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Message Title: I-143 Ruling
Author: 4estWise  Posted: 10\01\2003 15:01
Spoklie v State of Montana


Montana voters passed Ballot Initiative 143 in November, 2000. Game farmers have initiated a variety of court actions attempting to overturn the vote.

To date, there have been something like 13 court cases regarding various aspects of this issue, tried at the state district court level, the state supreme court level, and in federal courts. In every single case the courts have upheld the validity of i143, overturned temporary injunctions, and reaffirmed the public's right to protect their wildlife.

The ruling posted (verbatim) below is the third (and by far the most definitive), federal case. There were seven major counts; the court ruled for the public in every one.

In the September discussion under "I-143 upheld," antler333 attacked the Missoulian: "Boy, talk about a biased view of the world," and suggested that Missoulian distorted the court's ruling, specifically that "The federal judge only ruled that the state has a right to create laws that are restrictive in nature....a la, zoning laws.....the newspaper people created the rest of the retoric."

Further, and among his many personal attacks, he suggested that I am a "poorly informed individual" because I suggested the Missoulian's was a "well-reasoned, and well-presented" description of the ruling, and because I pointed out the hypocrisy of game farmers trying to make this case while suggesting that the public has no right to protect OUR interest.

I do not respond to personal attacks, but, as promised, offer the actual ruling so people can judge for themselves.


SEPTEMBER, 11/ 2003



No. CV-02-102-GF-SEH



This case is one of several actions filed by alternative livestock ranch operators [1] challenging the validity of ballot Initiative 143 (I-143), passed by Montana voters November 7, 2000. [2] Defendants are the State of Montana (State), the Montana Department of Fish, Wildlife & Parks (DFWP), and Jeff Hagener, director of the DFWP (Hagener). The Complaint asserts seven separate claims for relief, six of which attack I-143 on particularized constitutional grounds.[3] This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343.
Constitutional violations alleged are: (1) equal protection (U.S. Const, amend. XIV, Mont. Const, art. II, § 4) in Count I; (2) commerce clause (U.S. Const, art. I, § 8) in Count II; (3) substantive due process (U.S. Const, amend. XIV, Mont. Const, art. II, § 17) in Count III; (4) fundamental rights (Mont. Const, art. II, § 3) in Count IV; (5) vested rights (U.S. Const, art. I, § 10, Mont. Const, art. 2, § 31, Mont. Const, art. 13, § 1(3)) in Count V; and (6) taking of property (U.S. Const, art. V) in Count VI. Plaintiffs also assert a 42 U.S.C. § 1983 claim against Hagener and an inherent limitation on police power claim in Count VII.

Defendants have moved to dismiss all claims under Fed. R. Civ. P. 12(b)(6). A hearing on the motion was held July 16, 2003.


All of Plaintiffs' constitutional claims, in substance, seek to protect the use and enjoyment of property rights which are said to have been unconstitutionally infringed or impaired by the application of I-143 to Plaintiffs' alternative livestock ranch operations. The claims are substantially similar to those raised in Kafka I, before Chief Judge Molloy and in Kafka II, before Judge Warner. The issues now before this Court likewise are the same as many of those addressed by Chief Judge Molloy and by Judge Warner in their orders of October 5, 2001, and October 21, 2002, respectively. Only the inherent limits on police power and 42 U.S.C. § 1983 claims in Count VII were not raised in either Kafka I or Kafka II. Moreover, three of the Plaintiffs in this case were or are plaintiffs in Kafka I and Kafka II.[4]

No final judgment was entered in Kafka I before it was dismissed. Kafka II is still pending in Montana's Twelfth Judicial District. And, while neither Chief Judge Molloy's ruling in Kafka I nor Judge Warner's ruling in Kafka II has issue preclusion or resjudicata effect on the case at bar, both opinions contain sound and well-articulated analyses of the issues addressed. Both will be looked to as persuasive precedent for addressing the issues before this Court.


