A Honkin’ Big Deer Barbeque in Montana?

        Closing out 2008, on December 31, the Montana Supreme Court filed a humongous opinion in Kafka v. Montana Department of Fish, Wildlife and Parks, No. 2008 MONT 460, upholding as against a taking challenge a state statute that forbids owners and operators of game ranches to charge fees for allowing others to hunt game on their land, thereby putting out of business a number of Montana game ranches. The majority opinion rehearses the familliar judicial shibboleths underlying the majority rule that holds business losses to be noncompensable in eminent domain in spite of the fact that they are compensable in all other legal contexts. If you are of a scholarly bent, you should know that Professor D. Michael Risinger of Seton Hall University School of Law wrote an aricle in 1985, entitled Direct Damages: The Lost Key to Constitutional Just Compensation When Business Premises are Condemned, 15 Seton Hall Law Review 483, in which he not only demonstrated the lack of a respectable doctrinal basis for the rule of noncompensability of business losses, but he also reviewed all pertinent commentaries and treatises written in the 20th century, and demonstrated that, save only for one student note, no legal scholar or treatise writer has endorsed the rule of noncompensability of business goodwill in eminent domain.

          The piece de resistance of the Kafka, decision is the 60+ page dissent by Justice Nelson, joined in by Justices Rice and Swandal, that demolishes the majority arguments. A good read, that. For our own views on that subject, see Gideon Kanner, When Is “Property” Not “Property Itself”: A Critical Examination of the Bases of Denial of Compensation for Loss of Goodwill in Eminent Domain, 6 Cal. Western Law Review 57 (1969). An oldie but a goodie, if we do say so ourselves.

                  So what happens now to those poor Montana screwees? They can petition the U.S. Supreme Court for certiorari — a chancy proposition at best. So what’s left? We suggest one hell of a deer barbeque. There is nothing in that Montana statute prohibiting that. The game ranchers are only forbidden to charge others for hunting game on their land. It does not prohibit eating the critters, nor charging members of the public for deer barbeque.

         We could say that the Kafka majority opinion is Kafkaesque, but we won’t. The rule in question does not rise to that level, either doctrinally or — certainly — morally.

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