By Ron VandenBoom
Game farm owners Kim and Cindy Kafka will be in federal court Friday in Missoula to hear arguments before U.S. District Judge Don Molloy that they hope will lead to a preliminary injunction that could save their business.
"We'll be there," said Kim Kafka. "I wouldn't miss it for the world."
Pat and Connie Corbett of Sidney and the Kafkas filed for an injunction in early June that would block enforcement of Initiative 143. The initiative, approved by Montana voters in November by a margin of 51 to 49 percent, bans elk shooting preserves in Montana and prohibits the transfer of game farm licenses. The initiative also prohibits the issuing of any new game farm licenses.
The Kafkas want the injunction so they can continue to operate their game farm and shooting preserve, located 16 miles south of Havre, until their lawsuit contesting the constitutionality of the initiative is resolved.
The suit, file by the Kafkas shortly after Initiative 143 passed, asks for up to $100 million in damages and claims the new law violates equal protection rights, the right to conduct interstate commerce, due process rights, and inalienable rights to pursue life's basic necessities. The Kafkas also maintain the law violates private property rights by denying elk farmers the right to acquire, possess and protect property.
"This has always been a private property rights issue," Kim Kafka said.
Kafka said passage of the initiative could cost the state of Montana as much as $50 million and the community of Havre alone as much as $3 million.
The initiative was sponsored by the Montana Wildlife Federation and its offshoot group, Montanans Against the Domestication and Commercialization of Wildlife. MADCOW's campaign focused on a possible risk to wild elk populations from chronic wasting disease, a 100 percent fatal disease that destroys the brain stem of elk and deer. They also fear possible genetic pollution from elk escaping from game farms and entering wild populations and the degradation of what they call "Montana's fair chase hunting heritage."
Kafka claims there is no scientific evidence to support the chronic wasting disease argument, a view shared by Dr. Elizabeth Williams, a researcher with the Wyoming State Veterinary Laboratory and the first person to characterize the disease in 1980, and by Dr. Mike Miller, a veterinarian with the Colorado Division of Wildlife.
"Plain and simple, the I-143 proponents successfully misled the Montana voters and stole my business," Kafka said. "I don't think it's fair to take a person's legal business and not pay for it."
The Montana Bowhunters Association, the Ravalli County Fish and Wildlife Association, Sportsmen for Initiative 143 and the Montana Wildlife Federation have recently asked the court that they be allowed to fight the game farm industry's challenge to I-143, claiming they have a vested interest in the outcome of the lawsuit and should be able to participate.
Kafka said he is optimistic he will prevail Friday and get an injunction, but acknowledges the decision is in the hands of the judge.
"If truth and science mean anything and if he looks at the issue strictly from a constitutional standpoint, we'll win," Kafka said.