Phillips County, in north-central Montana along the Canadian border–an area once described as “an almost mythical place, a world of savage blizzards and withering droughts in a geography too vast to comprehend”–contains miles of sparse scrub grass, low native plants, gravel, and rocks. Hostile and forbidding, bitterly cold in the winter and aridly hot in the summer, it is home to mountain lions, coyotes, rattlesnakes, antelope, deer, and black-tailed prairie dogs. The few people, 0.9 per square mile, are easily outnumbered by the prairie dogs.
Gary Marbut and Dr. Philip Barney, with fellow Montanans, formed a club to promote firearm safety and engage in an activity as old as mankind’s first encounter with the land of Phillips County: hunting. That land is primarily federal land, managed by the Bureau of Land Management (BLM) of the U.S. Department of the Interior. Since its creation, the Interior Department has kept the land open to the shooting of unregulated wildlife, such as prairie dogs, one of the few recreational activities in this desolate region.
The Federal Land Policy and Management Act requires the BLM to develop plans to control the manner in which these lands are managed. The Act requires the public be actively involved in the development of such management plans.
In 1994, the BLM developed such a plan, called “the Judith Valley Phillips Resource Management Plan,” or “JVP RMP,” for the 2.8 million acres under BLM control in Phillips, Fergus, Petroleum, Judith Basin, Valley, and southern Chouteau Counties. A portion of the 2.8 million acres covered by the JVP RMP lies within Phillips County, which contains 20,000 acres of land referred to as the “40 Complex.” Under the JVP RMP, approved by the BLM in 1994 after extensive public participation, Marbut, Barney, and their fellow Montanans may use the public lands of the 40 Complex for hiking, camping, hunting, and the recreational shooting of unregulated wildlife.
Meanwhile, the U.S. Fish and Wildlife Service (FWS) decided to introduce a minimum of 20 surplus black-footed ferrets in 1994, and annually thereafter for two to four years, into north-central Montana, including the 40 Complex. The FWS also announced the ferrets would continue to be protected under the Endangered Species Act (ESA).
A short time later, without notice or opportunity for public comment, the BLM closed the public lands in the 40 Complex to the “discharge or use of firearms,” to “protect habitat for the reintroduction of the black-footed ferrets.” Violations of the Closure Order result in “a fine not to exceed $1,000 and/or imprisonment not to exceed 12 months.”
Since issuance of the Closure Order, Marbut, Barney, and their fellow Montanans have been denied the right to engage in an activity allowed by the JVP RMP: the recreational shooting of unregulated wildlife.
The federal government is not seeking to protect the prairie dogs because they are listed under the ESA; they are not. Nor is the federal government seeking to prevent the shooting of ferrets, which are protected by the ESA; there is no danger of that.
What the government is seeking is to save prairie dogs so the ferrets can invade their homes and eat them. As the FWS put it, “[t]he prairie dog colony provides prey base and habitat for the survival of the ferrets. … Black-footed ferrets depend almost exclusively on prairie dogs and prairie dog towns for food and shelter. …”
The natural extension of this interpretation of the ESA is mind boggling: Any plant or animal could be placed off-limits under the ESA because it is used, as food or shelter, by a plant or animal protected by the ESA!
Marbut, Barney, and their fellow Montanans understand the dangers posed by the federal government’s precedent-setting and illegal actions in Phillips County. But with the lawsuit they filed against the government, they have a limited objective. They simply want the government to obey the law so that, “in a geography too vast to comprehend,” they can go hunting again.
William Perry Pendley is president and chief legal officer of the Mountain States Legal Foundation.