A Rule 12(b)(6) motion is to be assessed from the premise that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson. 355 U.S. 41, 45-46 (1957). However, "dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept. 901 F.2d 696, 699 (9th Cir. 1988). Each claim will be addressed accordingly.
Count I - Equal Protection (U.S. Const, amend. XIV. Mont. Const, art. II. § 4)

I-143 cannot be challenged on the basis that its application deprives Plaintiffs of equal protection under either the United States or Montana constitution. The initiative neither discriminates against a suspect class nor implicates a recognized fundamental property right. Kafka I. 176 F. Supp. 2d at 1042-43. Rather, the record supports a rational basis for passage of I-143 in furtherance of legitimate state interests." [5] Plaintiffs cannot be said to have an absolute or unfettered right to operate an alternative livestock ranch as they see fit. Given the rational basis for 1-143, Plaintiff's equal protection claims fail. City of New Orleans v. Dukes, 427 U.S. 297, 303(1976).

Count II - Commerce Clause (U.S. Const, art. I, § 8)

I-143 is facially neutral. It advances legitimate non-illusory state interests in protecting Montana wildlife.[6] If I-143 could be said to constitute a burden upon interstate commerce, a proposition which itself is suspect, that burden cannot be characterized as clearly excessive in relation to the putative state interests: Pike v. Bruce Church. Inc.. 397 U.S. 137, 142 (1970), or to amount to economic protectionism. Minnesota v. Clover Leaf Creamery Co.. 449 U.S. 456, 471 (1981). The initiative does not violate the commerce clause.

Count III - Substantive Due Process (U.S. Const, amend. XIV. Mont. Const, art. II, § 17)

This claim is, in substance, a taking claim. No court has recognized a substantive due process based taking claim under either the United States or Montana constitution and this Court sees no justification for doing so. Armendariz v. Penman. 75 F.3d 1311,1325 (9th Cir. 1996) (en bane) ("[The] scope of substantive due process, however ill-defined does not extend to circumstances already addressed by other constitutional provisions."); Madison v. Graham. 316 T.3d 867, 87(3-71 (9th Cir. 2002); Macri v. King County. 126 F.3d 1125,1128-29 (9th Cir. 1997). cert, denied. 520 U.S. 1153 (1998).

Count IV o Fundamental Rights (Mont. Const, art. II, § 3)

The rights Plaintiffs seek to protect are property rights. Moreover, they are property rights grounded in operation of a particular type of commercial enterprise. Montana has long recognized the capacity of the state in its police power to regulate commercial activities. Cecil v. Allied Stores Corp.. 513 P.2d 704, 710 (Mont. 1973); State v. Safeway Stores. 76 P.2d 81, 84-85 (Mont. 1938); State ex rel. Freeman v. Abstracters Bd. of Examiners. 45 P.2d 668, 671 (Mont. 1935); State v. Loomis. 242 P. 344, 346 (Mont. 1925). I-143 is but an example of that recognized power.

Count V - Vested Rights

(U.S. Const, art. I. § 10, Mont. Const, art. 2. § 31. Mont. Const, art. 13, § 1(3))
Plaintiffs asserted in their briefs, and argued at the July 16, 2003, hearing, that they took certain actions in reliance upon the content of Montana law regulating alternative livestock ranches and in reliance upon licenses that they obtained pursuant to statute prior to passage of I-143, that those actions and license interests resulted in vested rights, and that I-143 unconstitutionally deprives them of the capacity to rely upon those vested rights as a basis for their principal means of support. Neither case law nor statute supports Plaintiffs' position.

Plaintiffs have no claim to a vested right in pre-I-143 alternative livestock ranch legislation. Mont. Code Ann. § 1-2-110 (2001) ("Any statute may be repealed at any time except when it is otherwise provided herein. Persons acting under any statute are deemed to have acted in contemplation of this power of repeal."); cf. Meech v. Hillhaven West. Inc., 776 P.2d 488, 494 (Mont. 1989) ("No one has a vested right in any rule of the common law."); Shea v. North Butte Mining Co.. 179 P. 499, 503 (Mont. 1919) (same).

