New West Feature of the Week

In Montana, A Clash of Populism and Property Rights


By Hal Herring, 1-20-07

 
  Photo courtesy US Fish & Wildlife Service.

Bernie Nowack, a Wisconsin logging contractor turned real estate investor, came to Montana ten years ago to hunt elk and fell in love with the place. He bought a ranch near Philipsburg, and now owns, by his own estimate, some $9 million to $10 million worth of land in the state.

But his hunting dreams have run into a snag, one that infuriates many of the wealthy out-of-state landowners who are transforming the rural landscape of the Big Sky state: even though he owns a lot of property, he has to enter a lottery for a non-resident hunting license if he wants to pursue game on his land.

“I’ve invested all this money, and a lot of time, and I can’t even get a tag to hunt on my land - not even a deer tag," Nowack said, speaking from a cell phone in Eagle River, Wisconsin, where he had just returned after hunting Montana’s big game season. "I feel like I pay the same land taxes as any ranch owner who lives there, and all I’m asking is to be able to hunt on my own land. It just doesn’t make sense to me.”

Nowack is more baffled than angry. “It’s only my opinion, you know. But I feel like the state is losing out because of this. As a property owner, I’m losing out. I wish they would take a new look at it.”

Nowack is hardly alone in his criticism. James Cox Kennedy, the CEO of Atlanta-based Cox Enterprises and owner of large properties in the Ruby and Smith River valleys, cited the issue as a major concern in an interview with New West last year. Tom Seibel, who has drawn praise for funding the Montana Meth Project and otherwise "giving back" to his adopted state, raised the hunting issue in a recent talk about Montana's relationship with wealthy newcomers.

Yet these complaints, though understandable on their face, run headlong into a major philosophical divide. One the one hand, many Montanans are more than sympathetic to protection of private property rights, and the notion that people should be allowed to do as they like on their own land. On the other hand, property rights in this case conflicts with the legal concept of wildlife as a public resource – and with the widespread desire in Montana, supported from Governor Schweitzer on down, to preserve public access to state's remarkable natural resources.

Currently Montana issues only 11,500 nonresident hunting tags every year, through a lottery system, with another 5,500 reserved for nonresidents who hunt with an outfitter. It's quite possible to own a ranch in the state and, if you don't live there full-time, find yourself unable to get a license to hunt deer or elk or antelope on it, at least during some years. Even if you get the tag, you may be limited to shooting one deer on your property, even if you own 50,000 acres that's crowded with whitetails.

Non-resident property owners point out that they pay taxes too (though they don't pay state income tax, which in sales-tax-free-Montana is a significant part of the tax picture).

But a continued boom in Montana hunting land sales is going to force the issue of nonresident tags, as well as a host of traditional game management questions. For one thing, according to game wardens like Steve Vinnedge of Great Falls, the current system opens the door for the abuse of the outfitter reserved tags. “If you’ve got the millions to buy a ranch in the first place, you’ve got the money to hire an outfitter and get one of the reserved tags. That is going to be a problem, eventually,” Vinnedge explained.

Fellow game warden Brian Golie of Cascade, Montana, agrees that the nonresident landowner issue is a problem that will be tackled fairly soon, whether the state wants to or not. “My region is pretty unique,” Golie said, “we have several nonresident landowners who have worked so closely with us in every way. We have Tom Seibel, for instance who has sponsored the Montana Meth Project, saving I don’t know how many lives, he’s spent his money from Wolf Creek to Craig and all the way to Great Falls, hired local guys to work, and provided a lot of public access to his property that wasn’t there before, and he still can’t always get a tag to hunt his own property? A lot of our laws have not kept up with the times here in Montana.”

But there is good reason for the reluctance to change, Golie said. “Seibel and some of our other nonresidents around here are exceptions to the rule, I know. The people of Montana have said pretty clearly that they don’t want to give tags to landowners who buy property just to lock it away from any public access. We don’t really have an incentive to get resident landowners to work with us, but with the nonresidents, we have the offer of the tags if they will put some of their land in Block Management. That’s the only leverage we have.”

Block Management is a cooperative agreement between private landowners and the Montana Department of Fish,Wildlife,and Parks (MDFWP) to allow public hunting access. Landowners are paid according to how many hunters use their property, with the funds coming from license sales and various fees, including nonresident upland bird licenses and tags sold to nonresidents for outfiitter-supported big game hunts. In 2006, hunters could access 8.5 million acres of private land, owned by 1250 landowners that were enrolled in the program.

