An arbitration panel ruled Jan. 27 that Wyoming Game and Fish Department should pay a Hot Springs County rancher $339,927 for stock killed by grizzly bears and mountain lions, almost four times the offer that Wyoming Game and Fish Commission regulations allowed.
The judgment for Josh Longwell of the HD Ranch outside Thermopolis came to 80% of the $422,971 damage claim he submitted to the state wildlife agency. The Game and Fish Department and commission had awarded Longwell $89,498 for the loss of dozens of cattle and sheep in 2018, a figure he appealed to the arbitration panel.
The verdict is the latest development in a 25-year clash between public wildlife values and private property rights in the Owl Creek area. The disputes involve grazing permits, claims of government overreach and the health of a prized herd of bighorn sheep, and the issue has been litigated all the way to the U.S. Supreme Court.
The aspect now at issue involves grizzly bears killing livestock at the HD Ranch, which is owned by Frank Robbins and managed by Longwell.
The three-member panel deliberated for about an hour and a half before rendering its 2-1 judgment. The decision came after about five hours of testimony in Thermopolis.
Longwell said the ruling was a victory, even though it fell short of his request.
“Anything over $89,000 is a win,” Longwell told WyoFile after the verdict. The decision may send a message to the Legislature that the Game and Fish compensation formula — a state-wide calculation based on wildlife studies — needs to be updated, he said.
At issue was whether and how much the state agency should pay Longwell for dead and missing stock. Game and Fish said rules allowed it to pay only the $89,000, based on formulas developed in conjunction with agricultural interests and derived from studies, experience and legislation. Longwell’s claims exceeded those limits.
“I’m hoping it will raise some eyebrows,” Longwell said of the verdict.
Game and Fish receives about 200 damage claims a year, a handful of which are appealed to the agency commission. Perhaps 1% of claims go to arbitration, Scott Edberg, Game and Fish deputy chief of wildlife said.
Attorneys are studying the verdict, he said.
“This is still a legal issue and the Department is reviewing the [arbitrators’] decision before it determines any further actions,” Edberg wrote in an email.
Competing legal theories
“There’s very few facts we disagree on,” Game and Fish’s counsel, Senior Assistant Attorney General David DeWald told the panel. “The department admits there’s extensive damage here — I believe over 100 lambs.”
Instead, sides mainly disagreed about dead cattle and the “loss multiplier” Game and Fish uses to pay for missing stock presumed killed by big- and trophy-game carnivores. Game and Fish can pay up to 3.5 times the value of every head of stock confirmed killed by those predators, depending on the predator and landscape setting.
The multiplier accounts for stock missing and presumed to also be victims. In an effort not to over compensate, Game and Fish investigators also consider a rancher’s stock loss at the end of the season, based solely on his or her records.
Longwell’s claim proposed a new multiplier: 20 calves for every confirmed calf lost to grizzly bears. He said he needed to apply that multiplier to make up for the havoc and significant economic loss the wildlife cost his operations.
Those costs include everything from fuel, time, loss of stock weight, reductions in pregnancies, nurturing of orphaned calves and lambs, among other things, Longwell told the panel. The losses occurred on private property and Forest Service land.
“All these other costs — putting a multiplier on the calf is the only way I can [recoup] that,” Longwell said. “This is the only avenue I have to get my money back.”
Over state objections, Longwell pointed to the Fifth Amendment of the U.S. Constitution, which says among other things that private property cannot be taken for public use without just compensation.
“They’re taking our property,” he told the panel. “They’re taking private property for the management of bears…
“If I don’t have a right to the Fifth Amendment of the Constitution, I don’t know why I’m here,” Longwell said. “You guys are the voice of the people, of private property rights.”
Longwell’s Fifth Amendment arguments fail against another legal principle, DeWald suggested. That’s the judicial doctrine of sovereign immunity that insulates a government from lawsuits.