Moreover, Plaintiffs' alternative livestock ranch operations are dependent upon licenses from the state. A license is not a vested right. It is a privilege granted by the state. Standard Oil Co. v. State Bd. of Equalization. 99 P.2d 229, 234 (Mont. 1940); Kafka E, Order on Motion to Dismiss at 6; 53 C.J.S. Licenses § 2 (1987). See also Wallace v. Montana Dept. of Fish.Wildlife & Parks, 889 P.2d 817 (Mont. 1995) (holding that game farm applicant had no vested right in pre-1993 regulatory program merely because license application was pending and enforcement of amendments did not violate prohibition on retroactivity).

Plaintiffs cannot look to language of Montana statutes at a particular point in time as justification for the conclusion that the law could not be changed. In addition, the courts have consistently recognized the capacity of the legislature, in exercise of the police power, to change the parameters of privilege granted by license or even to take away the capacity to receive or maintain a license. United States v. Salvatore. 110 F.3d 1131,1141 (5th Cir. 1997) ("[A] license ... comes from the state, and may be withheld completely."); 53 C.J.S. Licenses § 15 (1987).

The contracts to which the Plaintiffs make reference as having been impaired are contracts related to their alternative livestock ranch activities which, in turn, were permitted only because of a privilege (license) granted by the state. Impairment of those contracts, if any, was the result of the state's reasonable exercise of a significant and legitimate public purpose.[7] Such state action did not impermissibly impair or constitutionally deprive Plaintiffs of contract interests. Keystone Bituminous Coal Assoc. v. DeBenedictis. 480 U.S. 470, 502-06 (1987); Carmichael v. Workers' Compensation Court. 763 P.2d 1122, 1125 (Mont. 1988) (recognizing coterminous nature of the state and federal contract clauses).[8]

Count VI - Taking of Property OJ.S. Const, art. V).

Plaintiffs state in their briefs, as they did at the July 16, 2003, hearing, that their taking claims are not premised upon an outright taking of their property. Rather, they rely upon a diminution in value of the property as basis for the claim. They further asserted at the motion hearing that it is not necessary to be wholly deprived of all opportunity for use or income from the property to make the claims. Plaintiffs' premise is unsound.

Initially, the claims are subject to dismissal as premature. Taking claims are not ripe for adjudication in federal court until the issuance of a final decision regarding application of the regulation to particular property and until there has been a denial of just compensation. Williamson County Regl. Plan. Commn. v. Hamilton Bank of Johnson City, 473 U.S. 172, 186-194 (1985). See also Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161, 164 (9th Cir. 1993).
As noted, Plaintiffs do not contend they have to be deprived of the loss of all economically viable uses of the property. See Christensen, 995 F.2d at 164-65; Del Monte Dunes at Monterev. Ltd.. v. City of Monterev. 95 F.3d 1422, 1432 (9th Cir. 1996). However, they have cited no case and this Court has found no decision supporting the proposition that a constitutional taking claim may be asserted on the basis of a diminution in value, as distinct from a total loss of value, of the property. Developed law leads to the opposite conclusion. See Del Monte Dunes at Monterev. Ltd.. 95 F.3d at 1432 (compensation required only if owner deprived of all beneficial or productive use options).

Count VII - Inherent Limits on Police Power

The fundamental limit on the state's police power with respect to economic regulation is the requirement of a rational relationship to a legitimate state interest. City of New Orleans v. Dukes. 427 U.S. 297, 303 (1976). The Court has determined, as have two other courts, that I-143 was rationally related to legitimate state interests. The inherent limitation claim advanced in Count VII is ungrounded in law.

Claims Against Hagener

The allegations of wrongdoing directed against Hagener are vague at best. He specifically is not accused of acting beyond the law in any way. Rather, it is his actions as DFWP director, consistent with law, that are said to render him personally liable.

The Court has concluded none of the State's actions violated any constitutional right of Plaintiffs. If the State did not violate Plaintiffs' rights, obviously Hagener, acting consistent with state law, did not either.


