Oral argument was held today on the U.S. Motion to Dismiss MSSA v. Holder, our lawsuit to validate the principles of the Montana Firearms Freedom Act.

The hearing took place in the U.S. Courthouse at the corner of Broadway and Pattee in Missoula, beginning at 9:00 AM, and finished shortly after 11:00 AM.

The U.S. moved to dismiss the lawsuit (standard, boilerplate move) based on standing, jurisdiction, and merit.

Concerning standing, the U.S. argues that I, as the sole individual plaintiff, don’t face imminent injury to allow me to obtain judicial relief because there is no certainty that the BATFE will arrest me and the U.S. will prosecute me if I forge ahead with plans to make MFFA items without federal permission (licensure).

About jurisdiction, the feds say the U.S. is sovereign and cannot be sued, except under the provisions of the Administrative Procedures Act which allows suit to clarify rights and responsibilities only after “final agency action.” The U.S. says that the BATFE letter to me advising me that I will be prosecuted if I make any MFFA items for resale is not final agency action, although the U.S. cannot say what other position the BATFE could take to grant me any relief beyond what it already has done (threaten me with prosecution if I make MFFA-protected items).

About merit, the U.S. says that precedent is against the MFFA concept, our side is bound to lose, so the court might as well just dismiss the lawsuit now.

In this hearing, the U.S. was represented by Jessica Leinwand, a young Department of Justice attorney from D.C. Jessica seemed bright, competent, well prepared, but only knowledgeable in a bookish way. That is, she seemed quick with and knowledgeable about case citations that supported her side of the argument, but she did not mount or support any philosophically-based arguments. Although Jessica’s arguments seemed to be competently mounted, they also seemed to lack any touch of passion or personal vestment. One may suppose it’s difficult to wax passionate about arguing the federal government position.

For a young attorney with limited experience to travel half way across the country to a strange place and stand in opposition to a half-dozen other experienced attorneys must be a nervous-making, intimidating experience. However nervous, Jessica did not let it show and did a good job of focusing on business at hand.

There were a whole string of attorneys representing our side of this contest. Lead attorney for Plaintiffs (MSSA, SAF, and me) was Quentin Rhoades, a partner with the Missoula firm of Sullivan, Tabaracci and Rhoades. Quentin has been lead counsel for Plaintiffs on this case since the inception, and has done other litigation for MSSA. Quentin was accompanied by ST&R attorney Rob Erickson, although Rob did not argue.

Plaintiffs had arranged in advance to give some of our argument time to two other attorneys representing amici parties to the lawsuit. One is Nick Dranias of the Goldwater Institute in Arizona. Montana federal court rules require that attorneys from out of state must associate with and be “sponsored by” a Montana attorney in order to appear in federal court in Montana. Nick was sponsored by attorney Tim Fox of Helena, recent candidate for Montana Attorney General.

The other amicus to whom Plaintiffs ceded some argument time was Virginian attorney Herb Titus, who represents Gun Owners of America and Gun Owners Foundation. Herb was sponsored in Montana by attorney Greg Jackson of Helena.

The Attorney General of Montana has intervened in this lawsuit to defend the constitutionality of a statute enacted by the Montana Legislature and was given oral argument time separate from that given to Plaintiffs and Defendant U.S. The Montana AG was represented by attorney Chris Tweeten from the Montana Department of Justice in Helena.

The AG was persuaded to cede some of his allocated oral argument time to Professor Jeff Renz of the U. of M. School of Law, who argued for another amicus group of Montana legislators.

Forward of the bar in the courtroom were the judge – Magistrate Judge Jeremiah Lynch, the court secretary, the judge’s two law clerks, Quentin, me, Jessica (and Jessica’s unnamed assistant), Tim, Nick, Greg, Herb, Chris and Jeff. There were about 40 people in the audience, including MSSA Board Member and State Representative Cary Smith from Billings, State Senator Jim Shockley from Victor, Idaho Representative Dick Harwood who sponsored the Idaho Firearms Freedom Act, a delegate from Congressman Denny Rehberg’s office and interesting others.

