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McCarter says animals must remain on game farm

HELENA - A judge has left in place her order banning any more shipments of elk from a Darby game farm to the Crow Indian Reservation, saying the law does not allow such movement of the animals.

"The statute says what it says," District Judge Dorothy McCarter of Helena said Wednesday after a short hearing on whether her restraining order should be lifted. "The statute says alternative livestock can be kept only on an alternative livestock ranch. There is nothing else in the statute that authorizes the transfer or the placement of these alternative livestock anywhere other than at a licensed alternative livestock ranch."

Her ruling was a victory for the state Department of Fish, Wildlife and Parks, which had argued that Len and Pamela Wallace, owners of the Big Velvet Ranch, could not legally give their elk to the Crows unless the tribe would maintain the animals in a secure facility.

The agency said the tribe's plans to turn the elk loose on the reservation could spread undetected disease and genetic pollution to native wildlife.

Stan Kaleczyc, attorney for the Wallaces, said he will have to talk with his clients about whether to appeal McCarter's decision.

He told the judge time is critical. The Wallaces shipped 68 elk to the tribe before McCarter issued her order last week, but they have another 384 elk ready for shipment to the reservation. The herd includes 259 pregnant cows within weeks of giving birth, Kaleczyc said.

Waiting much longer will mean the Wallaces will have to delay shipment until the calves will be a few months old and that will cost the couple nearly $100,000 in additional feeding costs they wanted to avoid by giving the elk to the tribe, he said.

McCarter said her decision was based on whether the Wallaces have authority to send the elk somewhere in the state where they will not be kept on a licensed game farm with the related security. The law specifically prohibits such transfer of game farm animals and other legal arguments do not affect that finding, she said.

She encouraged state wildlife officials to work out an arrangement with the tribe in which the Wallace elk would be kept in a game farm setting, a move that could allow the remaining animals to be sent to the reservation.

Wednesday's hearing was the latest development in a weeklong legal battle over what happens to the Wallaces' elk. It also highlights the ongoing controversy surrounding game farms in Montana, which culminated with passage last fall of an initiative severely restricting such operations.

The measure was prompted by fears over the spread of chronic wasting disease, a fatal infection discovered in a Philipsburg game farm.

Kaleczyc argued the Wallaces have complied with all testing and inspection requirements for transferring their animals, and that the state veterinarian has concluded the elk pose little threat of spreading disease.

He said the state's objections are an illegal attempt to impose game farm requirements on a sovereign Indian nation. Demanding tribal acceptance of such regulations before the state would agree to let the elk be moved is a form of "legal blackmail," Kaleczyc said.

Also, since the tribe is an independent government, the fish and game agency's position amounts to interference with interstate commerce in violation of the U.S. Constitution, he added.

Bob Lane, chief attorney for Fish, Wildlife and Parks, countered that his agency is merely enforcing a law governing a game farm operator licensed by the state and not trying to force the Crow Tribe to do anything.

"The Legislature has already made the decision that there will be a barrier between the wild population and a game-farm population, as a matter of law," he said. "There is no authority to move these elk to a place in the state where they'll probably be released into the wild."

Lane said tribal officials have expressed interest in discussing the matter with the state and that could lead to an agreement on keeping the elk in a secure game farmlike operation.

Crow spokesman LeRoy Not Afraid said the tribe could sequester the game farm elk in an area known as Black Canyon, where the cliffs are tantamount to fences and the south rim of the canyon has an elk fence along the Wyoming border.

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