and remain engaged.
“If you haven’t lost enough, you don’t pay attention. And some people aren’t aware of how much we’ve already lost.”
For his part, Serveen is holding out hope that the various efforts that have been organized around elk management will point the state toward “a more sustainable path on elk management” emphasizing “the equitable management of elk for all.”
“If we erode the idea that the elk belong to the public and we get into the slippery slope of saying that elk belong to the landowners where the elk are, then we’ve lost the whole North American model,” he said. “We’re going back to the Dark Ages, the Middle Ages, in which the king owns all of the wildlife and the rest of us are stuck with what’s left. And I sure hope we don’t.”