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Gianforte, Knudsen try to stop American Prairie’s bison through political pressure

Biology, law may be on conservation group’s side, but that’s not stopping leaders from pressuring the BLM
Posted at 11:45 AM, Dec 06, 2021
and last updated 2021-12-06 13:45:21-05

One of the most common observations made by early European explorers in Montana was the immense buffalo herds and the Native people who hunted and used the huge animals.

A 2016 article in the Intermountain Journal of Sciences by James A. Bailey chronicles the observations.

The Crows were reported to kill “upwards of a thousand” bison in a day in 1824; meanwhile George Catlin recorded 500 Shoshone tribal members slaughtered more than 1,400 in one day in 1832.

Yet as tribes and Montana begin to see more bison repopulate a state where they were once taken by the hundreds, two of the state’s top officials, along with heads of several key state agencies, want to put a stop to a private nonprofit organization’s attempt at placing small bison herds on lands where the animals once roamed.

American Prairie, formerly known as “American Prairie Reserve,” has purchased thousands of acres throughout Montana and has had grazing leases that have been tied to the lands for years. That’s why when it came to renewing those leases through the federal government’s Bureau of Land Management, the organization wasn’t expecting the furor that came from state leaders.

When the BLM’s own assessment determined that no significant harm would come from the grazing or leases, Montana Gov. Greg Gianforte, along with the leaders from the state’s department of agriculture and the Wildlife, Fish and Parks as well as Montana Attorney General Austin Knudsen, objected, urging the federal leaders to reconsider and hold more public meetings.

When the BLM, which had used a standard public comment period and public meeting, rebuffed the state leaders’ requests, Knudsen held his own public comment meeting and rejected an offer from American Prairie to meet, leading to an ongoing cold war in which the same leaders criticizing the nonprofit also refused to engage in conversation, leaving little more than an exchange of inflammatory letters and accusations that bison conservation will lead to the death of cattle ranching in central and northern Montana.

Gianforte and Knudsen were both contacted for the story, and neither office responded to requests for interviews.

The case of science vs. politics

When the BLM released its findings of no negative impacts for the grazing leases, that set into motion a concerted effort by state leaders to get the federal government to reconsider. At the heart of the argument is a disputed theory that federal grazing law did not allow for bison, rather only animals raised for commercial ranching, like cattle and sheep. Bison have also been raised in Montana for commercial production for decades.

Meanwhile, outside the legal process, ranchers opposed to American Prairie worry about escaped bison or the spread of disease. Yet scientists who study bison say that question – a recurring one in debates in Montana – has been largely settled in favor of the two animal species successfully living together without harming each other.

While the BLM and the federal government are standing by their public comment and input, as well as their findings regarding the grazing leases, the state may not be able to stop the federal permits, but it could make it more difficult to manage them.

Federal public lands have a checkerboard pattern of state lands intermixed among them. As a matter of law, the two are separate, but in practice, state governments often defer to the federal Bureau of Land Management to help manage lands that it technically owns on behalf of the state, but is surrounded – often like an island – in a sea of federal public land. That makes sense because animals don’t just graze according to land boundaries without fencing.

Yet separate management is one of the options the state of Montana said it would consider if the BLM doesn’t take more input. Technically, Montana could decide to wall off or separate its public grazing lands, but that would take thousands of dollars in fencing, something that, even with money from grazing leases, would likely not even pay for itself in the first 20-year lease. Moreover, the state would then have to decide how to manage its portion of the land, including access for any other leaseholders.

This is the first time some of the leases have come up with American Prairie as the leaseholder tied to the land.

Bovine vs. bison

While the conversation about bison and American Prairie has largely boiled down to bison conservation versus cattle ranching, the science on that is no longer in doubt.

Sam Fuhlendorf is the regents professor and Groendyke chair in wildlife conservation at Oklahoma State University. He works around the country with both conservation and ranching efforts, studying both animals.