In most states, claims against a government for loss caused by wildlife are dismissed on that sovereign immunity basis, DeWald told the panel. Wyoming, however, has allowed payment for some wildlife damage, including up to 3.5 times the value of some verified kills.
But the law doesn’t allow Game and Fish to pay for extra fuel, lost stock weight and other impacts a rancher believes big and trophy game are costing his or her operation, DeWald said.
“The department has already given Mr. Longwell, under the law, the maximum damage,” he said. “I don’t think you have the [discretion] to award a multiplier that is outside of that,” DeWald said.
Wyoming’s 3.5 multiplier is “probably the most liberal compensation program in the world,” Game and Fish Large Carnivore Coordinator Brian DeBolt told the panel. Further, DeBolt said, he had never seen anything to justify a compensation ratio of 20-to-one.
Game and Fish verified 20 calf losses — 13 steers and seven heifers, figures Longwell didn’t dispute. Both parties valued the steer calves at $936.65 each, the heifers at $758.58.
Game and Fish applied the 3.5 multiplier to bring the total number to 70 calves and the total value to $61,202.
Longwell sought $349,730 for the lost calves, applying all the same factors except the multiplier, which he substituted with 20.
That’s a difference of $288,528.
The panel filled out a verdict form that asked members to indicate how much the department should pay for “damage” to each classification of stock.
For steer calves, the panel awarded $149,864 where Longwell claimed $243,529. The verdict awarded payment for 160 steer calves where Longwell sought payment for 260.
For heifer calves the panel awarded $116,821 where Longwell sought $106,201. It pegged lost heifer numbers at 154 where Longwell claimed 140.
The panel also boosted the award for sheep, but applied the 3.5 multiplier for all those verified losses. Longwell had contested Game and Fish’s definition of some grazing lands as pastures.
In pastures, where carcasses are easily found, Game and Fish does not apply a multiplier. On open range, where carcasses can be cached or are difficult to find, the multiplier kicks in.
DeWald conceded there was a “fact issue” regarding Game and Fish investigator Luke Ellsbury’s cataloging of verified sheep losses in pastures. Longwell said some of the country included willows “four, five, six feet above your head,” and he showed photographs of pastures that included cottonwood tree groves.
For all sheep losses, the panel applied the 3.5 multiplier for open range.
Longwell sought $70,494 for all sheep whereas the department valued his losses at $25,547. The panel’s verdict equaled Longwell’s request.
Origins of the multiplier
Laws required Game and Fish to adopt regulations for determining how much it pays for stock that investigators determine are killed by large carnivores.
A 1990s study of a grazing allotment on Togwotee Pass determined that for every head of cattle confirmed killed by grizzlies, cowboys could not find another 0.67 head also lost to the predator. That led to the first compensation multiplier of 1.67 adopted by regulation in 1996.
But information from grazing allotments on the Upper Green River, where ranchers had convincing statistics from before the appearance of wolves and grizzlies in large numbers, led to a revision of the multiplier.
“Based on all that [Green River information] the department agreed on [a multiplier of] 3.5 to kind of give the benefit to the producer,” DeBolt told the panel. That 2004 revision of the multiplier “was unanimously supported by the livestock industry,” he said.
Longwell said the multiplier is once again out of date.
“Grizzly bears have exploded,” he said. “In 14 years, the department hasn’t looked back into the damage and regulations.” Game and Fish representatives said a three-year revision study was underway.
The arbitration panel consisted of three registered voters from Hot Springs County, a rural and largely agricultural community. Game and Fish picked one member, Roger Shanor. Longwell appointed Scott Miller. Together they appointed Nathanial Myers. Miller and Myers signed the verdict form but Shanor did not.
“If you send them a bill for $422,000 and they say ‘Wow where did this come from?’ you’ll wake up everybody in the Legislature,” Longwell told the panel. “The only way we’ll make change is by hurting them in the pocketbook.”
DeWald said the Game and Fish Department is the one that is paying the damage claim. It is funded largely by sportsmen and -womens’ dollars.
The date of the hearing in this story was corrected — Ed.