A grizzly bear seen from a sheep wagon on the HD Ranch. (provided by Josh Longwell)

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.

HD ranch manager Josh Longwell and his wife Holli. (Angus M. Thuermer, Jr./WyoFile)

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.

A pile of dead lambs that investigators and ranchers collected on the HD Ranch. (Wyoming Game and Fish Department)

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. 

The numbers

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.

The paw of a grizzly caught after killing stock. (provided by Josh Longwell)

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.

At the Black Bear Cafe in Thermopolis, children contribute colorings of local wildlife. (Angus M. Thuermer, Jr./WyoFile)

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.

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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.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

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    1. What does that have to do with anything? We have to be ranchers to comment on how our taxpayer dollars are spent? We can explain facts to you:

      -Grazing fees for federal lands have not changed since the 1950’s; ranchers basically get free use of OUR lands

      -There is no accountability for ranchers who use public lands to ensure precautions are taken to protect their livestock from predators.

      -Due to this arbitration case, a precedent has been set that will allow ranchers tolet their livestock to run free in griz and wolf country, and get 20x the value of their livestock when they are eaten by a predator that eats fat slow animals. Nice, easy money if you ask me.

      Is there any other profession in our State that has these kind of protections? If the industry I worked in collapsed, the only protection I have is unemployment and it sure as heck won’t pay me 20x the amount I’m making now!

      Ranching/Farming is less than 3% of Wyoming’s GDP, yet this state bends over backwards to the industry. If we’re going to move forward as a State and ensure there are opportunities here for our youth, we need to get away from this backwards thinking.

  1. The guy is being compensated for being a poor manager. I wonder how much time he spends on his permits looking after his livestock. Most likely he turns them out in May and picks them up in November. Then wonders what the hell happened to my calves. Must be bears.

  2. Thank You Mr. Thuermer,

    I certainly appreciate the in depth follow-up on this matter to bring many points to ‘Light of Day’,
    so to speak.
    I am thoroughly entertained! jmg

  3. Leroy, you might not know that the multiplier law challenged was formulated and pushed by legislators who were ranchers, so I doubt this decision will affect their support for ranching cheaply on our public lands.

  4. The use of federal lands for grazing is practically free. How about figuring out what the value of using those lands actually is and deducting that from the award? I am a little more sympathetic with awards given to damage on rancher owned land on which they pay property taxes. Paying an exorbitant damage claim like the one proposed here is totally unacceptable on lands used for $2 or $3 a pair. This is a taxpayer subsidized operation that wants even more in taxpayer subsidies. The type of thinking presented here is what gives validity to the term “welfare rancher”. And how is it that the composition of the committee handling this is so one sided? I do hope this award gets the attention of the governor and the legislature and they make sure it never happens again. I am always astounded that ranchers who own and pay property taxes on their land put up with the all of the economic benefits given to their competitors who get government grazing rights for practically nothing. Public lands do not belong to ranchers, and meeting other public land use goals like habitat for wildlife should be considered a part of the deal, not something they should be paid for on top of the practically free use of the land.

    1. Agree. When will welfare ranchers take responsibility for their own livestock. They place their product on our lands, leave them unattended to become prey for the naturally wild predators, then make taxpayers liable for their neglect. Too cheap to pay for shepherds, guard dogs, etc. when they can get paid for their negligence. They pay a pittance to lease, get innumerable subsidies for daily operations, every loss imaginable, exaggerate those losses and still complain. How many companies have their entire operations subsidized by US citizens the way these leeches are. In addition, we pay for the deaths/loss of our natural wildlife predators of 1.5 million a year.with 2.7 million killed in 2016. Public lands are our lands and the wild life belongs to us. This greed is a travesty.

  5. Based on Longwell’s records, how many calves and lambs did he claim he was missing at the end of the grazing season? The multiplier cannot pay for more calves/lambs than are actually missing. Very odd that an arbitration panel can make awards outside Commission Regulations that are approved by the Governor.

  6. I seem to recall, from previous coverage of this story, that the Stock Growers association was pretty satisfied with the way the Game and Fish handled depredation claims. I am also pretty sure that the G&F budget cannot support this type of damage award across the entire state and I am pretty certain that no insurance company would ever pay out 3.5 times your proven losses and certainly not 20 times proven losses.

    Perhaps Mr Longwell will get his wish to “wake up everyone in the Legislature”. I bet that the legislature and the stock growers came up with the current reimbursement model and the legislature could end it just as easily.

    Hunters and fishermen in Wyoming are the fiscal foundation of the G&F department and I am pretty sure they won’t be real happy about helping some millionaire turn a profit on his Wyoming hobby ranch.