He admits it’s hard to compare them because they’re very similar. They both forage and utilize similar food. One of the biggest differences, though, is “thermal stressors.” Cattle become stressed in high heat and chilly temperatures.

“Bison show extreme thermal tolerance,” Fuhlendorf said.

That means the blasting summer sun of the Montana prairie isn’t as big of a threat for bison, and neither is the prolonged cold of an intense winter.

Both can co-exist. Both can exist on the same land.

“They’re both big, bulk roughage eaters,” Fuhlendorf said.

As for managing bison versus managing cattle – Fuhlendorf, whose research is in range management, said it’s all a matter of managing. Bison range managers can be just as detrimental as cattle range operators. He said sometimes when a bison wallows in dust, people tend to view it as a spiritual experience, but when a bovine cow does it, it’s dirty. He said there’s nothing inherently bad or good about either, just small differences that depend on the management.

“Really, when we’re talking management, we’re talking about the middle,” Fuhlendorf said. “We want to make sure nothing is too heavily grazed and nothing is too little.”

He said the one difference in management is that bison, because they haven’t been domesticated like cattle, can get a reputation of being harder to handle.

“There’s nothing magically good or evil about bison, though,” Fuhlendorf said. “The most important decision is how many animals will be out there. For bison – if a bison can get out, it will. But the key is not making them want to get out of wherever they are.”

As for the politics of bison in Montana – that’s something that not even studying the animals for decades has given him a clear handle on. A sign that’s popped up throughout central and northern Montana that says, “Save the Cowboy, Stop APR,” is one indicator of the tensions.

“Most of it is a red herring,” Fuhlendorf said. “At Wichita Mountain (cattle and bison) are in the same pasture all the time and none of the ranchers are troubled by the connection. Ranchers in quite a few other states just don’t have a problem.

“Ranchers, by nature, are conservative. But even if they wouldn’t do something with their property, they understand the rights of others because of private property.”

Follow the law

One thing that both sides agree on: The other side is not following the law.

In Gianforte’s letter to the federal agency, he said the BLM lacks the authority to issue a grazing permit for “domestic indigenous animals.” The governor also argues that using the grazing permits for “non-production-oriented, wildlife management” would rob other ranchers of economic opportunities.

Finally, Gianforte criticizes the BLM in a September letter for holding a public hearing session via remote meeting “in the middle of a summer afternoon when the vast majority of those affected were trying to wrest their livelihoods from a devastating drought.”

Pete Geddes, American Prairie’s vice president, told the Daily Montanan he’s still surprised by the amount of public rebuke they’ve gotten. That includes a public campaign complete with yard signs and banners that advocates ending APR. And Geddes says American Prairie used a conservative playbook by buying their own private property for grazing bison. And when it comes to Montana, he is still flummoxed by the opposition from Lewistown legislator Dan Bartels who was unsuccessful in an attempt to pass legislation that would have prohibited nonprofits from acquiring land – an idea that riled even some conservative ranchers in the area.

“We’re building a National Discovery Center in downtown Lewistown and creating jobs and tourism there. I would think he’d be interested in employees and in private land,” Geddes said.

Gianforte’s Department of Natural Resources and Conservation also objected during the federal open commenting period, noting that it has roughly 5,000 acres of the 155,000 acres of BLM and private land in question. Montana’s Fish, Wildlife and Parks division added a three-page letter of concerns, including concerns about transmitting disease and whether cattle and bison can co-exist. Two additional letters were submitted by the state, including the Department of Livestock and the Department of Agriculture, which largely restate the same objections, but bring the total number of pages opposing American Prairie to more than 30.

In a letter, AG Knudsen accuses the BLM of creating a new term not found in the Taylor Grazing Act.

“Now they’ve conjured a new classification – indigenous livestock – and insist that bison fit inside,” Knudsen said. “The law requires more than clever linguistic re-jiggering. APR doubtlessly paid a lot for the legal brain that suggested, ‘We only need to stop calling bison non-livestock and call them indigenous livestock.’”

