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Supreme Court’s bison transfer decision a big win for landowners

Photo credit: USFWS

The Montana Supreme Court recently decided a lawsuit brought by landowner and multiple-use groups, including UPOM, against FWP for their transfer of Yellowstone Park bison to the Fort Peck Indian Tribe.  Our objection wasn’t that the bison were transferred, per se, but that FWP did not follow the law requiring landowner notification and collaborative planning before bison could be transferred.  We ultimately lost the case on the grounds that the legislature did not specify that that law applied to transfers to tribal property, in addition to public and private property.

However, we won on a much bigger issue.  In the decision, the Court pointed out that the bison in question were placed in captivity, and therefore no longer fit the definition of “wild bison.” Environmental groups have been proposing for years that Yellowstone Park bison that had been quarantined and proven brucellosis free could be used to establish a wild bison herd on public land in Eastern Montana.  But now that it is clear that quarantined bison cannot be called wild, then there are no bison available to establish a wild herd outside the Park.  We couldn’t have hoped for a better outcome in this case.

Specifically, Chief Justice McGrath zeroed in on the “wild” definition in his opinion, writing:

“Under the express terms of § 87-1-216, MCA, it applies only when ‘wild buffalo or bison’ are relocated to ‘public or private land in Montana.’ A ‘wild buffalo or bison’ is defined as a bison ‘that has not been reduced to captivity and is not owned by a person.’ Sections 81-1-101(6) and 87-2-101(1), MCA. The brucellosis quarantine bison involved in this case have been reduced to captivity for a number of years and therefore arguably are not ‘wild buffalo or bison’ as defined in Montana law, rendering § 87-1- 216, MCA, inapplicable to this case. The parties did not raise or brief this issue and it was not addressed by the District Court. Because the District Court based its ruling on an interpretation of the statute’s ‘public or private land’ language and because the parties focused upon that language in their arguments, we will consider it on appeal.” (emphasis added)

It’s important to point out that the definition of “wild bison” has two distinct criteria: “not been reduced to captivity” and “not owned by a person”.  In order for the definition to be true, both of those criteria must be true.  Because the Court has stated that the act of quarantining Park bison renders the first criteria false, then the “wild” definition no longer applies.

The distinction is very important.  If Park bison transferred by FWP are not considered wildlife, then some entity is responsible for those animals.  Someone is responsible for bringing them back if they stray onto neighboring property; someone is liable for any property damage that they cause.  Additionally, landowners that have problem with bison on their property could turn to the Department of Livestock or the county sheriff for assistance, instead of FWP.  If they were considered wildlife, landowners would have no recourse to seek compensation for damages to their property.

But the biggest implication of the decision is that it sinks plans by environmental groups to use Yellowstone Park bison to establish wild bison herds on public land in other parts of the state.  This issue is probably not completely settled, but at least for now landowners have a better legal position than we did prior to the decision.