# High court rules against state restitution for game farmers



## Bob Kellam (Apr 8, 2004)

High court rules against state restitution for game farmers

By Associated Press - 01/02/09

Game-farm owners who lost money because a voter-approved initiative curbed their businesses do not have a constitutional right to state compensation, a narrowly divided Montana Supreme Court ruled Wednesday.

In a 4-3 opinion upholding a District Court decision, the justices ruled against game-farm operators who said their elk businesses were pummeled by voters' 2000 passage of Initiative 143, a measure to phase out the farms that raised wildlife, typically elk. The initiative banned the shooting of captive game-farm animals for a fee, the licensing of new game farms, the expansion of existing game farms or the transfer of licenses.

As leading proponents of the initiative, some of Montana's sportsmen said elk raised on farms could escape their confines and jeopardize the genetic purity of wild Rocky Mountain elk.

Ranchers who turned to the Supreme Court after the lower court found compensation unwarranted included Kim Kafka. He said he entered the elk business to diversify his Hill County grain and cattle operation, and to strengthen opportunities for his children to remain on the family ranch. Kafka and wife Cindy invested about $1 million in the elk business as they acquired animals, built fences and marketed the fee shooting of elk, according to documents filed in court.

The Kafkas contended that if I-143 was intended for the good of Montana, then its costs should be carried by Montanans and not by individual elk farmers.

An attorney for the state acknowledged damage to the Kafkas' business, but said the case was analyzed properly in District Court and the decision reached there should stand. The state did not seize elk, and their owners had opportunities to find other markets for them, attorney Chris Tweeten said when the Supreme Court heard arguments in 2006. He noted that tavern owners hurt by alcohol restrictions during Prohibition were not entitled to compensation for the impact of a law passed for the public good.

In dissenting from the opinion by the Supreme Court majority, Justice James Nelson wrote that ''I-143 was designed to shut down an industry that the state had facilitated, and even encouraged, for 83 years and to place the entire economic burden of doing so on the participants in that industry. It is difficult to see any fairness or justice in this bait and switch, particularly since the initiative was promoted as addressing legitimate public concerns shared not only by the sportsmen, but by the public has a whole.''

Nelson was joined in the dissent by Justice Jim Rice and by District Judge Nels Swandal, sitting for Justice Brian Morris.

Justice Patricia Cotter wrote for the Supreme Court majority. Chief Justice Karla Gray, Justice William Leaphart and District Judge Deborah Kim Christopher, sitting for Justice John Warner, concurred.


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## blhunter3 (May 5, 2007)

Not good.


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## HUNTNFISHND (Mar 16, 2004)

blhunter3 said:


> Not good.


Why?

I think it is the correct ruling. Nobody forced these people to start raising elk!


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## barebackjack (Sep 5, 2006)

HUNTNFISHND said:


> blhunter3 said:
> 
> 
> > Not good.
> ...


No, nobody forced them, but diversification of operations was encouraged.

Thank god we dont live in MT boys with their yuppies in the mountains.

I agree with what was stated, if this regulation is to the "betterment of Montana", than Montana should compensate.

I get a kick out them comparing it to prohibition and bar owners not being compensated. Real smart, compare it to a FAILED regulation.


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