He also accused the BLM of not adequately calculating the cost of allowing American Prairie bison to graze on federal and state lands, saying its analysis failed to recognize the negative impacts to ranchers and farmers.

“APR’s mission is to displace Northeastern Montana’s livestock industry and replace it with a large outdoor zoo,” Knudsen said. “APR’s my-way-or-the-highway approach is nothing more than a reflexive threat to subject other permits to burdensome administrative protests and is, to be polite, unneighborly. No wonder APR has generated intense local opposition to its efforts.”

But being neighborly, American Prairie contends, is a two-way street. They confirmed that they’ve reached out to both Gianforte and Knudsen, inviting them to see their operations, to ask questions, and to communicate. They said that neither has ever visited or accepted an invitation.

“The governor is very interested in public access and economic development and we are, too,” Geddes said. “In fact, we’d like to believe we’re partners. We’ve created high paying jobs. We’ve opened more area for engaging in Montana’s outdoors. He has a standing invitation to visit.”

The Daily Montanan sent several requests in the past month to talk to both the governor and the attorney general about their actions involving American Prairie and the battle over grazing. Neither office responded.

Geddes points out that American Prairie is so concerned about its neighbors that when it first set up operations, it had good-neighbor agreements with landowners surrounding it, saying that if APR didn’t manage to recapture an escaped animal off its property within 24 hours, the other property owner could shoot it. Never once has that happened, he said, because they try to respond immediately and have on-site managers.

He said it’s important to know that landowners who border American Prairie’s borders were not among those chiefly concerned with the permit.

“Once we’re people in the neighborhood, we’re not such a concern,” Geddes said. “We’re not going anywhere. We’re a Montana-led, Montana-based operation, and our intent is to be a really good neighbor.”

When Knudsen held a forum in Malta, according to the Glasgow Courier, he admitted that the BLM fulfilled its obligation for public comment, but claimed it was dominated by out-of-state interests. Knudsen also told audience members he was surprised that no one from APR showed up to the meeting he called.

However, officials at APR said they were not invited to the meeting and pointed out that five days before the meeting, the nonprofit organization sent a four-page letter outlining their position, including adding jobs and increasing public access. The letter offers to meet to discuss issues and also pointed out, “The Bureau of Land Management can issue grazing permits or leases and modify existing permits to substitute many different types of livestock for cattle, including bison. It has done this for several decades across the West.”

American Prairie also commissioned John D. Leshy and Justin Pidot to examine the legal issue for the organization and to examine the legal concerns raised by the state.

Leshy served as Solicitor General of the Department of the Interior from 1993-2001 and was a former law professor at the University of California. As cliché as it may sound, he literally wrote the book on public land law, “Federal Public Land and Resources Law,” which has been through seven editions.

Leshy and Pidot, a law professor at the University of Arizona, concluded that current laws do not define the animals that may or may not qualify for grazing permits, including cattle or bison. And that the mixed-use nature of the BLM means that some land that should be used for grazing, but it doesn’t make the determination of what kind of grazing, leaving it to department officials.

It points out that Montana and Knudsen have used old or overturned court decisions.

“Congress has made the Secretary (of the Interior) the landlord of the public range and basically made the grant of grazing privileges discretionary,” the analysis said. “(The) definition of ‘multiple use’ explicitly proves that a ‘range’ or livestock grazing is just one of many uses and values to be served by the public lands, along with such things as ‘wildlife’ and ‘natural scenic, scientific and historical values.’”

Leshy and Pidot fire back that even Montana law defines “livestock” to include bison.

They point out that in the BLM’s final environmental impact statement, which was revised in 2016, that “bison in private ownership are considered livestock.”

“The primary test in making this distinction is whether or not the animal qualifies as an applicant under the requirements of the grazing regulations,” the two legal scholars wrote. “The grazing regulations define qualified applicants and apply equally to all qualified applicants, regardless of class of livestock.”