While Block Management was really designed with agricultural landowners in mind, it also provides a strong incentive for non-resident amenity ranch owners to allow public access: a guaranteed big game license. Still, few such ranch owners are interested in opening their lands to the public, leaving a host of wildlife management issues on the table. For example, big game animals that have been protected (game managers use the word “harbored") on private lands sometimes roam to destroy crops and range on traditional working ranches. And disease is always a threat where there is overcrowding of wildlife.

The dilemma is based in the American legal concept of wildlife as a public resource, that must by necessity live on private lands. So far, in the West, there has been enough public access, and enough space, that the issue has not been critical. Also, as long as land was primarily used for producing commodities, it’s wildlife value was secondary, as was its value as a hunting ground.

But when the primary reason for purchasing a ranch is for hunting and wildlife, the potential for conflict and negative effects rises, even as the privately-owned wildlife habitat is vastly improved. As public access to hunting declines, license sales fall, which means that there is less and less money to deal with those conflicts, and less money for the state to purchase critical wildlife habitat that may be under threat of development, or to pay for programs like Block Management. It is a domino effect leading back to the fact that wildlife is a public resource, and cannot truly be maintained in the modern west unless there is a great deal of public interest in doing so. And public interest, in trun, can be maintained only if there is access.

“Montana is such a private property state, and a private rights state,” said Brian Golie. “And the question is how do you honor that, and also honor the public, which has done so much to restore all this wildlife. In my opinion, it’s a game warden’s job to do everything legal to maintain and increase public access to the wildlife resource. We have the wiggle room and the flexibility to to solve these problems, and I think we will.” Golie added, “We’re arguing here over things that other states lost fifty years ago. We owe it to ourselves to figure it out.”

The Schweitzer administration, at least for now, seems determined to maintain Montana's populist approach. "From time to time we get these proposals to change over to programs like (Colorado's) Ranching for Wildlife, or things like that," said Mike Volesky, Schweitzer's natural resource policy adviser. "But we just see those programs as further privatizing wildllife, and we don't want that here. Montana's wildlife has always been in the public domain, and we've always had a strong property rights ethic, and I think we've struck a good balance there... Do I think this issue is dead? No, I don't. But I think we've got it worked out for now.

"I guess we see this like we do the stream access law. If you want to buy a big ranch with a river or stream running through it, and then you want to close that river off for your own exclisive use, then don't buy in Montana."

Jeff Buerger is the grandson of Colorado ranchers, an avid hunter, and an agent for Hall and Hall, selling properties in Colorado and New Mexico. Buerger takes issue with Montana’s wildlife management policies, at least as they apply to non-resident landowners who buy a property for hunting. “I would rank Montana last in recognizing the right of landowners in managing wildlife. In New Mexico, the game and fish department allows you to renogotiate permits to take more bulls or cows (elk) off of your land. While you have to go through the draw (a lottery system) to get tags in other states, in New Mexico, if you want to hunt mountain lion or bear on your land you can go in and get those tags. It is geared toward landowners, and Montana is really geared toward the public. In Montana, you have to go though all kinds of processes just to be able to hunt your own property.”

Thor Sichveland, a Cabela’s Trophy Properties affiliate from Phillipsburg, Montana, also says he hopes that there can be some solution to the problem. “We are going great guns here with Cabela’s,” he said, “and its hard to explain to a guy that’s bought 1,000 acres, is feeding herds of elk and deer all year long on his ranch, that he has to go into the lottery to get a tag to hunt them.” Sichveland said that he is sure that some buyers who research the situation decide to look for property in Oregon or New Mexico, which allow landowners to buy tags. But, he said, Montana still has a mystique that attracts people looking for wild country and ranchlands. “We show them property in Idaho, and it just won’t do. They want a piece of Montana, want to say that they own a ranch here.”

Even those who are enjoying the powerful upsurge in business express their concerns that one day the American tradition of hunting and the outdoors will be mostly reserved for the wealthy. “I come from a small town in Kansas,” said Dax Hayden, a Cabela's affiliate selling recreational ranches in Colorado, “where we always had a place to hunt. I would hate to think that someday I’ll have to buy a place just so my son will have a place to go hunting. But I don’t know what anybody can do about that.”

Greg Schmeenk, who is selling property as a Cabela’s affiliate around his home country in South Dakota’s Black Hills, expressed a similar concern. “Sometimes I wonder where I’m going to go, too.”




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