State asks court to cut grizzly depredation award by $215,286

by Angus M. Thuermer Jr., WyoFile.com

and Leo Wolfson, Cody Enterprise

An arbitration panel exceeded its legal authority in awarding Hot Springs County rancher Josh Longwell $349,730 for stock lost to grizzly bears and other predators, the Wyoming Game and Fish Department has told a district judge.

In an application to modify or vacate the arbitration panel’s decision, a state attorney wrote that the three-member board should have given Longwell only $134,444, a difference of $215,286. The February court filing asks the judge to reduce the award or vacate the panel’s decision and appoint a new arbitration board. 

The application by Senior Assistant Attorney General David DeWald claims that two arbitrators effectively exceeded their powers, that the award contravened regulations and that the monetary award was unlawful, among other things. The application addresses the award the panel settled on with a 2-1 vote after a day-long hearing Jan. 27, 2020, in Thermopolis.

Longwell submitted a claim to the Game and Fish Department for $422,971 for stock losses in 2018. The agency awarded $89,498, citing rules and regulations that set compensation based on confirmed kills and multipliers that account for unrecovered losses. Longwell appealed to the agency’s governing commission, which rejected his claim again, sending the matter to a Hot Springs County arbitration board.

Longwell is preparing a response to the state’s court action, he told WyoFile. The state’s compensation system vastly under-compensates ranchers for their losses, the rancher has told the Game and Fish Commission and the arbitration board in separate, emotional appeals. Instead of paying stock growers up to three-and-a-half times the value of an animal for every confirmed loss, the remuneration should be up to 20 times, he argued.

“The intent of the law is to pay the damage,” he told WyoFile. “The way the Game and Fish is doing business is not right.”

The arbitration panel came up with what it felt was fair compensation, he said. “It’s not just about dead calves, it’s about paying full damage.”

Longwell’s troubles with predators erupted in 2018 on the HD Ranch he manages for his father-in-law along Owl Creek west of Thermopolis. The ranch’s private property intermingles with public lands and stretches for more than 20 miles from the creek-bottom ranch headquarters to hills on the border of the Shoshone National Forest.

The ranch operates on the lowlands during the winter and grazes stock higher up during the summer. Longwell raises sheep and cattle.

Conservationists fear Longwell’s 2013 introduction of sheep to the public/private range is an ecological time-bomb that could decimate the largest metapopulation of bighorn sheep in the lower 48 through disease transmission. Some have accused Longwell of holding the wild sheep hostage, using the prized herd as a bargaining chip in his dealings with the state, claims which Longwell has denied. 

The rancher called Game and Fish repeatedly in 2018 to report stock kills by predators. Wildlife officials responded to document and confirm, when possible, whether and what type of predator killed the stock, the type of stock killed and the setting in which the predation took place.

Those elements play into the formulas the agency uses to determine what compensation it should make to the stock owner. The Wyoming Legislature empowered the Game and Fish Commission to regulate compensation after lawmakers ceded the department’s sovereign immunity — a legal construct that insulates governments from claims — in the cases of depredation by big and trophy game animals.

Game and Fish rules allow various amounts of compensation, according to circumstances. For calves confirmed killed by a grizzly bear on open range, for example, Game and Fish rules allow compensation at a rate of three-and-a-half times the calf’s value. Derived from studies, stock-owners’ experience and other information, the compensation formula seeks to account for undiscovered losses that are probably the result of predator depredation.

For the multiplier, the formula requires that the rancher be short those three and a half animals at the end of the season, an accounting the department takes on face value from ranchers’ reports.

In different landscape settings, the multiplier changes or is not applied. Losses in a pasture where carcasses are easily discovered, for example, would not carry a multiplier.

Longwell based part of his claim on a multiplier of 20 for some lost calves. He also claimed a multiplier for sheep where department rules don’t allow one. He has cited a paper and study that supports a higher multiplier than what the Game and Fish uses.

In front of the arbitration panel and Game and Fish Commission he justified the higher multiplier in part because of costs — from fuel to time and loss of stock weight — caused by predators’ harassment.

“Putting a multiplier on the calf is the only way I can [recoup] that,” Longwell told the panel. “This is the only avenue I have to get my money back.”

One Game and Fish official told the panel Wyoming’s compensation model was “probably the most liberal compensation program in the world.”

The two sides disagreed on other aspects of Longwell’s claim, but none with as much at stake as the calf multiplier. The department confirmed the predatory loss of 13 steer and seven heifer calves. It determined the three-and-a-half factor could be applied to those because of the open-range setting and Longwell’s tally of 294 calves missing at the end of the 2018 season. 

Game and Fish and Longwell valued steer calves at $936 each and the heifers at $758 each.

“Mr. Longwell argued that he should be awarded a 20 times loss multiplier for his calf losses to ‘send a message to the state’ and ‘send a message down here to Cheyenne,’” the state’s recent court filing reads. “In his opening statement Mr. Longwell told the [arbitration] Board, ‘the compensation ratios they use are out of line. They might have worked 25 years ago, but they don’t work today.”

The arbitration board’s verdict form, signed by only two of the three members, did not apply a multiplier to Longwell’s losses but did award him far more than the Game and Fish allowed. Each side in the dispute picked one panel member, and those picked a third. All came from the roll of registered Hot Springs County voters.

“The Board 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 amount,” the state’s court filing states. 

“After the Department argued the Board was without authority under the regulation to give Mr. Longwell a 20 times loss multiplier, the Board reached functionally the same result [as using a multiplier] by awarding Mr. Longwell the value of every calf he claimed was missing,” the state wrote.

“The Board deviated from the regulation which has the force and effect of Wyoming law when it awarded a higher amount for calf loss that was unsupported by the undisputed facts,” the state filing reads. “In doing so, the Board apparently accepted Mr. Longwell’s argument that it should ignore the law to ‘send a message to the State,’” the filing reads.

“[I]t was not the role of the Board to determine what the law should be — its role was limited to apply what the law provides,” the state wrote.

The state filed its application in Hot Springs County District Court where District Judge Bobbie Overfield in late May reassigned the case to District Judge Bill Simpson in Cody. The case and files, however, remain in Hot Springs District Court.

As Longwell’s claim and appeals work their way through the system, the rancher said he’s starting to see another season of depredation. “I’ve got yearling steers killed this year by grizzly bears,” he told WyoFile. “Seven years later [since predation began] we’re still in the same boat.”

Game and Fish has confirmed one kill this year, he said, and the hide of another steer is being examined by investigators.

Last year the HD Ranch suffered between $50,000 and $70,000 in losses, he said. But Longwell missed the claims-filing deadline for the 2019 season, he said, and won’t see any compensation for those losses. The claims and appeals process have delayed any payment for his 2018 losses, he said.

Longwell believes he’s fighting not only grizzly bears but the system, he said.

“The deep state in Wyoming is as big as it is in Washington,” he said. “We’re going to put them on notice the grizzly bears are trespassing on private property. They’re taking private property — my grass, my sheep, my cattle.”

Update

Longwell contacted the Independent Record editor/publisher on the morning of Tuesday, June 16 and advised he had two fresh kills in the cattle herd. He stated he had contacted Wyoming Game and Fish and officials would be arriving that day to determine the cause.

“So my day is shot, this is now how I am spending a day when I should be getting other things done,” said Longwell.

Longwell went on to say this isn’t just a ranching issue. “It affects sportsmen, too. The elk, moose and deer numbers are decreasing because of predators,” he said. He added that sportsmen should be concerned because the decrease in numbers will mean less opportunities for them.