Allege Commission Violated Constitutional Rights and Procedures
Livingston, Montana – Today four sportsmen organizations and one rancher sued the Montana Fish, Wildlife & Parks Commission (“FWP” or “Commission”) in state district court to challenge the Commission’s decision on Dec. 10, 2012 to close parts of Park County, Montana to wolf hunting and trapping. The lawsuit alleges the Commission closed wolf hunting without giving notice to the public in advance of the hearing, which violated the Montana Constitution and the Montana Administrative Procedure Act.
The Plaintiffs are Citizens for Balanced Use; Big Game Forever, LLC; the Montana Outfitters and Guides Association; Montana Sportsmen for Fish and Wildlife; and Alan Redfield. Redfield is a rancher in southern Park County and newly-elected member of the Montana House of Representatives.
The FWP Commission notified the public that it would hear an informational update on the 2012 wolf hunting season harvest at its Dec. 10 meeting. It provided multiple pages of agenda items on its web site and sent out a press release, all stating the wolf agenda item would be informational only. At the Dec. 10 meeting, the Commission acted to close two areas of Park County to wolf trapping and hunting for the duration of the 2012-2013
At the meeting, two members of the Commission questioned the action because the Commission had not notified the public that it would be taking action affecting the wolf season. Several members of the public commented to the Commission that it was not following the required public notice procedures.
The Plaintiff Sportsmen Groups have been involved in many wildlife issues and seek the opportunity to testify or submit comments to the Commission about changing the wolf season. They have asked the state district court to order a Temporary Restraining Order (“TRO”) to enjoin the wolf season closure until the Commission follows the notice laws and gives the public a chance to speak on the issue.
Excerpt from the Complaint with the applicable
Right of Participation: The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law. Mont. Const. Art. II, Sec. 8
Right to Know: No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure. Mont. Const. Art. II, Sec. 9
The Montana Administrative Procedure Act (“MAPA”), beginning at Mont. Code Ann. § 2-3-101, requires the people of Montana should be “afforded reasonable opportunity to participate in the operation of governmental agencies prior to the final decision of the agency.”
FWP has adopted the Attorney General’s model procedural rules implementing MAPA. A.R.M. § 12.2.101(1). FWP has adopted a policy supporting maximum public participation in its decisions:
Participation of the public is to be provided for, encouraged, and assisted to the fullest extent practicable, consistent with other requirements of state law and the rights and requirements of personal privacy…The intent of these regulations is to foster a spirit of openness and a sense of mutual trust and understanding between the public and the department in efforts to maintain and enhance Montana wildlife resources and outdoor recreation opportunities.
A.R.M. § 12.2.301(1)(emphasis added).
Notice of a proposed agency action must be specifically noticed on the agenda for the applicable meeting. “[T]he agency may not take action on any matter discussed unless specific notice of that matter is included on an agenda and public comment has been allowed on that matter.” Mont. Code Ann. § 2-3-103(1).
In order to comply with Montana’s Constitutional requirement to ensure citizens’ right of participation and right to know, an agency must hold a proceeding in accordance with MAPA, Mont. Code Ann. § 2-3-104(2), and must provide appropriate notice in advance of a hearing, Mont. Code Ann. § 2-3-104(3).
MAPA requires agencies to provide a method and reasonable opportunity for interested persons “to submit data, views, or arguments, orally or in written form, prior to making a final decision that is of significant interest to the public.” Mont. Code Ann. § 2-3-111(1).
FWP has determined that matters of “adoption of wildlife management regulations including the setting of seasons” are department decisions “thought to be of significant interest to the public.” A.R.M. § 12.2.305(1)(a).
For matters of significant interest to the public, FWP requires:
Opportunity for public participation shall be provided by rendering final decisions on these matters at commission meetings which are open to the public and which have been announced in advance or by offering opportunity for written comments or hearing prior to decisions which are made by the department through publication of notice pursuant to the Montana Administrative Procedure Act.
A.R.M. § 12.2.305(2)(emphasis added).
When an agency proposes to take an action that “directly impacts a specific community or area,” the agency must hold a public hearing in an accessible facility in the affected area or community. Mont. Code Ann. § 2-3-111(2).
For More Information:
Kerry White of Citizens for Balanced Use
Attorney Cory Swanson