None of the claims asserted in the Complaint states a claim for relief under Fed. R. Civ. P. 12(b). Defendants are entitled to dismissal of the Complaint.


Defendants' Motion to Dismiss[9] is GRANTED. Counts I through VII of the Complaint are dismissed.


Plaintiffs' Motion for Class Certification[10] is DENIED as moot.

DATED this day of September, 2003.

SAM E. HADDON " United States District Judge

[1] "Alternative livestock" and "alternative livestock ranch" are defined in Mont. CodeAnn. § 87-4-406 as:

(1) "Alternative livestock" means a privately owned caribou, white-tailed deer, mule deer, elk, moose, antelope, mountain sheep, or mountain goat indigenous to the state of Montana, a privately owned reindeer, or any other cloven-hoofed ungulate as classified by the department.

(2) "Alternative livestock ranch" means the enclosed land area upon which alternative livestock may be kept for purposes of obtaining, rearing in captivity, keeping, or selling alternative livestock or parts of alternative livestock…

[2] Other actions previously filed or pending are:

(1) Kim J. Kafka, et al. v. Jeff Hagener, et aJL, CV O1-32-GF-DWM, filed February 23, 2001, and dismissed by Plaintiffs on November 7, 2001, following denial of their motion for preliminary injunction against enforcement of one of the provisions of 1-143. See Kafka v. Hagener. 176 F. Supp.2d 1037 (D. Mont. 2001) (Molloy, C.J.) (Kafka I); (2) Kim J. Kafka, et al. v. The Montana Department of Fish Wildlife and Parks. et al.. Montana Twelfth Judicial District, DV 02-059 (2002) (Warner, J.) (Kafka ID. All claims asserted in Kafka II. except one, were dismissed by Judge (now Justice) John Warner by order dated October 21, 2002; and (3) Robert Spoklie. et al. v. Montana Department of Fish. Wildlife & Parks, et al. Montana Fifteenth Judicial District, 11013 (2001) (Cybulski, J).

[3] The essential components of I-143 are:

(1) a moratorium on the issuance of new game farm licenses initially passed during the May 2000 Special Session of the Montana legislature was made permanent; (2) existing game farm licenses were made non-transferable; and (3) game farm licenses were no longer permitted to allow game animals or alternative livestock to be shot for a fee or other remuneration on an alternative livestock ranch.

[4] See: Diamond K Ranch Enterprises, LLC, Cindy R. Kafka, and Kim J. Kafka)

[5] State interests referenced in the Montana 2000 Voter Information Pamphlet, Arguments For and Against I-143 and recognized and accepted in Kafka I or Kafka II, or both, include: (1) prevent disease and hybridization in wildlife populations; (2) promote fair chase hunting ethics; (3) promote Montana's hunting heritage and legacy; (4) prevent the creation and expansion of commercial markets for wildlife; (5) prevent the loss of wildlife habitat; (6) forestall interference with the economic benefits realized from traditional fair chase hunting; and (7) combat "the bankrupt image of hunting portrayed by the paid shooting of captive animals."

[6] See: n5.

[7] See n5.

[8] Judge Warner dismissed a similar claim in Kafka II. finding: (1) the retroactivity claim failed because the plaintiffs had no vested rights in the regulatory scheme in place when their licenses were issued, and (2) the contract clause claim failed because "a contract carries with it the possibility that it may become illegal by operation of law." Kafka II, Order on Motion to Dismiss p. 7 (Oct. 21, 2002) (citing Allied Structural Steel Co. v. Spannus. 438 U.S. 234, 241-42 (1978)). Judge Warner also noted that "[w]here the challenged statute applies to an area that has historically been the subject of extensive regulation a person's expectations as to the immutability of contracts are reduced." Id. at 8 (citing 16A Am. Jur. 2d Con. Law § 356, p. 303). His reasoning is equally applicable to the issues in this case.

[9] Docket No. 12.

[10] Docket No. 41