Montana Republicans lose battle against American Prairie Reserve's bison

Darrell Ehrlick, Daily Montanan
October 14, 2022

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A federal administrative law judge has denied appeals by both Montana Gov. Greg Gianforte and a separate one filed by Montana Attorney General Austin Knudsen that disagreed with a decision by the Bureau of Land Management to extend and add leasing acreage for American Prairie’s bison herd.

The state, in several separate appeals, challenged the BLM’s decision to continue leases it currently holds with American Prairie, and one new leased parcel. Knudsen and Gianforte argued that fencing requirements were inappropriate, that bison could spread disease to cattle, and that allowing American Prairie would economically cripple the area, including Phillips County.

However, Judge Veronica I. Larvie denied the appeal, saying that neither Gianforte nor Knudsen had presented specific evidence to support their claims.

The appeal is another chapter in a long simmering battle with Gianforte and Knudsen opposing American Prairie’s vision of restoring prairie land by private land acquisition and leasing, as well as creating more public access to land and hunting, and adding bison herds. Gianforte and Knudsen have routinely opposed the organization’s plans, saying that it harms Montana’s agricultural community by taking land from commercial agriculture production and shifting it toward conservation.

Neither Knudsen’s office, nor Gianforte’s office immediately responded to a request for comment on this story.

While Larvie said that the BLM’s findings and plans for fencing were at times unclear and possibly even contradictory, that alone did not invalidate the permit or create enough of an issue for Montana to warrant staying, or stopping, the agency’s decision.

“(Gianforte and Knudsen) have not prevailed on their burden to show that there is a likelihood of immediate and irreparable harm, therefore their stay petitions must be denied,” the 40-page ruling said.

Repeatedly both Knudsen and Gianforte raised concerns about the requirements of the Taylor Grazing Act, which governs livestock grazing and production on publicly owned land. However, Larvie dismissed concerns quickly.

“They fail to marshal facts or legal authority to show that these inadequacies would be successful in a merits review,” Larvie said.

The judge also found that the state’s argument about economic harm done because of bison grazing compared to commercial cattle production unconvincing.

“(The state) does not attempt to provide any detailed comparison of the monetary contributions of an operation like APR’s current cattle operation in the four allotments with those of a non-production bison operation,” she pointed out. “The net result is that the record does not adequately show the extent of economic harm, if any… Appellants bear the burden of making this showing and they have failed to do so.”

Knudsen and Gianforte also raised the specter of disease transmission from bison to domestic cattle, therefore jeopardizing the economic health of central Montana. In a lengthy discussion about the different diseases and research, Larvie said the state had failed to make a convincing case, rooted in scientific and animal management research.

“They offer no evidence or analysis to show that the disease would likely be transmitted to humans,” the judge said. “In sum, appellants have failed to show that immediate and irreparable harm is likely from disease being transmitted from bison to wildlife, cattle, or humans.”

Knudsen also argued in his appeal that bison, because of being fenced in on the grazing tracts, will cause more environmental harm than cattle, and that the fencing decisions made by the BLM will only exacerbate the overgrazing.

“The Attorney General also argues that Montana’s public lands will be irreparably damaged, but without explanation or evidence to support this dire prediction,” Larvie ruled. “More importantly, the Attorney General presents no evidence to support his conclusion that the bison will overgraze and damage the range.”

Leaving the door open for a legal challenge

However, Larvie in her ruling, did suggest a legal path to challenge the BLM ruling.

“(Gianforte and Knudsen) rightfully express confusion about the specifics of BLM’s fencing plan and their inability to decipher what range improvement projects will occur where and what the final outcome will be. The fencing specifications are not immaterial or of little concern to the interested public or of negligible potential to the environment,” she said. “Appellants raise concerns about whether fencing can simultaneously be both wildlife-friendly and effective at containing bison.”

“It raises concerns whether BLM’s ultimate decision was ‘fully informed and well-considered’ As such this is ‘fair ground for litigation and more deliberative investigation.’”

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