The order of presentation was this:

Magistrate Lynch introduced the case.

Quentin explained time ceded to Nick and Herb and introduced the Montana sponsors for each who introduced Nick and Herb to the court.

Chris introduced himself and introduced Jeff.

Then the hearing began.

Jessica went first for 35 minutes (all times approximate), and reserved 15 minutes for rebuttal at the end.

Quentin went next for 20 minutes, then Nick for 10 minutes, and Herb for another 10 minutes.

Following those, Chris argued for 15 minutes, and finally Jeff for 10 minutes.

Last, Jessica used her reserved 15 minutes for rebuttal/closing.

I will not attempt to cover all of the arguments made or questions asked by Magistrate Lynch. There was not a lot of new material that was not already in briefs provided by various parties, all of which is available from the FFA Website.

Although all attorneys involved (including Jessica) did a great job, Jeff carved out for himself the role of a cleanup batter. He used his final ten minutes primarily to address issues left in play by questions from Magistrate Lynch. In jumping into that cleanup role, I thought Jeff did an especially helpful job.

I have asked ALL others present (including audience members) to offer personal comment about the hearing today, and I will post those comments Online when available and send you a link. This location will also offer digital pics of all the folks involved (outside the Courthouse).

I will say that I thought we had a powerful presentation by those on our side (i.e., everyone but Jessica). Our net argument was that the lawsuit should not be dismissed, but should go to trial for development of relevant facts. There are far too many legal issues and subtleties at work to attempt to brief you on all of them here. However, if an entirely neutral judge were presented with all the briefs submitted and arguments heard today, I believe he’d let the matter go to trial. Of course, I’m not prejudiced.

Whether or not that will actually happen remains to be seen. Quentin thinks we may have a decision within two weeks, but I don’t think anyone really knows for sure.

No matter, the game is now engaged – we are on the field. We are in play with MSSA v. Holder and at the wave front of a tsunami of interest in states rights sweeping the U.S.

Best wishes,

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

You should remember that MSSA v. Holder is our lawsuit to validate the principles of the Montana Firearms Freedom Act.

We don’t know yet which courtroom in the federal courthouse in Missoula will be used. Whatever one is used it would be great for the spectator area to be fully occupied. It should be an interesting day.

Several folks have asked if cameras or video recorders are allowed. I’m told that no recording devices are allowed in a federal courtroom (at least in Missoula).

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

Send Pictures to:

Todd Krater
U.S. Hunting Today
Managing Editor
todd@ushuntingtoday.com

Note: If you want a picture posted and do not have a digital copy I would be willing to scan it for you.  Please contact me for details.

US Hunting Today reserves the right to refuse any picture for any reason as well as edit it where appropriate.

Jim Beers, former Chief of National Wildlife Refuge Operations, will address the lies, deceit and fraud employed by the U.S. Fish and Wildlife Service, the state wildlife agencies in Montana and Idaho and environmental groups to illegally introduce Canadian wolves where they were never native, nor endangered.

His presentation begins at 1:00 p.m. on Sunday, May 16, 2010, at the Gran Tree Inn in Bozeman, Montana. Admission is free.

”This is the first time I have spoken exclusively on this subject of all the violations of law committed by government bureaucrats, non-governmental organizations, Washington lobbyists and political appointees who introduced and spread wolves in the West,” states Jim Beers, who worked in various capacities with USFWS for 32 years.

He is probably best known for his role in exposing the USFWS theft of up to $60 million from funds collected as excise taxes on sporting firearms, ammunition and fishing tackle. This money is to be distributed back to state wildlife agencies for habitat improvement and to provide greater outdoor opportunities for sportsmen. (In 2009, the amount divided nationwide totaled more than $700 million.) The millions embezzled by USFWS went into a slush fund used for agency appointee bonuses and for other unauthorized purposes. Beers claims one of those purposes was to provide illegal funding for reintroducing wolves into Yellowstone – funding Congress refused to provide.

