Montana Shooting Sports Association, Inc.
P.O. Box 4924
Missoula, Montana 59806
406-549-1252 - mssa@mtssa.org
Via email
September 17, 2015
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."
Finally, the 2015 session of the Montana Legislature clarified
further that trapping was and is intended to fit under the umbrella
of protection afforded by the Montana Constitution with the
enactment of House Bill 212, which became law on March 23, 2015.
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,
--
Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.mtpublish.com