Wallaces sue state seeking millions
By BUDDY SMITH Staff Reporter
Len and Pamela Wallace of Darby and two elk farm owners in Blaine County have filed a multi-million-dollar lawsuit alleging the state's enforcement of two-year-old game farm restrictions violates their rights and constitutes an illegal taking without just compensation.
The Wallaces, of Big Velvet Ranch, and Bruce and Shirley Buhmann, who own Circle Eagle Game Farm, are suing for more than $22 million in damages, "including lost profit in the business, lost investment in the animals, lost investment in the license acquisition and maintenance, lost good will, and all other compensation."
The 16-page civil suit, filed June 4 in Blaine County District Court in Chinook, lists as defendants the state of Montana, Attorney General Mike McGrath and Montana Fish Wildlife and Parks Director Jeff Hagener.
Voters in November of 2000 approved game farm restrictions in Montana. Initiative 143 bans for-fee hunts, new game farm licenses and the transfer of existing licenses.
The court papers, filed by Bozeman attorney Arthur Wittich on behalf of the Buhmanns and Wallaces, said the U.S. Constitution prohibits the government from taking private property for public purposes without just compensation and that the Montana Constitution prohibits the taking and damaging of property without compensation.
They argued that I-143 and the state's enforcement of the law both took and damaged the game farmers' private property rights, without compensation, "by specifically taking the only viable source of profitability (i.e., shooting animals for a fee), thereby destroying the Montana breed stock sale market and prohibiting the transfer of licenses."
"The lawsuit was filed to obtain compensation from the state of Montana for the taking of private property, as per the Montana and U.S. constitutions," Wittich said in an interview Monday.
A state attorney also on Monday said Montana will defend the game farm restrictions "vigorously."
Among numerous other legal arguments put forth, the suit contends that by banning transfer of the game farm licenses and their value as a result of the owners' investments, the state has taken the game farmers' property rights and licenses and the profitable use of the land and increased value of the land as a result of the licenses.
They argued the prohibitions imposed by I-143 are "arbitrary, capricious, unduly oppressive and unreasonable." "In essence, I-143 does not regulate plaintiffs' business, it abolishes it," the game farmers said in court documents.
The Buhmanns purchased elk and began a breeding operation of about 30 elk and an exclusive dealership of elk feed supplements. The Wallaces started Big Velvet Ranch up Rye Creek Road in 1992, when they bought the 3,800 acres out of bankruptcy. They went on to own the nation's largest managed private elk ranch and from 1997 to 1999 harvested on average more than 100 mature bulls yearly and earned gross revenues of more than $1 million per year, court documents said.
The Wallaces depended largely on for-fee hunts of mature elk in conjunction with a lodge setting. Clients paid different prices to hunt an elk, including an average of $7,000 for mature bulls, the court filings said.
Since I-143 prohibits fee shooting, "compounded by FWP's interpretation of the initiative language not allowing live animal sales for later shooting, there is no viable market with other alternative livestock licensees in Montana for breed stock owned by the game farmers," the court papers say.
The suit is the second such case filed by game farmers against the state of Montana that involves "takings" allegations, said Bob Lane, an attorney for Fish, Wildlife and Parks in Helena. Another case, filed by game farmers Kim and Cindy Kafka in Hill County District Court, is still pending. The couple sued unsuccessfully in federal court.
Lane said the Attorney General's Office is handling this latest case with assistance from FWP. He said his department and state attorneys will try to prove the Wallaces and Buhmanns do not have a valid claim against the state and the provisions of I-143.
"We're going to defend it vigorously," Lane said. "We think the initiative is the will of the people and that's what the law is. And those are the conditions under which a person can operate, and we're going to defend against any claim of a taking."
Lane said a briefing schedule has not been set so he did not know when the state will file its answer in court.
The Wallaces, meanwhile, have challenged unsuccessfully the ban on fee shooting in Ravalli County District Court. The Wallaces wanted to be able to sell elk to someone and then let the new owners shoot their property if they chose to do so. The Wallaces since last year have liquidated their herd of 1,000 elk, sold most of their property and turned in their game farm license. Last year, they gave the Crow Indian Tribe 67 elk until a court stopped anymore shipments of the elk to the wild, and have given some animals away in free hunts.
