Montana’s elk population has tripled over the last 40 years.  For decades we have exceeded the sustainable objective levels in most hunting districts.  FWP’s goal is 92,000 elk in Montana, but today there are an estimated 175,000.  That excess elk population causes immense damage to family ranch operations in overpopulated areas, and it’s a problem that grows worse every year.

What’s frustrating is we saw this problem coming years ago and set policy to address it.  In 2003 I sponsored House Bill 42, which mandated that the Montana Fish & Game Commission use all management tools available in order to keep big game populations at objective levels.  That legislation specified that the Commission should use “liberalized harvests, game damage hunts, landowner permits, (and) animal relocation” to reach objective.

Read more: Debby Barrett: It’s time for FWP to follow the law on elk management

That hasn’t happened.  In fact, the Commission has repeatedly rejected appeals to liberalize harvests in the most over-objective hunting districts in the state.  Earlier this year, the Commission voted down a proposal to increase archery and rifle permits in several districts that are more than double their population objectives.  Their decision came in response to intense lobbying to keep these hunting districts as exclusive trophy hunting areas.

Nowhere in Montana law is the Commission given the authority to prioritize areas for trophy hunting.  The legislature would never grant that authority because to do so would require ranchers in those areas be singled out for disparate treatment.  Trophy areas can only be created by limiting hunting opportunity, limited hunting opportunity leads to excessive elk populations, and excessive elk populations lead to extreme damage to crops, forage, and feed.

In other words, to create a trophy hunting area requires imposing undue expenses on a few unlucky ranchers singled out by the Commission.

Wildlife management shouldn’t be a popularity contest or decided by who yells the loudest.  But that’s what it’s become.  Instead of careful, science-based consideration of how best to utilize our resources, the Commission is now only responsive to lobbying by sportsmen who want more elk and with bigger racks. 

HB 42 was intended to protect the rights of ranchers (who bear the costs of elk) against the wants of sportsmen (who are the beneficiaries of elk).  The former are vastly outnumbered by the latter.  What’s worse is the misalignment of incentives between those who benefit from huge elk herds and those who pay the cost.

The policy set forth by the legislature is clear.  Wildlife managers have a statutory obligation to protect the rights of the minority by minimizing the damages they incur.  That’s supposed to be accomplished by setting a target population objective developed through a calculation of what the habitat can sustain and what landowners can tolerate.  After the objective is set, management policy is supposed to use all tools available to bring the population level in line with the objective.

None of this is happening.  The Commission has failed to follow the law and as a result they’ve created immense damage to individual ranchers.  This problem has been building for decades, and it has finally come to a head with a lawsuit filed by ranchers seeking to compel the Commission to change their management practices.

The legislature can write laws, but it’s up to the executive branch to implement them.  In this case, the Fish & Game Commission has failed in their duty to implement the law, resulting in excessive damages.  To alleviate those damages, the only recourse is for those ranchers to seek relief from the judiciary.  For the sake of Montana’s elk herd and habitat, let’s hope they prevail.

Debby Barrett served in the Montana Legislature from 2001 to 2015.  She was elected President of the Senate in 2015 and served on the House and Senate wildlife committees.

In a recent opinion piece, state legislators Tom France and Pat Flowers try to make the case that Governor Gianforte is planning to “privatize” Montana’s elk herds at the behest of greedy ranchers. In a bizarre twist of logic, the foundation of their thesis is the fact that those same ranchers are suing the Gianforte administration for improper elk management. Even if their narrative quickly unravels under scrutiny, it deserves a response.

France and Flowers know perfectly well that no governor can privatize elk. Commercial elk farms were banned in Montana with the passage of I-143 in 2000. Elk, like all wildlife, are a public resource managed by government trustees for the benefit of all. In Montana, no one can own elk—this is not in dispute.

The lawsuit brought against the state by United Property Owners of Montana (UPOM) is not an attempt to privatize elk, its objective is to address the significant damage some ranchers are suffering due to elk policies that have resulted in explosive, unsustainable population growth in a few areas.

The most recent elk population counts show a disturbing trend of Montana’s elk herd increasing to crisis levels in many areas of the state. Three quarters of Montana’s hunting districts have an elk population above the sustainable population objective set by the Montana Fish & Game Commission, with over thirty districts at more than double the objective number.

“This has been the trend for years—the elk population continues to grow far beyond what the biologists estimate as a healthy, sustainable level,” said Chuck Denowh, the policy director of United Property Owners of Montana. “Today we are at nearly double the number of elk that we should have in Montana.”