Other wolf introduction issues he will address include the improper and illegal manner in which federal and state wildlife agencies justified wolf introduction, the false claims made by these agencies and how the legal intervention by environmental organizations, such as the Defenders of Wildlife, is very much to blame for the dramatic drop in elk, deer and other big game numbers.

There will be an hour long question and comment period following the presentation, followed by an hour long reception.

This presentation is wholly sponsored by Friends of the Northern Yellowstone Elk Herd. Its purpose is to unify those who have been harmed by the illegal forced introduction of wolves by federal and state wildlife agencies and to fund a lawsuit to put an end to the destruction wolves are dealing our wildlife resources.

Every sportsman who hunts, or anyone who just enjoys watching wildlife, needs to attend this presentation.

April 28, 2010

Director Maurier

PO Box 200701

Helena, MT 59620

RE: Emergency Closure for Elk and Deer hunting district 250

Dear Director Maurier,

My name is Scott Boulanger and I am an Outfitter from Darby that operates my Outfitting business in hunting district 250. The West Fork of the Bitterroot.

After reviewing the 2009/2010 post season flight surveys, and the wolf population reports, and the lion harvest results, and the 2009 Darby check station reports I am requesting you to issue an EMERGENCY CLOSURE for the 2010 Elk and Deer hunting season. (Copies of reports attached)

I am requesting the EMERGENCY CLOSURE for the following reasons………..

1. The elk population objective for unit 250 adopted by the Bitterroot Elk working group was approved at 2000 head. For the last 2 years we have been hovering around 764. That means we are 62% UNDER the objective! The TOTAL elk population for the entire Bitterroot Valley continues to decline and is down 21% in the past 4 years.

2. The adopted statewide elk management plan calls for a minimum of 10 bulls her hundred cows. Our 2010 flight surveys show that there are only 4 bulls per hundred cows. In fact in the entire hunting district there were only 6 adult bulls observed and 20 yearling bulls observed. That means we are going to have most of our cows being bred by immature bulls if they get bred at all.

3. The current data supplied by FWP wolf specialist Liz Bradley indicates that there are at least 52 wolves per thousand elk in unit 250. It is one of the highest wolf densities in the State. With that amount of wolves there are simply not enough elk and deer left for sport hunting.

4. The 2009 Mule deer survey indicate that there are only 3 bucks per hundred does in hunting district 250. FWP recognizes this fact by instituting a limited permit system but then turned around and issued 125 permits! Even more confusing to me is that in unit 270 across the river we have observed 34 bucks per hundred does yet we only issue 45 permits in that unit?

5. After reviewing the 2009 harvest results of the special limited Mountain Lion permits it reveals that the FWP only reached 40% of the desired harvest of Lions AGAIN. In fact the year before in 2008 there was only 1 lion harvested in the entire unit 250. Also in the previous 9 years the FWP protected ALL female Lions from being harvested. From 1999 through 2008 there was not one single female lion harvested. Again I feel like the abundance of predators has eliminated our prey base of mule deer and elk.

6. Also revealed in the flight surveys is the fact that we are having a serious problem with our elk calf recruitment. The 2010 surveys show that we have a ratio of 11 calves per hundred cows. The experts tell us it used to take 23-25 calves per hundred cows to MAINTAIN herd populations. That was BEFORE the introduction of the Gray Wolf. Modern Biologist tells us it now takes a minimum of 30 calves per hundred cows to maintain the herd populations.

7. Bears. Mike Thompson FWP Biologist told the Outfitters at the USFS meeting that the season structure we have had for bears over the last 20 years was designed to GROW the Bear population. Well, I believe that the plan worked and that the Bears did increase in population and they are also having a negative effect on the ungulate populations. FWP recognizes this to be true and this year implemented a season that lasts 2 weeks longer than in the past. It is my hope that we will harvest more bears this year as it is proven in multiple western states studies that Bears prey hard on elk calves during the first 2 weeks of an elk calves life.

8. Darby Check Station Results. In the 2009 the whitetail deer and mule deer harvest are down by nearly half. Hunters’ numbers have declined 17% with hunters not seeing the game they used to see with many negative comments about the wolves and more lion sightings while deer hunting.

