The Associated Press
HELENA (AP) — A judges order blocking shipment of elk from a game farm to the Crow Indian Reservation is unconstitutional interference with commerce and an illegal intrusion into a sovereign Indian nations affairs, the game farm owners have told the Montana Supreme Court.
In documents filed with the high court, Len and Pamela Wallace asked the justices to overturn the order and allow them to complete the sale of about 400 elk from their Big Velvet Ranch in Darby.
Tests have found the animals healthy and genetically pure, so the state has no legal basis for preventing transfer to the tribe, argued the Wallaces attorney, Stan Kaleczyc.
No state interest justifies such over-reaching by the state here, he said.
The brief filed on behalf of the Wallaces is the latest development in a legal battle over the couples plans to liquidate their herd in the aftermath of a new law that limits game farm operations in the state.
The Crow Tribe agreed to accept the Wallaces elk and planned to allow them to roam the Crow reservation in southeast Montana. Sixty-eight animals were shipped before the state Department of Fish, Wildlife and Parks obtained a court order in May that prevented the Wallaces from shipping any more.
State wildlife officials have argued the Wallaces, as licensed game farm operators, have a legal obligation to make sure their animals end up in a secure facility where they cannot spread disease or alter the genetics of wild elk.
One of the fish and game agencys greatest fears is that some of the Wallaces elk could have chronic wasting disease, a fatal neurological infection that cannot be diagnosed in live animals.
The Wallaces contend that District Judge Dorothy McCarters order amounts to a ban on shipment of game farm animals to anyone who does not operate a game farm licensed by the state.
Such a restriction violates the U.S. Constitutions prohibition on states interfering with interstate and foreign commerce, because the restriction applies to shipment of animals to another nation — in this case, the Crow Tribe, Kaleczyc said in his court brief.
The department may not, as a matter of law, attempt to assert its jurisdiction directly over the Crow Tribe, nor may it do so indirectly by prohibiting the otherwise lawful transportation of alternative livestock to any location other than a licensed game farm over which FWP has jurisdiction, he wrote.
Nothing in Montana law forbids the shipment of game farm animals to other states or nations, Kaleczyc said. The state cannot require, as a condition for allowing such transfer of animals, that a sovereign nation comply with Montanas licensing laws, he said.
He also said that the Wallaces met all requirements for transferring their elk, and that the state veterinarian believes the animals are an unlikely threat to wildlife.
The fish and game agency has yet to file its response with the Supreme Court.
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