By Tim Leeds/Havre Daily Newsemail@example.com
A state District Court judge ruled Wednesday that the state does not have to pay a Havre game farm owner for lost income and decreased property value that may have resulted from an initiative banning fee shooting on game farms in Montana.
Judge David Rice issued a ruling in a lawsuit Kim and Cindy Kafka had filed against the state and the Montana Department of Fish, Wildlife and Parks.
The ruling says the plaintiffs had entered a contentious and highly regulated industry, and should have anticipated the chance that state regulations could harm or eliminate the success of their business. The initiative did not actually take any of the plaintiffs' property, so they cannot be compensated for it, he said.
" the uncontested evidence in this case shows that the Plaintiffs' game farm lands were not taken and they retain significant economic value," Rice said in the decision.
Kim Kafka said this morning that the ruling could impact anyone with a business in the state.
"It's a pretty interesting thing that the state can regulate a business right into bankruptcy," he said. "All a business license is is a worthless piece of paper."
Kafka said he has not yet decided whether to appeal the decision.
After the suit was filed, game farm owners Jim and Barb Bouma of Choteau and Jim and Myra Bridgewater of Townsend joined as plaintiffs.
Barb Bouma on Wednesday declined to comment, saying she and her husband want to read the decision and discuss it with their lawyer first.
The Bridgewaters could not be reached for comment.
State Assistant Attorney General Chris Tweeten said this morning that the ruling was expected.
"We feel quite strongly that the initiative is not a taking in a constitutional sense," he said.
The Montana Wildlife Federation and Sportsmen for I-143 intervened for FWP and the state in the case.
Stan Frazier, who co-wrote the initiative for Sportsmen for I-143, said the judge's decision is correct.
"I'm pleased that the judge has come to this decision and it's long overdue," he said.
Frasier said the initiative's authors carefully researched the issue of takings.
"We were, I thought, careful to avoid that," he said.
Montana voters narrowly passed Initiative 143 in November 2000, with a vote of 51 percent to 49 percent. The initiative banned fee shooting of game farm animals, licensing of new game farms and expansion or transfer of the licenses of existing game farms.
The Kafkas applied for a license to raise elk in 1996 and for a license to operate a fee-shooting business in 1998. They filed the lawsuit in 2002. The suit claimed the state had violated their constitutional rights to own property and to due process, and had reduced the value of their property without just compensation.
The Kafkas also were among the parties who filed a federal lawsuit in 2001 on behalf of the game farm industry. That lawsuit was later dismissed at the request of the game farm operators. The parties had decided "the federal lawsuit would have been a protracted and costly undertaking," a spokesman for the group said in 2001.
The Kafkas requested in their 2002 lawsuit that they be allowed to continue their business, including fee shooting, while the lawsuit was pending.
Judge John Warner, who was later appointed to the state Supreme Court, ruled in 2002 against that request. He later ruled that the initiative was not unconstitutional, but refused to dismiss the case as requested by FWP because he thought monetary damages could still be awarded.
Rice ruled that loss of potential future profits does not justify damages against the state when it acts in a valid way to exercise the state's regulatory role. Enforcement of I-143 is a valid exercise of state's police power, he said.
Rice noted that although the elk cannot be sold to fee-shooting operations in Montana, a market for the animals exists outside of the state.