I am troubled and saddened to have to make such a drastic request but I truly feel that this is in the best interest of the wildlife. I believe it is the charge of the FWP to be responsive and responsible public resource managers and this un-precedented action is required at this point in time. We simply cannot continue to keep things on the status quo and expect anything to change. It’s like doing the same thing over and over and expecting different results. I am on record with the elk working group all the way back in 2005 when we enjoyed a record population of elk, warning of what was coming if we did not do anything to control our predators and limit cow harvest. Almost every Bitterroot hunting district is under management objective and the same is true with the Bull to cow ratios. I understand that a 3 year study was approved but I also understand we are about $180,000 short of funding in the first year alone. We don’t need a study, we need predator control. I feel like it’s about time we put our personal and political agendas aside and start looking out for the wildlife!

Feel free to contact me anytime if you have any questions or would like to discuss this matter in detail.

Respectfully submitted.

Scott D. Boulanger

Owner

Enclosures

CC: Commissioners, Director, CAC Region 2, Elk working group, USFS, MOGA, RMEF, SFW,

French noted the MFWP’s policy for eradicating “emerging threats” practiced during the purposeful poisoning of the Blossom Lakes and Creek Fisheries in August 2009 near Thompson Falls, Montana as well as other locations in the state. To be consistent with the MFWP’s philosophy where the “emerging threat” of the brook trout was potentially harming the viability of the native endangered bull trout, French says the state must take a studied look at the current wolf issue here in Montana. The introduced wolf is roughly twice the size of the resident endangered wolf, and comes from a Northern wolf population that is far from endangered. “Montanans suspect they have been sold a lie. They are taking action into their own hands because their government has failed them while their game herds are disappearing before their eyes,” French exclaimed.

There are many subspecies of wolves in America. Wolf advocates have classified the many wolf subspecies into 5 groups: two of which are Canis lupus nubilus (CLN), considered the category for the small “native” Montana wolf – and Canis lupus occidentalis(CLO), a far northern subspecies category for the much larger wolf that was introduced into Montana over a decade ago. It is important to note that the CLN subspecies is considered threatened under the Endangered Species Act (ESA), whereas the CLO subspecies is not.

“Introduction of the CLO subspecies is not justified under the ESA,” states French, when recognizing that these wolves have a much harsher impact on the Montana environment and other native big game species than the CLN subspecies would have had. Of the greatest immediate concern is the impact of this larger more aggressive subspecies on game herds. “How can we protect this subspecies under the ESA, when it is the smaller native CLN subspecies that has qualified for threatened species protection in our state?” French asks.

In addition to the Endangered Species Act concerns, there has emerged a potentially significant public health hazard due to the parasite, E.granulosa, enhanced in our environment through introduction of the non-native wolf subspecies. This foreign parasite can potentially have incalculable negative economic impact in addition to a direct threat to domestic herd animals, pets and human health. This parasite has the potential to infect all persons involved in the handling and consumption of domestic and game animals. “Is Montana’s ranching industry prepared to weather this potentially huge economic threat? In addition, are we willing to have our people and pets threatened by attack when going out alone? asks French, a rancher, outdoorsman and medical scientist.

As the invasive brook trout was an “emerging threat” to the threatened bull trout and decisive action was taken by MFWP to remove the “emerging threat”, decisive action must be taken by MFWP against the invasive CLO wolf subspecies in order to protect the ESA threatened CLN wolf subspecies. The declining herds, domestic threats and the parasite problem seal the urgency of this decisive action.

A public meeting on this subject called by Senator Hinkle, will be held at the Thompson Falls gymnasium on 3/29/10 from 6-8 PM. Regional wolf experts will take questions.

French asks any concerned citizen to contact Joe Maurier, Director of MFWP, through Phone: 406-444-9089 ext. 2535; Email: jmaurie@mt.gov; or Fax: 406-444-4952.
Express your thoughts and request the following actions be taken immediately:
1. Immediate public hearing on this issue called within 2 weeks.
2. Open season for all legal hunters.
3. State sponsored aggressive helicopter hunting.
4. State sponsored trapping.

