Under the gun 

Montana’s game farm owners take aim at overturning I-143

Oral arguments were heard Friday in federal court in Missoula for Kafka/Corbett vs. Hagener/Bridges, in which Montana’s game farm industry was seeking a preliminary injunction against the ban on “canned hunts” or “fee-shooting” in I-143, the initiative passed by statewide referendum last November. As an issue that taps the deep emotional and moral ground of hunting ethics, the arguments were flying both inside and outside the courtroom.

“You people don’t know what honest is,” said one game farm proponent as he dressed down a Fish, Wildlife and Parks (FWP) official outside the courtroom after the hearing. “You can’t be a sportsman—hell , you can’t even be a man—and support I-143!”

I-143, which voters approved by a margin of 52 to 48 percent, prohibits: 1) the licensing of new game farms, 2) the expansion of existing game farms, and 3) the practice of canned hunts, in which game farm clients (almost exclusively from beyond Montana’s borders) pay a considerable fee to kill elk that have been raised within fenced enclosures. The target animals are invariably mature bull elk that score highly in Safari Club International points.(The more familiar Boone & Crockett ratings apply only to wild animals.)

The lawsuit, filed by the Kafka and Corbett families (who run game farms in Havre and Sydney, respectively), names FWP Director Jeff Hagener and Department of Livestock Executive Officer Marc Bridges as co-defendants. FWP and the DOL currently share jurisdiction over game farms, a condition that neatly sums up the philosophical chasm between the two sides; namely, that game farm owners view the captive elk as livestock and the pro-I-143 team holds that the animals are exploited wildlife.

The plaintiffs argued that I-143 has caused irreparable harm to their livelihood, and although the injunction they seek targets only the canned hunt section of the statute, Stan Kaleczyc, lawyer for the plaintiffs, said that the ultimate intent of the game farm owners is to overturn the entire law. Much of the plaintiffs’ case was engulfed in technical legalese, such as the law’s alleged violation of a dormant commerce clause (designed to protect business generated from customers outside the state, as is the case with most fee shooting). But their case seemed to strike home with the argument that the prohibition of canned hunts violates the equal protection paradigm. In other words, the plaintiffs argued that if it’s legal to charge people to catch fish out of a stocked pond, or charge by the bird on a game preserve on which pheasants are bought and stocked, or allow fee shooting of captive bison (all of which are permitted under state law), then fee shooting for captive elk must also be legal.

The defense did not address the basic notion of the equal protection paradigm except to note that the state legislature had already grouped game farms separately from the previously mentioned animals. “Alternative livestock,” by the Legislature’s definition, includes elk and deer but not bison, pheasant or trout.

The nut of this case, however, appeared to rest upon the notion of hunting ethics. When the defense brought up the argument that canned hunts inherently degrade both the status of elk as wild, free-ranging animals and the “fair chase” ethic upon which our entire system of hunting and game management is built, Judge Molloy expressed some skepticism. “It strikes me as a stretch to label this as ‘ethical behavior,’” said Molloy, adding that the question of ethical behavior specifically addresses that which harms people, such as rape and murder.

The defense countered with a two-pronged argument: 1) that a strict adherence to the fair chase ethic is crucial to maintaining a positive public perception of hunting, and therefore necessary to hunting’s longevity, and 2) that examples of hunting ethics already exist in state law, such as rules that prohibit hunting from a vehicle, using a silencer, or using dogs in certain hunts.

For Dave Stalling of the Montana Wildlife Federation and Sportsmen for I-143, the ethics argument runs to the very core of our democratic system. “Fee shooting is a complete and gross violation of a highly evolved hunting and game management program,” says Stalling. “I don’t think people—even hunters—really understand how unique our system is in this country. Contrast our equal-access, public-controlled game management with that of Europe, where animals are privately owned and available only to those who have the money to hunt. I don’t think it’s far-fetched to suggest that the privatization and commercialization of wildlife perpetuated by game farms could lead us away from our system. And that would be tragic.”

Game farm owners in general have little patience for that argument. “That poor little ethical problem generated by the state—sorry, the hunters alone have done a good job of it—does not apply to us because you can’t impose wildlife ethics on animals raised for slaughter,” says Jack Schubarth, a partner in one of the plaintiffs’ game farms. Besides, Schubarth labels his services “ranch adventures” and says that fee-shooting “is not really hunting. The client may be hunting in his mind, but in my mind it is a simple harvesting of an animal. And I make sure that it’s done in the most humane way possible.”

Judge Molloy’s ruling on the preliminary injunction is eagerly awaited by those on both sides of the fence. Hunting season—and the time of year when elk, both wild and domesticated, grow their sought-after racks—is rapidly approaching. A number of game farms have continued advertising their fall fee-shoots in national magazines, even though they are currently illegal. “I’m booking harvests for the fall because I’m positive we will win this,” says Schubarth.

Regardless of the outcome of this hearing, an appeal will likely be filed by the losing side. And if the injunction is denied, the defense has submitted a motion to dismiss the case entirely.

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