A second shot by four Montana hunters seeking to force the state to allow them to use crossbows during archery season was denied by a District Court judge on Friday.
The four men claimed Fish, Wildlife & Parks’ regulations disallowing crossbows during archery season violated the Americans with Disabilities Act. Crossbows can be used to hunt at other times of the year in Montana.
In their initial suit, Missoula U.S. District Court Judge Dana Christensen ruled on Aug. 29 there was no dispute to resolve since FWP and the Fish and Wildlife Commission agreed to hear the men’s claim during the Commission’s October meeting.
Montana’s archery season opened on Sept. 4 and runs through Oct. 17. Prior to filing their lawsuit, the four hunters — Tim Gardipee, Bruno Friia, Brad Molnar and David Helmers — had requested FWP authorize them to use crossbows during the archery season. FWP denied the requests, instead urging them to modify traditional bows, which is allowed for disabled hunters.
The hunters returned to court on Aug. 30 with an emergency motion, asking Judge Christensen to reconsider and force the state to issue them the permits they had requested. A hearing was held the next day, and the judge filed his order on Sept. 3 denying their claim for immediate relief.
Christensen wrote the hunters had not “met their burden to show that ‘extreme or very serious damage will result’” if they couldn’t use crossbows during this year’s archery season.
“But even assuming they had done so, the Court assigns little weight to the injuries alleged because of the alternative crossbow hunting opportunities available to Plaintiffs,” Christensen added.
The judge noted that finding in the men’s favor could, however, “result in several harms to (FWP and the Commission) and to the public interest.”
“First, it would eliminate the opportunity for public transparency and input on the use of crossbows during Archery Only Season, which the administrative process permits,” Christensen wrote. “This harm is particularly weighty in light of the facts that the accommodation Plaintiffs seek has never been permitted by FWP or FWC, and it quite recently failed to earn majority support in the legislature.”
One of the plaintiffs, Brad Molnar, is a Republican state senator from Laurel. During the past legislative session he supported a bill that would have legalized crossbows during the archery season for disabled hunters. Senate Bill 111 called for a $10 crossbow permit to be issued to disabled archery hunters following a doctor’s diagnosis determining disability.
The bill died in standing committee. Similar measures in past legislative sessions were also shot down.
Archery groups like the Montana Bowhunters Association have long opposed allowing crossbows during the archery season, arguing it fundamentally changes the requirements of the sport, such as approaching an animal close enough to draw back a bow and fire an arrow.
Christensen also said the decision should be made by the Fish and Wildlife Commission, rather than him, since they have “a deeper and broader knowledge of the myriad concerns ranging from game management to hunter safety.”
Thirdly, he said a ruling in the hunters’ favor could open the door to other disabled hunters in Montana seeking similar relief.
Montana already makes allowances for disabled archers to use modified equipment during the archery season. The four hunters, however, claimed the modifications were too clunky or difficult to use when compared to a crossbow.
“Plaintiffs characterize the ‘nature of the archery season’ as ‘enabling hunters to harvest a game animal with an arrow rather than a rifle and bullet,’” Christensen wrote. “The evidence before the Court shows otherwise.”
He noted that FWP’s regulations are very specific regarding archery and not limited to the projectile.
“In sum, participating in Montana’s Archery Only Season requires muscle power (of the arms or otherwise) and generally forbids artificial enhancements to the archer’s muscle power. In contrast, a crossbow does not require the hunter to pull a string at all,” Christensen said.
The judge also wrote that the ADA does not require FWP to provide “’the accommodation [a plaintiff] requests or prefers,’ but rather need only provide some reasonable accommodation.’”
Based on the hunters’ testimony, Christensen cited a Professional Golf Association case that went to the U.S. Supreme Court to note that the Montanans had “shown that archery hunting without a crossbow may be ‘uncomfortable or difficult, but not beyond their capacity’” using the current modifications that are allowed.
In the 2001 PGA ruling cited, disabled golfer Casey Martin was allowed to use a golf cart during the PGA Tour, which had previously been denied. Martin suffers from Klippel-Trenaunay-Weber Syndrome, a degenerative circulatory disorder.
Christensen wrote, “At this preliminary stage, based on the record presented by Plaintiffs, the Court finds that the alteration to the status quo they request is more akin to ‘changing the diameter of [a golf] hole from three to six inches’ — or, more analogously, permitting a golfer to use a club that performs the swinging action for him — than permitting a golfer to use a cart instead of walking between holes, and their requested accommodation thus likely ‘constitute[s] a fundamental alteration’ to the activity of hunting in Montana’s Archery Only Season.”
Christensen also wrote that the men’s request for a preliminary injunction required them to establish that they would be likely to succeed in their case and suffer irreparable harm if the court did not step in. A preliminary injunction is meant to preserve the status quo, he noted.
“Plaintiffs’ application, however, seeks relief beyond the status quo,” Christensen wrote. “Plaintiffs provide no evidence that Montana has ever permitted crossbow hunting during its Archery Only Season or that exemptions to that rule have been permitted in the past. Preliminary injunctive relief ‘which goes well beyond simply maintaining the status quo … is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.’”
Christensen noted that hunting with a crossbow is not prohibited, it is merely restricted, and such restriction doesn’t appear to discriminate against anyone based on their disability. He also said the plaintiffs had not “demonstrated irreparable harm, but even if they had done so, it is not the ‘extreme or very serious damage’ required to show entitlement to a preliminary injunction that will alter the status quo.”
Groups like the Montana Bowhunters Association were initially agitated by the idea that the four men may circumvent state regulations and be granted permits by filing a lawsuit. The group called upon its membership to flood upcoming meetings scheduled across the state by FWP Director Hank Worsech and voice their displeasure.
Still to be seen is how the Fish and Wildlife Commission will react. The five-member board is composed of four newly appointed members who in past rulings on issues like the cow elk shoulder season hunts and new rules for wolf hunting have ignored public opposition in favor of increasing harvests.