Once the immediate threat of this non-native wolf species is significantly reduced, Montana must retain complete wolf management responsibility as authorized under the Tenth Amendment of the US Constitution.

Industry and gun culture insiders report that ATK head Mark DeYoung is one of us, a gun owner and sportsman. Great. However, to refurbish its image and get beyond this “Zumbo moment,” ATK will need to do more than simply post a statement announcing that it now fully supports a congressional ban on brass destruction enacted last year.

Two suggestions for ATK:

1) ATK could release a list of the military installations with which it has had Memoranda of Understanding to take and destroy fired brass, AND a list of the installations for which it has now canceled such MOUs; and

2) ATK could identify those employees responsible for both hatching and approving the ATK-sponsored program to destroy military brass, the people who approved pitching this program to military installations with the argument that allowing brass to be sold to the public somehow fosters domestic terrorism. Having identified those responsible, ATK could reassign those personnel to a commission-only job of hauling excess Lake City ammunition around the U.S. and selling that ammo to the public at shooting ranges and gun shows.

These two steps would go a long way towards reassuring the public that ATK is indeed a good corporate citizen and is actively complying with declared congressional intent.

Even if ATK is willing to go the extra mile to get beyond its “Zumbo moment,” that will still leave a pervasive problem in the U.S. military of non-compliance with the congressional prohibition of brass destruction. That problem will still need to be addressed, probably with further congressional action.

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

Editor’s Note: The following file was written and assembled by Lynn M Stuter, March 24, 2010. The photographs contained in this file are used by permission and the publication of this file on this web site was granted by the author. I have made only a portion of the entire file available here. The entire piece is contained in a pdf including the photographs. I encourage all readers to read the facts and view the photographs.

The pictures you will see in this notebook have been taken in the Lolo Zone in Idaho, Units 10 and 12, except for the first section of pictures of the 6 x 8 bull elk, which were taken 30 miles outside Libby, Montana in the Winter of 2008. None of the pictures are easy to look at; they are actually quite gruesome, quite horrible, but tell a tale of what deer and elk have endured at the hand of wolves in Idaho and Montana.

The people who took the pictures you are about to see of the slaughter in the Lolo Zone of Idaho, showed them to Idaho Fish and Game officials who refused to listen, refused to acknowledge what was obviously rapidly becoming a crisis situation with regard to the health of the Lolo Zone elk herds.

Had Idaho Fish and Game officials been traveling the Lolo Zone as these sportsman were; had they been checking on the health of the herds, as they should have been; they could not have helped but see what these sportsmen saw, they could not have helped but be as alarmed as the sportsmen were and are.

Following are the approximate number of elk in Lolo Zone, Units 10 and 12 —1994 versus 2010. These numbers tell a tale of an already declining herd on which wolves were set and allowed to prey, uncontrolled.

As you look at the following pictures, it is obvious that these elk were not hard to find, that there were many more, just like them, scattered throughout the Lolo Zone, Units 10 and 12; that these are but a representative sampling of the damage that has been done by wolves to the elk herds in this zone.

It is inconceivable, looking at these pictures, that anyone could believe that wolves only prey on the sick, the old, the injured. It is inconceivable that a political agenda could so blind people to the reality of what wolves, in uncontrolled numbers, do to ungulate herds, that they could stand by and watch this happen with no compunction to stop it.

Following are the words of Steve Nadeau, Idaho Fish and Game large predator manager. On May 22, 2008, Nadeau was given the employee of the year award for outstanding management/leadership and coordination by IDFG director Cal Groen.

To finish reading this information and to view the photographs, click this link to view a pdf.

The cure that was arranged by Montana Senators Baucus and Tester to fix the intended military destruction of once-fired cartridge brass last year appears to be suffering from a fatal end-run.

Interested persons will remember that a year ago, helpful intervention by Montana’s senators persuaded the Department of Defense to rescind a fresh DoD directive to military installation commanders requiring them to destroy once-fired brass, prior to selling it at auction into the civilian marketplace for ammunition reloading and other purposes.

