Judge: Where's the damage?

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.

The dispute relates to a 2003 law directing Fish, Wildlife and Parks to manage elk "at or below" the sustainable populations established in the state's elk management plan. Two years ago, the United Property Owners of Montana, a membership-based nonprofit that promotes its members' business interests, sued FWP, arguing that swelling elk populations have damaged its members' bottom lines.

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." 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 a hearing scheduled for Oct. 21, and the latest order, issued last week by District Court Judge Gregory Todd, further trims the issues that will be considered at that hearing.

In the most recent order, 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. Todd appeared frustrated that UPOM did not include the names and addresses of its injured members in its filings or respond to discovery or deposition requests for such information, describing the group's opposition to producing it as "unbelievable."

As with previous orders, the Aug. 12 order enumerates the programs available to landowners to address damage incurred by elk - block management and elk hunting agreements as well as nonlethal efforts such as hazing, fencing or relocation - and concluded that "UPOM members are not left without a plain, speedy, or adequate remedy and have not suffered irreparable injury regarding elk on their property."

Chuck Denowh, UPOM's policy director, told Montana Free Press that "the heart of the lawsuit" regarding the state's compliance with a law passed in 2003 seeking to mitigate landowner concerns related to an overabundance of elk in some districts remains active.

Rob Farris-Olsen, an attorney representing the groups that have intervened in the lawsuit, said Todd could issue a summary judgment on that point prior to Oct. 21, negating the need for a hearing and closing the book on the lawsuit.