By BUDDY SMITH Staff Reporter
Len and Pamela Wallace of Darby and two elk farm owners in Blaine County have filed a multi-million-dollar lawsuit alleging the state's enforcement of two-year-old game farm restrictions violates their rights and constitutes an illegal taking without just compensation.
The Wallaces, of Big Velvet Ranch, and Bruce and Shirley Buhmann, who own Circle Eagle Game Farm, are suing for more than $22 million in damages, "including lost profit in the business, lost investment in the animals, lost investment in the license acquisition and maintenance, lost good will, and all other compensation."
The 16-page civil suit, filed June 4 in Blaine County District Court in Chinook, lists as defendants the state of Montana, Attorney General Mike McGrath and Montana Fish Wildlife and Parks Director Jeff Hagener.
Voters in November of 2000 approved game farm restrictions in Montana. Initiative 143 bans for-fee hunts, new game farm licenses and the transfer of existing licenses.
The court papers, filed by Bozeman attorney Arthur Wittich on behalf of the Buhmanns and Wallaces, said the U.S. Constitution prohibits the government from taking private property for public purposes without just compensation and that the Montana Constitution prohibits the taking and damaging of property without compensation.
They argued that I-143 and the state's enforcement of the law both took and damaged the game farmers' private property rights, without compensation, "by specifically taking the only viable source of profitability (i.e., shooting animals for a fee), thereby destroying the Montana breed stock sale market and prohibiting the transfer of licenses."
"The lawsuit was filed to obtain compensation from the state of Montana for the taking of private property, as per the Montana and U.S. constitutions," Wittich said in an interview Monday.
A state attorney also on Monday said Montana will defend the game farm restrictions "vigorously."
Among numerous other legal arguments put forth, the suit contends that by banning transfer of the game farm licenses and their value as a result of the owners' investments, the state has taken the game farmers' property rights and licenses and the profitable use of the land and increased value of the land as a result of the licenses.
They argued the prohibitions imposed by I-143 are "arbitrary, capricious, unduly oppressive and unreasonable." "In essence, I-143 does not regulate plaintiffs' business, it abolishes it," the game farmers said in court documents.
The Buhmanns purchased elk and began a breeding operation of about 30 elk and an exclusive dealership of elk feed supplements. The Wallaces started Big Velvet Ranch up Rye Creek Road in 1992, when they bought the 3,800 acres out of bankruptcy. They went on to own the nation's largest managed private elk ranch and from 1997 to 1999 harvested on average more than 100 mature bulls yearly and earned gross revenues of more than $1 million per year, court documents said.
The Wallaces depended largely on for-fee hunts of mature elk in conjunction with a lodge setting. Clients paid different prices to hunt an elk, including an average of $7,000 for mature bulls, the court filings said.
Since I-143 prohibits fee shooting, "compounded by FWP's interpretation of the initiative language not allowing live animal sales for later shooting, there is no viable market with other alternative livestock licensees in Montana for breed stock owned by the game farmers," the court papers say.
The suit is the second such case filed by game farmers against the state of Montana that involves "takings" allegations, said Bob Lane, an attorney for Fish, Wildlife and Parks in Helena. Another case, filed by game farmers Kim and Cindy Kafka in Hill County District Court, is still pending. The couple sued unsuccessfully in federal court.
Lane said the Attorney General's Office is handling this latest case with assistance from FWP. He said his department and state attorneys will try to prove the Wallaces and Buhmanns do not have a valid claim against the state and the provisions of I-143.
"We're going to defend it vigorously," Lane said. "We think the initiative is the will of the people and that's what the law is. And those are the conditions under which a person can operate, and we're going to defend against any claim of a taking."
Lane said a briefing schedule has not been set so he did not know when the state will file its answer in court.
The Wallaces, meanwhile, have challenged unsuccessfully the ban on fee shooting in Ravalli County District Court. The Wallaces wanted to be able to sell elk to someone and then let the new owners shoot their property if they chose to do so. The Wallaces since last year have liquidated their herd of 1,000 elk, sold most of their property and turned in their game farm license. Last year, they gave the Crow Indian Tribe 67 elk until a court stopped anymore shipments of the elk to the wild, and have given some animals away in free hunts.