Montana’s Trap-Free Initiative In Conflict With Constitution

The Montana Trap-Free Public Lands Initiative would ban trapping on public lands if passed. This appears to be in direct conflict with the Montana State Constitution.

Gary Marbut, President of the Montana Shooting Sports Association and the originator of the language that exists in the Montana Constitution that protects the heritage of hunting, fishing and trapping, responds to the initiative with comments accordingly.

Dear Mr. Johnstone,
ajohnstone@mt.gov

This is the comment of the Montana Shooting Sports Association concerning the proposed statutory initiative to prohibit trapping on public lands in Montana.

Please note, I was the originator of the language currently in the Montana Constitution to protect Montana’s heritage of harvesting wild fish and wild game animals in Montana, and MSSA was the chief proponent of that constitutional referendum before the Montana Legislature. That language is now found in Article IX of the Montana Constitution and reads:

“Section 7. Preservation of harvest heritage. The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.”

This constitutional referendum came from House Bill 306 in the 2003 legislative session, sponsored by Rep. Joe Balyeat, and passed the House on Third Reading by a vote of 81-71 and passed the Senate by 49-1. When voted on by the people of Montana it obtained the strongest approval of any constitutional change in Montana history.

When I was developing language for HB 306, first drafts included language to constitutionally protect “hunting and fishing” in Montana. Then I was approached by representatives of the Montana Trappers Association who wished their members to be included in the protections offered. I revised the language to the more generic “harvest wild fish and wild game animals” very specifically to include trapping within the constitutional protection to be created. The legislative record for HB 306 will confirm that HB 306 was intended to protect trapping, as well as hunting and fishing. And, Greg Petesch, chief attorney for the Montana Legislative Services Division, assured sponsor Rep. Balyeat at the time that the placement and language of the measure in the Constitution would indeed accomplish the goal of protecting all “harvest wild fish and wild game animals” from statutory or other assault short of a constitutional amendment.

Therefore, the proposed initiative is clearly in conflict with the constitutional protection adopted by the people of Montana. If this statutory initiative is allowed to proceed at all, the constitutional protection afforded trapping in the Montana Constitution dictates several changes in the ballot statement and the fiscal note:

1. Some mention should be made in the statements of purpose and implication that this initiative is probably in conflict with the Montana Constitution’s protection for the “harvest wild fish and wild game animals.”

2. Because of the constitutional protection, there will almost certainly be litigation over this initiative. Such litigation could conceivably place the Attorney General in the awkward position of choosing either to defend the Montana Constitution or defend a statute. The likely costs of this litigation should be reflected in the fiscal note associated with the initiative.

3. The statement of purpose, “FOR / AGAINST prohibiting recreational and commercial trapping of animals on public lands in Montana” is misleading and prejudicial, especially the use of the words “recreational and commercial.” I suggest that these words be dropped, both because they are misleading and thereby prejudicial, and because they are unnecessary to the import of the statement. Further, I suggest that the word “wild” precede the word “animals” in the statement. With these changes, the statement would read, “FOR / AGAINST prohibiting trapping wild animals on Montana public lands.” Then I suggest you add, “This prohibition appears to violate constitutional protection for the ‘harvest [of] wild fish and wild game animals’ .” (Total of 25 words.)

4. The fiscal note should reflect much more than just the predictable loss of revenue from curtailed license sales by the state. What about the cost of public employee time lost to deal with rodent (“non-game wildlife”) infestations in public buildings (“public lands”) in local and state government across Montana? Under the initiative, pest control firms (“contractors”) could not be hired to address such problems. What about (non)containment of diseases carried or spread by the protected animals and the impact of such diseases on the Montana agricultural community? What about the impact on other wildlife species because FWP no longer has trapping available as a tool for wildlife management?

Sincerely,

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com