Judge denies farms motion, but the battle continues
By Tim Leeds
The Diamond K Ranch can't go back to business as usual for now perhaps requiring the sale of the its assets and possibly the sale of the entire elk ranch.
District Judge John Warner ruled against Kim and Cindy Kafka's motion to grant a temporary injunction allowing them to resume their business of allowing clients to shoot elk for a fee until their lawsuit against the Montana Department of Fish, Wildlife and Parks is resolved. The Kafkas filed the suit in April. The suit includes claims that Initiative 143, passed by narrow margin in the 2000 state elections, is unconstitutional and that FWP is unlawfully enforcing the initiative.
Montana Sportsmen for I-143, a group supporting the initiative, and the Montana Wildlife Federation have intervened for FWP in the case.
Warner said he ruled against the injunction because he "could not see the likelihood of success in this matter" on several issues the Kafkas raised.
However, Warner said that because, in his opinion, the Kafkas could be awarded monetary damages, he was taking a motion to dismiss some of the charges, made by the defendants, under advisement.
The motion for the injunction and the motion to dismiss charges were "inextricably intertwined," Warner said.
Kim Kafka testified that since he started looking at expanding his farm and ranch into alternative operations his family has invested more than $1 million in their own cash, loans, time and work. He worked with several state agencies to get approval for his operation, he said.
"I have letters from the state saying they were committed to to making me a viable operation," Kafka said.
The shooting of elk on his ranch started in the fall of 1999, he said. The business grew until I-143 passed in November 2000, and his elk business has stopped since, he said.
"It's basically eliminated my entire business," he said.
Charles Celenia, president of Independence Bank, said his bank has loaned money to the Kafkas for their elk operation. I-143's elimination of their elk-farm income, about 30 percent of their total income, has caused problems with the Kafkas being able to make their payments, he said.
Celenia said his bank has restructured the loans about as much as it can, and if the Kafkas aren't able to start making payments soon, they will have to start liquidating their assets. That will further reduce their ability to make payments, possibly starting a cycle that could cause the loss of the ranch, Celenia said.
The problem will come to a head unless the Kafkas find a way to replace their elk-farm income within the next few months, Celenia said, and the family has invested so much money in the operation it is his opinion that they couldn't convert back to a completely traditional farming and ranching operation.
Tim Feldner, manager of FWP's committee overseeing permitting, testified that a recent court decision allows the Kafka's to sell their elk for shooting.
District Judge David Cybulski of Wolf Point ruled that some elk farmers can legally sell their animals to clients, then let the clients shoot the elk, Feldner said. He said in an interview that Cybulski's ruling, made on July 15, would allow the Kafka's to do the same.
The Kafkas' lawyers at the trial, Chris Young of Havre and John Bloomquist of Helena, argued that I-143 violates the Montana and U.S. constitutions in several areas, including violating the Kafkas' right to own property, and retroactively reverses a license granted by the state.
The defendant's and interveners' lawyers, Chris Tweeten, Montana chief deputy attorney general, and Beth Brennan of Missoula, argued that the constitutional arguments are not correct. One of their arguments is that both constitutions guarantee the right to own property, but not how it can be used, they said.
Arguments that the prohibition of a process already licensed is illegal are also false, Tweeten and Brennan said. The prohibition of game-farm elk shooting is simply a regulation of the industry, as other laws regulate other industries, they said.
Although Warner ruled against the Kafkas' motion, he did question that statement. I-143 doesn't just change the regulations about game-farm shooting, it prohibits it.
"That's not a change. He's done," Warner said.