Judge sides with Game and Fish, limits grizzly-killed livestock award

Angus M. Thuermer Jr., WyoFile.com via Wyoming News Exchange
Posted 5/31/21

A judge decided Monday to reduce by $205,483 an arbitration panel’s award to a Hot Springs County rancher for cattle lost to grizzly bears.

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Judge sides with Game and Fish, limits grizzly-killed livestock award


A judge decided Monday to reduce by $205,483 an arbitration panel’s award to a Hot Springs County rancher for cattle lost to grizzly bears.

In a letter to attorneys in the case, District Court Judge Bill Simpson of Cody sided with the Game and Fish Department and Commission who had agreed to pay Thermopolis-area rancher Josh Longwell only $61,202. That sum would cover the value of 20 calves verified as lost to grizzly bears in 2018, adjusted by a 3.5-times multiplier to account for missing calves likely taken by the trophy game animal but not discovered. 

All told, the Game and Fish decision covered the value of 70 calves. The agency set the 3.5-times restitution formula in regulation in 2004 as authorized by Wyoming law.

Longwell, who grazes stock in the rugged Owl Creek drainage wilderness grizzly country at the edge of the Shoshone National Forest bordering Yellowstone National Park, claimed he was missing 314 head of cattle. He argued the state should apply a 20-times multiplier to the 20 calves confirmed killed by grizzlies for a total of 400 calves.

After Longwell appealed to an arbitration panel in February 2020, that board in a 2-1 decision awarded the rancher $266,685 for 314 lost calves. The panel’s written verdict provided no detailed reasoning for the decision.

Game and Fish appealed that award arguing the arbitration panel exceeded its legal authority. Simpson, who presided over a hearing on the case earlier this year, sided Monday with the state agency.

“The arbitrators did not indicate any relationship between the number of livestock awarded as missing or lost and the number confirmed killed by Game and Fish,” Simpson wrote to attorneys in the case. “By failing to use the multiplier, the arbitrators made an award on a matter not submitted to them.”

“We’re going to appeal the decision,” Longwell said Friday. “We’re going to the Supreme Court.

“It’s disheartening,” he said of the decision. The state of Wyoming and federal government are “still not managing grizzly bears.”

The grizzly remains under federal Endangered Species Act protection, limiting wildlife managers’ options in conflict situations. Wyoming has sought, without success, to remove those protections and to institute a hunt of grizzly bears.

Game and Fish has trapped and moved some grizzlies from his ranch area, with the cooperation of the U.S. Fish and Wildlife Service. Longwell told Game and Fish commissioners in 2019 that he shot and killed a grizzly bear one night while defending his stock, believing it was a black bear.

“We’re footing the bill,” for grizzly bear recovery, Longwell said. The loss of stock to grizzlies is an uncompensated taking of private property, Longwell claims, and prohibited by the U.S. Constitution.

“They’re a bunch of thieves,” Longwell said of federal and state wildlife managers. “At the end of the day, they’re going to put me out of business.” 

Simpson’s 13-page letter asked Wyoming Deputy Attorney General James Kaste to draft an order reflecting Simpson’s conclusions. The order will be finalized and filed after review by Kaste, by Longwell’s attorney Drake Hill and by Simpson.

Longwell, who represented himself before the arbitration board, argued the constitutional angle of an uncompensated taking during that panel’s day-long hearing in 2020. But Simpson, in a footnote to his letter, said the constitutional argument had no bearing on the narrow review before him.

“The [arbitration] board had no authority to rule on the constitutional issue and did not specifically do so, though it is unknown to what extent the board may have weighed the argument,” Simpson wrote. He cited a precedent-setting court case that states “constitutional questions must be answered by the courts, not by administrative agencies or by arbitrators.”

Game and Fish and Longwell had settled on compensation for the loss of other stock. They also agreed agency investigators verified that 20 calf carcasses showed signs that they were more likely than not killed by grizzly bears. The value of heifer and steer calves was not in question.

That left the difference between the 3.5-times multiplier and the 20-times multiplier as the only difference between the two parties, Game and Fish contended.

Through 2004, the wildlife agency used a multiplier of 1.67, based on research, for grizzly compensation. More documentation from ranchers grazing public lands in the Upper Green River drainage led Game and Fish to increase that to 3.5 under certain conditions.

Longwell believes that maximum multiplier is outdated “and that the arbitrators had the power and authority to apply the higher (20-times) multiplier,” Simpson wrote.

“Nonetheless,” Simpson wrote, “Mr. Longwell now argues that the issue before the [arbitration] board was broader than merely what multiplier to use. His position is that the issue was simply how many calves were killed by grizzly bears regardless of a multiplier.

“(T)he arbitrators did not use a multiplier at all,” Simpson wrote, failing to link confirmed, verified grizzly depredations with compensation as set out by Wyoming law and regulation. Without such a link, “claimants could submit inflated numbers with no way for the (Game and Fish) Department to verify the claim.” 

But, Simpson wrote, “the multiplier is necessary and should have been elemental and essential to the (arbitration) board’s decision.”

Longwell claimed that if the arbitration board could not vary from the 3.5 multiplier, there was no use in having such an avenue of appeal. Game and Fish said the panel could have investigated numerous factual matters regarding the dispute, such as the price of calves or how the department confirmed the kills.

But those other issues were not in dispute. “For all practical purposes, in this particular case, there was little left for the arbitrators to do but to apply a multiplier,” Simpson wrote.

Allowing arbitrators to avoid the Game and Fish 3.5-times multiplier “would be contrary to the Legislative purpose” of the act authorizing the agency to derive a compensation formula, Simpson wrote.

If an arbitration panel may ignore such legally authorized regulations, “(t)he effort to draft the legislation and create the regulation would have been an exercise in empty paperwork,” Simpson wrote. “The statute authorizes the multiplier and any award must derive from its use.”

Regarding the 2004 3.5-times multiplier and its adequacy today, “that is a question for the (Game and Fish) Commission or the Legislature,” Simpson wrote. 

Longwell continues his struggles with grizzly bears today, he said. His HD Ranch, a patchwork of federal and private property “is big, wild wilderness country that’s not accessible by vehicle.”

To find dead cattle, he’d have to hire more cowboys, he said.

“I can’t afford to hire 15-20 guys to ride around all day,” he said. Plus, there’s additional fuel costs, loss of stock weight and the inability to graze some areas — all because of grizzly bears.

“You can’t even use the summer grass up there,” he said of his high-elevation property. “It’s way bigger than a dead calf,” he said of trophy-game impacts.

“I’m not going to quit fighting,” he said.

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