An end-run is being done around the rescinding order through quiet and sweetheart side deals with installation commanders that is being aggressively promoted by ATK.

Some characters must be introduced to explain this story. ATK/Alliant Techsystems is the defense contractor that currently has the contract to operate the Army’s huge Lake City Arsenal, the last government-owned facility in the U.S. for production of small arms military ammunition. While other contracts to operate Lake City have been cost-plus, the contract ATK arranged allows ATK to retain profits of operation. Although government/private partnerships always seem to be strange creatures, the nature of the government/ATK partnership may be stranger than most.

Government Liquidation is another private entity that has an exclusive government franchise to sell surplus military equipment, from all military installations nationwide, to all bidders.

Until recently, most used cartridge brass sales were put up for public bid through Government Liquidations, bids available to scrap metal purchasers, foundries processing brass, and specialized cartridge brass processors that reconditioned millions of surplus cartridge brass for sale to commercial reloaders of civilian ammunition, and to civilians for ammunition loading. The steady supply of reloadable brass from military sources has been a sizable and essential component of the currently stressed ammunition market in the U.S.

Although the private Government Liquidations retains a fee for the auction services it provides, the bulk of income from Government Liquidations’ sales of surplus military property is directed into the U.S. Treasury, to be reallocated and appropriated by Congress, as needed.

In a recent turn, ATK has been aggressively promoting sweetheart side deals with military installation commanders for those commanders to sell used cartridge brass directly to ATK (which ATK then renders unsuitable for reloading), the income from which is deposited, NOT into the U.S. Treasury for reallocation by Congress, but into accounts controlled by installation commanders for installation operation.

ATK even provides portable equipment to demil tons of cartridge cases at the military installations, destroying the brass for reloading purposes. Because the destroyed cartridge case brass is not suitable for reloading, it cannot command a price driven by auction for the highest-value use of reloading. Military installation commanders sell the Alliant-destroyed brass to ATK at a private, non-auction, special price. Commanders are willing to accept the reduced price because the sale proceeds go to the commanders’ discretionary accounts and not back to the U.S. Treasury via Government Liquidations.

Quote from ATK program sales literature:

“Payment is made to Fort Irwin not DRMO [now Government Liquidations], so Fort Irwin utilizes the money that is generated from the Recycle project for other recycling efforts.”

ATK, then, ships this destroyed cartridge brass to the foundries from which ATK gets new stock for manufacturing new cartridge cases, offsetting in significant part what ATK would otherwise pay the foundries, and thereby increasing ATK’s profit from operating the Lake City Arsenal.

Government Liquidations suffers a substantial decrease in business since fired military brass has long been a most lucrative product they’ve traditionally handled.

Meanwhile, the big losers are the U.S. Treasury (U.S. taxpayers), and civilian ammunition consumers who will see higher prices and more shortages in the ammunition marketplace from this scheme. U.S. gun owners are effectively being taxed by this scheme to provide greater profits for ATK.

There is one additional motive at work here. In part, this juicy scheme is being sold to military installation commanders with the reasoning that “We cannot allow this reloaded ammunition to fall into the hands of militias.” The sell-direct-to-ATK idea is being sold to installation commanders as a way to deprive imagined U.S. civilian enemies of firepower.

Quotes from ATK program sales literature:

“Currently handling brass scrap for ATK Lake City — for sole purpose of recycling material and preventing any reloading of spent cases by the public with military grade brass.”

“Keeps Military Grade Brass from being re-loaded by unauthorized users.”

“To PREVENT anyone from using your scrap ammunition components for non-military purposes.” (Emphasis in the original)

“Assurability for the [military] installation, that no one can use this cartridge against law enforcement or our military personnel, by reloading the case.”

It’s time to cure this problem finally with congressional action. The Montana congressional delegation is spooling up to address this issue. Senators and Representatives from other states need to join the Montana delegation in fixing this problem finally with congressional direction to DoD to require that all expended military brass of civilian-useable calibers generated domestically goes through the public auction process. This will benefit the U.S. Treasury, America’s gun owners, and the adequacy of the ammunition marketplace.