The Montana Supreme Court has cleared the state of liability for a fatal attack on a hunter by a grizzly bear, finding that a change in state law did not affect the recreational use immunity of landowners.

Grizzlies are “a condition of the property” for which the state owed no duty of care to Timothy Hilston, the court ruled in affirming summary dismissal of his widow's controversial wrongful-death case.

Mary Hilston ruffled Montana's hunting community by alleging Montana Fish, Wildlife & Parks was liable for her husband's death in October 2001. A 400-pound grizzly attacked him as he was gutting an elk he had shot at the Blackfoot-Clearwater Wildlife Management Area.

The state's Recreational Use Immunity Act precludes negligence claims against a landowner arising out of the “condition of the property.” But Mary Hilston argued that the law was only “designed to protect landowners from typical claims of premises liability involving a defective condition in real property” and not from her atypical claim of negligent mismanagement of wildlife.

The Legislature, she noted in an appellate brief, had amended the law in 1987, deleting language that had granted broad immunity for “any act or omission” by any landowner. The revised statute “limited the provisions of the Act to defective property,” with “property” defined as “real estate and its fixtures plus machinery and equipment.”

“The statute does not define animals or animal management as property,” the brief said. “Thus, the provision in the statute regarding the 'condition of the property' can only refer to the real property and its fixtures as defined in the statute.”

But Justice Jim Rice, writing for the Supreme Court, disregarded Hilston's narrow interpretation of the statute.

“Grizzly bears are wild animals existing upon the property, and, as such, are a 'condition of the property' for purposes of Montana’s Recreational Use Immunity Act,” his opinion concluded. “Thus, the State of Montana owed no duty to protect Mr. Hilston from the grizzly bear attack that led to his unfortunate death.”

Hilston claimed wildlife officials were negligent in planting livestock carcasses in the refuge to draw bears away from the surrounding area. This policy, known as “chumming,” increased the risk of a bear attack on humans, she alleged.

The Supreme Court's decision dashes Hilston's last hope of compensation for her husband's death. She originally sued in federal court in September 2004, but a judge dismissed that case for lack of subject-matter jurisdiction under the Federal Tort Claims Act.