Open Letter Regarding Montana Proposed Trapping Ban Initiative Unconstitutionality

Missoula, MT –-(Ammoland.com)- Jon Bennion; Montana Department of Justice; Dear Mr. Bennion,

The purpose of this communication is to provide comment concerning the proposed initiative to ban trapping on public lands.

Specifically, we believe that major parts of this proposed initiative are in conflict with the Montana Constitution.  We urge that this proposal be returned to proponents with instructions from your office to correct those conflicts.

History

In 1992, the Montana Shooting Sports Association (MSSA) proposed a constitutional initiative, specifically CI-62, to put protection for hunting into the Montana Constitution.  I, personally, wrote the language of CI-62.  The operative language of CI-62 was, “The people of the state retain the right to hunt game animals. This right is vested in the individual citizen and shall forever remain inviolate.”  CI-62 failed to gain sufficient signatures to gain ballot status, largely because of the organized opposition to signature-gathering by the Montana Department of Fish, Wildlife and Parks.

In 2003, MSSA sought to achieve the same result via a legislative referendum.  I solicited Rep. Joe Balyeat to submit a bill draft request to the Legislative Services Division for this purpose.  I provided Rep. Balyeat with language revised from CI-62, which he submitted to the LSD for bill drafting.

The language I provided to Rep. Balyeat was:

”     NEW SECTION.  Section 1.  Article II of The Constitution of the State of Montana is amended by adding a new section 36 that reads:

”     Section 36.  Preservation of harvest heritage. (1) The harvest of wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state. The heritage does not create a right of trespass on private property and is subject to regulation by law.

”     (2) The state shall manage fish and wildlife to preserve opportunities for the harvest of wild fish and wild game animals by the citizens of the state.”

There are two important issues about the language submitted in 2003.  First, I intended that this constitutional protection be included in Article II of the Montana Constitution, the Declaration of Rights.  Mr. Greg Petesch, the chief legal officer for the LSD preferred placing this new language into Article IX, but assured us that the language would have the same effect there as if it had been incorporated into Article II.

Second, I very deliberately changed the language from CI-62 to “harvest of wild fish and wild game animals” specifically to include fishing and trapping.  One of the complaints MSSA had received about the language of CI-62 was from the Montana Trappers Association that the language of CI-62 did not protect trapping.  I thought that to be a valid criticism and revised the language submitted to the LSD in 2003, again specifically to sweep trapping into the proposed constitutional protection.

This bill draft was introduced into the 2003 legislative session by Rep. Balyeat as House Bill 306.

The introduced language read as:

”     NEW SECTION.  Section 1.  Article IX of The Constitution of the State of Montana is amended by adding a new section 6 that reads:

”     Section 6.  Preservation of harvest heritage. (1) The harvest of wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state, does not create a right to unauthorized trespass on private property or diminution of other private rights, and, for state residents, may be abridged only by general regulation necessary to further a compelling state interest.

”     (2) The state shall manage publicly owned fish and wildlife to preserve opportunities for the harvest of wild fish and wild game animals by the citizens of the state.”

HB 306 passed the House by a vote of 81-17 and the Senate by a vote of 49-1, sufficient majorities for it to be referred to the ballot as a constitutional referendum in the general election of 2004, C-41.  The intent for the language of HB 306 to also protect trapping was definitely a part of the discussion of HB 306 in legislative committee and floor sessions.

I recall that C-41 was approved at the ballot in 2004 by the highest percentage of the Montana electorate of any constitutional change ever made in Montana’s history.  As MSSA campaigned among the public for the passage of C-41, we certainly portrayed part of the intent for this constitutional change as needed to protect trapping.  I believe that to protect trapping is one of the reasons such a substantial majority of the electors voting on the measure voted for C-41.

The language finally passed in HB 306, subsequently approved at the 2004 General Election ballot by the people of Montana, and now in the Montana Constitution at Article IX, Section 7, is:

” Preservation of harvest heritage. The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.”

Conclusion

As demonstrated above, it was very clearly my intent in drafting the language submitted to the LSD that trapping be included within the protection of C-41.  It was the intent of the Legislature to protect trapping with HB 306.  And, it was the intent of the people of Montana to give trapping constitutional protection with C-41.

Because Article IX, Section 7 of the Montana Constitution clearly protects trapping of game animals, the proposed initiative must be revised substantially in order to pass constitutional muster, if that can be done at all, before it is allowed to proceed.

Sincerely,

About Montana Shooting Sports Association:MSSA is the primary political advocate for Montana gun owners. Visit: www.mtssa.org