Market value of a trophy Montana whitetail.
A difficult question, it is.
In a recent post on ECW, Rob questioned the constitutionality of fines/restitution the State of Montana imposed for the illegal shooting of a whitetail buck by a Stevensville man. The question intrigued me, and I did some research on the issue. Honestly, I found the results a bit disapointing.
MCA 87-1-115 states “the purposeful or knowing illegal killing, taking, or possession of a trophy animal listed in this section shall reimburse the state for each trophy animal” which animal is an “antlered deer with at least four points on one antler as defined by commission regulation, $8,000;” and which is in addition to any other penalties imposed by law.
Rob noted that “If the market value of the animal is, say, $1,000, then the court will consider the excess $7,000 to be part of the fine, no matter what the statute says.”
We agree that the market value of the animal is a key factor here. So how is the market value defined? I would argue that the “commission” set the statutory value based on what the State can prove as the ecomonic value of an animal. However, I cannot find how the State set that value, and what the basis for that set amount is, so it I can’t really argue that. I also cannot find any case where the actual value is disputed and figured.
I did find several court cases where the monetary value of hunting crimes is disputed for one reason or another, and they typically refer back to MCA 87-1-115 (statutory value) or MCA 87-1-111, which states in part “A hearing to determine the amount of restitution, as required under 46-9-512, is not required for an order of restitution under this section.”
(Emphasis added.)
(The relevant portion of MCA 46-9-512 states “Whenever the court believes that restitution may be proper, the court shall order a hearing for the purpose of considering the nature and extent of the victim’s pecuniary loss as defined by law.”)
Many of the cases I have found and reviewed involved violations of the Lacey Act. In this case, I found a couple of interesting observations by the Court. At paragraphs 17 and 21, there is discussion on valuing animals, significantly, that valuation is in the hands of jury, and “Atkinson has produced no evidence that Montana intended section 87-1-111 to define the market value of deer taken in violation of state law. Nor do the fines established under this code section appear to bear any resemblance to the actual market values of the animals listed.” (Atkinson was arguing that he should be fined the statutory $300 instead of the rates he charged for guiding the hunts as a base for the value of the animals. He lost.)
I have found formulas several other states use to value trophy animals, typically on sliding scale based on the Boone & Crockett score of the animal. (There is no difference in B & C score and Pope & Young score. P & Y is for animals taken with a bow, but the actual score is the same.)
Based on those formula, the restitution for this buck was high. However, there are several other issues to consider when trying to place a value on Montana deer, as opposed to other states. A guided hunt for a Texas Whitetail scoring over 151 SCI will typically cost over $5,000.00. (Example) SCI stands for Safari Club International. The SCI scoring system does not impose deductions for discrepancies in symmetry of a rack, and most relevant, allows animals shot in captive hunts to be scored as trophys.
Neither P & Y or B & C allow any animal raised in captivity or harvested in a fenced enclosure to be scored and listed in their books. A Montana whitetail, taken under the traditional “fair chase” concept could certainly be considered more valuable to the state and it’s people than an animal raised in captivity for the purpose of being shot, where the benefit is for the owner of the animal, not the State… That, however, is an ethical issue I will not delve into further. I only bring it up because Montana does not allow game farms, does not allow feed plots for the purpose of raising larger game animals to be harvested as trophys, and does not allow captive wildlife to be harvested for profit.
In fact, I have found so many variables involved in valuing a Montana trophy animal, I have come to the conclusion that we as a state need to clarify this issue.
The Montana State record mule deer, (owned by the State of Montana), was illegally shot and spent several years sitting in the FWP directors office. It was potentially valued at between $30,000 and $40,000. It cost Kelly Frank $9,500 restitution/fines and 5 years in jail, and he only got the jail time because he waas a repeat offender.
Some may not agree with hunting as a whole, or trophy hunting specifically, but it is impossible to deny the economic impact hunting has on our state, and many others. It does seem to me, however, that Montana could do a little work to safeguard itself against the type of challenge Rob contemplated with his question. Right now, I question if our laws would be sufficent. I guess we will see - when a poacher wants to challenge the constitutionality of our state laws.
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