A Hot Springs County rancher who lost dozens of sheep and numerous cattle to grizzly bears in 2018 asked a judge Wednesday to honor an arbitration panel’s award the state says is more than $200,000 too much.
Josh Longwell’s Cheyenne attorney Drake Hill asked District Judge Bill Simpson not to vacate or modify an arbitration panel’s award, saying the three members were justified when they arrived at $339,730 for stock lost to grizzlies and other predators. Attorneys representing the state and the Wyoming Game and Fish Commission claim the Hot Springs County panel in 2020 exceeded its authority and awarded Longwell $215,286 more than laws and regulations allow.
The arbitration panel in essence said, “we … don’t think it’s appropriate that the Game and Fish be able to limit the damages … we are going to fashion a remedy,” Hill argued.
That remedy, however, can’t exceed the formula designed by the Game and Fish Commission under state law, Deputy Attorney General James Kaste told Simpson. The Legislature empowered the commission to set rules for damage claims, rules that have the effect of law and must be followed as such, Kaste argued.
“The arbitrators’ error here was in disregarding the rules of law,” he said, describing the panelists’ 2-1 decision as “a manifest mistake.”
“Animals can be lost on the range for many reasons, other than being killed by a trophy game,” Kaste said. “And the money used to pay these claims is public money, and the Legislature and the commission have a responsibility to make sure that these public funds are not handed out [without] checks to ensure that the damages have actually … incurred, and that they actually relate to the actions of trophy game.”
Game and Fish investigates killings
The Wyoming Game and Fish Department and Commission compensate landowners for verified damage caused by game, including carnivores classified as trophy game, and according to formulae adopted over years of study and documentation. Game and Fish had agreed Longwell should get money for cattle that agency personnel verified as being killed by a grizzly bear, plus a 3.5-times multiplier to account for missing stock that was also probably killed by trophy game.
Game and Fish won’t pay for more stock than a rancher is missing, so regulations require stockmen and women to sign affidavits certifying their total stock losses at the end of a grazing season. That’s then compared to losses verified by the agency, adjusted by the 3.5 multiplier, to ensure public money isn’t being spent to compensate for stock that never existed in the first place.
When it deliberated in Thermopolis in 2020, the arbitration panel considered two sets of figures regarding missing stock that were at the center of Wednesday’s hearing. One was a list of losses to carnivores verified or certified by Game and Fish investigators — plus the 3.5 multiplier. The other was the total season losses tallied by Longwell.
Because Longwell signed an affidavit swearing to the number of missing animals, Hill called that figure “verified.”
Game and Fish arbitration regulations shouldn’t stop the panel from making “an independent determination,” Hill said. That determination was “we’re going to go [with] the number that the landowner verified,” Hill said, paraphrasing the panel’s decision.
Wyoming appealed the panel’s award in June 2020, seeking to modify it or to vacate the decision and allow a new panel to reconsider the case.
Simpson, a Cody judge who presided over the case after it was transferred from Thermopolis, took the issue under advisement and will rule sometime after he closes the record in a month, he told the litigants Wednesday.
He heard more than an hour of arguments. Longwell’s attorney Hill cited U.S. and Wyoming Supreme Court decisions and other precedent that set a high bar for overturning an arbitration panel’s decision.
“The issue is whether the Game and Fish can broadly constrain the arbitrators and control arbitration awards, whether the Game and Fish has that authority over matters placed before arbitration panels,” Hill said.
“Why would we have an arbitration panel at all, if the final word was with the Game and Fish?” he asked. “There [would] be no need.”
Instead, lawmakers sought independent decision-makers when they set up the system and stipulated they be qualified electors in the county where the damage occurred, Hill argued. Lawmakers essentially said, “we don’t want these decisions simply made in Cheyenne,” he said. “They wanted these decisions made locally.”
Panel can adjust, somewhat …
Kaste said the arbitration panel could legally make numerous adjustments from a Game and Fish Commission damage award. In Longwell’s case, it did that in several instances and the state did not contest some of those adjustments.
Longwell’s claim included requests for compensation for sheep, lambs and cattle allegedly killed by a variety of carnivores in a variety of settings. Each situation triggers different reimbursement calculations under Game and Fish regulations.
Longwell claimed $422,971 in damages. The agency awarded $89,498. The panel increased that to $339,730.
The state agreed to some of the panel’s adjustments, bringing their compensation offer to $134,444. That left a difference of more than $200,000 between the panel’s award and what the state believes is legal.
In his appeals to the Game and Fish Commission and the arbitration panel, Longwell made arguments for more money based on everything from common sense to the U.S. Constitution and a 20x multiplier that he said was fair. The record includes numerous photographs of mauled, dead stock, including one of a pile of dead lambs. Longwell characterized the depredations as a taking of private property for public use — Longwell cattle sustaining grizzly bears.
The arbitrators “simply took all the calves Mr. Longwell claimed were missing or lost during 2018 in addition to the losses confirmed by the Department, and compensated him for that,” the state complained in its written appeal. Instead, laws limit compensation to up to 3.5 times the value of losses verified or certified by Game and Fish investigators, the state contends.
“The court can and should correct such errors,” Kaste said in Cody, “because the arbitrators awarded on a matter not submitted to them.”
Not so, Hill argued.
“The United States Supreme Court has drawn a nice test surrounding this issue,” Hill said. The Supreme Court says “that the arbitrators’ actions must draw their essence from the statute.
“The essence here are the landowners’ or the livestock owners’ … losses of livestock and that’s exactly what was placed before the arbitration panel.”