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Fish v. Trap Free Montana Public Lands

Supreme Court of Montana

May 15, 2018

MONTANA FISH, WILDLIFE and PARKS, Petitioner and Appellee,
v.
TRAP FREE MONTANA PUBLIC LANDS, Respondent and Appellant.

          Submitted on Briefs: March 14, 2018

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV-2016-1058 Honorable Michael F. McMahon, Presiding Judge.

          For Appellant: Brian J. Miller, Morrison, Sherwood, Wilson, and Deola, P.L.L.P., Helena, Montana.

          For Appellee: Zach Zipfel, Montana Fish, Wildlife and Parks, Helena, Montana.

          OPINION

          BETH BAKER JUSTICE.

         ¶1 Trap Free Montana Public Lands ("Trap Free") filed an ethics complaint against the Montana Department of Fish Wildlife and Parks ("FWP") with the Office of the Commissioner of Political Practices (the "Commissioner"). Trap Free alleged that FWP allowed the Montana Trappers Association ("MTA") to use an FWP-owned trailer and equipment in MTA's efforts to oppose a ballot initiative in violation of state law. The Commissioner agreed that FWP was responsible for ethics violations. On judicial review, the First Judicial District Court reversed. Trap Free appeals from the District Court order granting judicial review. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 FWP acquired a trailer and furbearing animal taxidermy displays in the 1990s for educational use. The trailer, which is marked with the FWP logo, is used to transport the displays around the state to various educational and outreach events. Until 2014, MTA used the trailer and displays as part of its education and outreach efforts without issue.

         ¶3 In February 2014, Ballot Issue I-169 was approved for signature-gathering. It proposed to prohibit trapping of certain animals by private individuals on any public lands within the State of Montana. MTA had opposed a similar ballot initiative in 2013 and began posting opposition to I-169 on its Facebook page in March 2014. As part of its efforts against these ballot initiatives, MTA created a ballot issue committee called Montanans for Effective Wildlife Management ("MEWM").

         ¶4 Sometime in September 2013, FWP delivered the trailer and displays to MTA President Toby Walrath for the organization's use in its educational programs. FWP did not maintain a record of specific events and purposes for which MTA used the trailer and displays. The record shows that MTA used the trailer and displays during the time in question for education and outreach apart from any political advocacy efforts against I-169, such as at the 2014 Youth Conservation and Education Expo.

         ¶5 The record also shows, however, that MTA used the trailer and displays in conjunction with its political advocacy efforts against I-169 on three occasions. On May 31, 2014, MTA members used the trailer and displays at the Montana PLUS event in Missoula. The event was advertised as "an effort to unite all the groups in Montana, who utilize public lands, consume natural resources and who oppose restrictive laws which keep Montanans from using and enjoying the outdoors." Billboards and Facebook posts advertising the event stated, "Say No to I-169." No FWP employees attended the event. On June 14, 2014, MTA members used the trailer and displays in their booth at the Hamilton Farmer's Market, in which they had hung a banner that read, "Vote No on I-169." The next day, MTA members again used that trailer and display at Cabela's in Missoula to advocate against I-169.

         ¶6 Two FWP employees-Brian Giddings and Ron Aasheim-received complaints from members of the public regarding MTA's use of the trailer and displays shortly after MTA used the equipment at Cabela's. Giddings reported the complaints to Aimee Hawkaluk, FWP Agency Legal Counsel. She advised that, although FWP had not authorized the use of the equipment for political advocacy, someone from the Department "should call the Montana Trappers Association to reinforce that all [its] activities related to the ballot initiative should be kept completely separate from the use of our trailer and other FWP materials." Aasheim reported the complaint to Rebecca Dockter, FWP Chief Legal Counsel. Dockter also advised that, although no FWP public officers or employees were involved, MTA "should not be allowed to continue the use of the equipment in any way connected with [its] initiative advocacy."

         ¶7 Aasheim contacted Walrath about the use of the trailer and displays. Walrath responded in an e-mail that MTA "will certainly not use the furbearer display anywhere near a MEWM sign again." He admitted that "it was a poor decision on the MTA's part to combine the two entities (MEWM and MTA) at one location near equipment bearing the FWP insignia. This will not happen again."

         ¶8 A few days later Hawkaluk discovered comments from a MTA member on a blog post that MTA had made magnets to cover up the FWP logo on the trailer. On the advice of Hawkaluk and Dockter, Aasheim followed up with Walrath "to emphasize, regardless of the MTA's efforts to cover up the state logo, FWP property absolutely may not be used in connection with advocacy for or against I-169." Following these reports, FWP also developed a form for users of FWP equipment to sign, acknowledging that they will not use the equipment "to solicit support for or opposition to any political committee, the nomination or election of any person to public office, or for influence of a ballot initiative." ...


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