Finding wildlife a "condition of property," a Montana judge has dismissed a widow's claims against the state for failing to protect her husband from a grizzly bear that fatally attacked him while he was hunting in a wildlife refuge.

Mary Hilston caused quite a stir in the hunting community by suing Montana Fish, Wildlife & Parks for wrongful death. Rangers at the Blackfoot-Clearwater Wildlife Management Area violated their own policy, she claimed, by not warning hunters that a "nuisance bear" had been reported.

The 400-pound animal attacked Timothy Hilston in October 2001 as he was gutting an elk he had shot.

But the plaintiff could not overcome a Montana law under which the owner of land used for recreational purposes owes "no duty of care with respect to the condition of the property" unless the injury to the recreational user results from the owner's "willful or wanton misconduct."

Granting summary judgment to the state, Cascade County District Judge Dirk Sandefur said in a bench ruling that "as a matter of law ... the state owed Hilston no duty of care to protect him from the grizzly bear attack on state land."

"[W]ildlife, including grizzly bears, are a condition of the land," he explained, and there was "no factual basis beyond the allegation of the complaint that the State was actively engaged in the management of the bears at issue in this case."

A federal judge removed the case to state court after Mary Hilston initially filed in U.S. District Court. She has already appealed the summary judgment order to the Montana Supreme Court.

"Even though it's a terrible tragedy, it's our position that when you go out hunting, you take the risks inherent to the wild," an attorney for the state told the Great Falls Tribune.