United States District Court Judge Donald Molloy of Missoula dealt a serious blow to elk game farm proponents Friday when he ruled against two game farm owners who were seeking a preliminary injunction against the fee-shooting provision of I-143, the initiative passed by Montana voters in last November’s general election.
The initiative outlawed the practice of collecting a fee from game farm clients for shooting captive elk. Game farm owners Kim and Cindy Kafka of the Diamond K Ranch and Connie and Pat Corbett of the Yellowstone Game Ranch had argued in their complaint that I-143 violates the commerce clause of the U.S. Constitution, as well as both federal and state equal protection clauses. They argued that the new law denies them due process and causes irreparable injury through economic hardship.
In his decision, Molloy notes that the state’s interest takes precedence over the commerce clause claim, writing that “The state has a legitimate interest in promoting fair chase hunting ethics and Montana’s hunting heritage and legacy when mandated by popular vote or otherwise.”
Molloy’s opinion recognizes that the state has an interest in protecting a hunting ethic, writing that “while the effect [that] resumption of fee killing itself would have on the risk of disease and hybridization is negligible, the effect that resumption of the fee killing on Montana’s hunting heritage and fair chase ethic is substantial.” As of press time, Molloy was considering a defense motion to dismiss the case entirely.
“The plaintiffs are disappointed that the court did not grant the preliminary injunction, but this case is still going forward,” says Stan Kaleczyc, attorney for the plaintiffs.
An interesting wrinkle to the case is playing out in Fergus and Philips counties, where individual game farm owners have won temporary restraining orders (TROs) preventing the Department of Fish, Wildlife and Parks from issuing citations for the practice of transferring ownership of an elk to a client, and then allowing that client to harvest the animal. According to FWP’s game farm coordinator Tim Feldner, the agency believes that such transfers of ownership violate the law.
“If an individual owned the animal prior to Nov. 7 of last year, it would be legal,” says Feldner, “but not if the transfer of ownership occurred after the law went into effect.”
Since the TROs effectively allow fee-shooting, FWP attorneys expect a ruling in that case in the near future.