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This winter, American Prairie had plans to begin fencing its bison out of one section of state land in Phillips County.
The work is a requirement after the state Department of Natural Resources and Conservation in October denied the nonprofit conservation group a grazing lease on 3,651-acres of state lands within the Whiterock Coulee grazing allotment.
The state’s decision was a reaction to the Bureau of Land Management’s determination in July to allow American Prairie’s request to graze bison on 63,500 acres of public land in north-central Montana. The state of Montana — including Gov. Greg Gianforte and Attorney General Austin Knudsen — along with the Montana Stockgrowers Association and the North and South Phillips County Cooperative State Grazing Districts, appealed the BLM’s decision. In October, an Interior Department administrative law judge denied the appellants request for a stay of the decision.
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In the ruling, Judge Veronica Larvie wrote the state’s request for a halt to implementation of the grazing lease changes was “undermined” by the fact that American Prairie holds another state lease “that authorizes bison grazing.” That lease was granted when a different governor was in office.
Larvie also noted, “BLM’s analysis is supported by the fact that the (pre-existing grazing allotments) have been meeting rangeland health standards while being grazed by bison and that changes will be made if monitoring discloses any problems.”
Appeal
On Nov. 14, the state and ranching groups appealed the administrative judge’s decision. A BLM spokesperson said the appellants have until Dec. 23 to submit their legal briefs. The BLM then has until Jan. 23, 2023, to respond.
The Department of the Interior's Board of Land Appeals will decide the appeal "promptly," the spokesperson added.
American Prairie’s goal was to have the state section fenced out by April 1, in time to turn a portion of its bison herd onto the southern third of the Whiterock Coulee allotment — about 15,000 acres of BLM and deeded land, according to Scott Heidebrink, director of bison restoration.
“We’re working with everyone to try and figure out what we can do there,” Heidebrink said.
Montana's landowners are only required to fence in livestock like pigs, sheep, llamas, horses and bison — to name a few — but not cattle. When it comes to cattle in this state, landowners have to fence out their neighbor’s cows.
State ban
It was in an Oct. 27 letter that DNRC area manager Clive Rooney wrote to American Prairie notifying the group that despite the BLM’s grazing lease approval, the state would not allow the group to graze bison on two state leases within the allotment “until the challenges related to BLM’s decision conclude.”
In the letter, Rooney also told American Prairie it “may not proceed with construction, modification, or electrification of fences” on the state leases. However, the conservation group can still graze bison on the two other state leases where it was previously authorized.
Rooney would not talk to the Billings Gazette without approval from the state office. A request for that approval was not received by the time this story was published.
In the past, it’s been almost routine for the DNRC to accept the BLM’s decision when it came to grazing leases, former state officials told the Billings Gazette. Al Nash, chief of communications for the BLM’s Montana/Dakotas State Office, said it’s up to the state to decide whether to accept the BLM’s environmental review.
“They have done so in the past, therefore those state allotments were included in the lands that were analyzed in our (environmental assessment) regarding American Prairie's request,” he wrote in an email.
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Bison ranching
Bison rancher Chris Bechtold, president of the Montana Bison Association, is concerned the state’s actions regarding American Prairie may signal a new precedent. He leases 3,000 acres of DNRC land for his Diamond 4D Ranch near Choteau, where he grazes bison.
“There seems to be a significant amount of prejudice against bison ranchers from the state,” he wrote in an email.
Perhaps the largest lessee of state lands for bison grazing is Turner Enterprises Incorporated, founded by former media mogul Ted Turner. According to a Montana Department of Livestock graphic depicting bison populations by county in Montana, Gallatin and Madison in the southwest corner of the state — where Turner owns large ranches — showed the highest bison counts in 2022, more than 2,000 head in each county.
In comparison, the department identifies 15 counties in the state with more than 50,000 cattle and another 17 with 25,000 to 50,000 cattle.
Mark Kossler, vice president of ranch operations for Turner, said his company is not worried the state may take a similar stance toward its bison operations. He wouldn’t say how many state acres Turner Enterprises leases, and the DNRC said it does not break down its grazing leases by the type of livestock.
When asked why he’s not worried the state may treat Turner Enterprises the same as it does American Prairie, Kossler declined to comment, saying he didn’t want his company dragged into the controversy.
The Bureau of Land Management on Thursday issued its final decision approving American Prairie’s request to graze domesticated bison on 63,500 acres of public land in Phillips County.
Law
University of Montana law professor Michelle Bryan reviewed the letter the state sent to American Prairie, noting under state statutes the DNRC has “broad discretion” to prioritize different uses on state trust lands.
“That said, lands within grazing districts (which I assume is the case here) are most logically leased for grazing and the state isn’t suggesting that other non-grazing uses would be a higher and better use on these parcels,” she wrote in an email.
She also noted the DNRC’s letter did not cite any statutory basis for its decision, instead referring to its challenge of the BLM’s decision as the reason. Yet Bryan said, “Waiting for federal litigation to conclude is not a statutory basis for denying a use under the trust land statutes.”
She referred to the letter as “a bit of a head-scratcher.”
The DNRC is also mandated to optimize income from state trust lands. According to the agency’s website, the DNRC currently has 8,100 grazing agreements for 4.1 million acres of trust land in Montana.
Ranchers
The decision to deny American Prairie grazing leases on the state acreage has been hailed by the Montana Stockgrowers Association.
“We would like to thank Governor Gianforte and his administration for their leadership and continued perseverance on this issue,” said Jim Steinbiesser, Montana Stockgrowers Association president, in a press release. “We stand with the state and agree there are deficiencies within the BLM Environmental Assessment and final grazing decision. The decision to not approve grazing on the two allotments based on the BLM EA is the right decision.”
In an interview, Steinbiesser said this is “not so much a bison issue” as it is the BLM making what the Stockgrowers see as special accommodations. American Prairie requested grazing be allowed year-round on some allotments, and wants to remove some interior fences to allow bison more freedom to roam the grassland, mimicking natural grazing.
Allowing bison to graze longer and to have their movement less restricted flies in the face of past controls the BLM imposed on cattle ranchers under the Taylor Grazing Act to improve the range, Steinbesser said. Although American Prairie would be required to meet range standards set by BLM, Steinbesser said those can be subjective. Calling American Prairie “the new kid on the block,” he added that his group wants them to follow the same rules ranchers have adhered to for decades.
Montana’s Republican Sen. Steve Daines and Rep. Matt Rosendale echoed praise for the state’s stance in press releases issued by their offices. Both said the BLM’s decision was driven by the Biden administration and disregards historical grazing practices.
Yet the state’s appeal to the Department of Interior was denied by a Donald Trump appointee.
In the past, members of the Bozeman-based Property and Environment Research Center have decried Montana lawmakers’ attempts to single out American Prairie. In a 2019 article, three PERC members wrote, “It is disappointing to see conservative lawmakers attacking (American Prairie’s) property rights and trying to weaken public grazing rights.”
The article went on to say, “To attack its property rights — or to use state resources to formally rebuke the good-faith efforts of a law-abiding conservation organization — is to undermine the property rights of everyone, including other ranchers that rely on public grazing rights.”
A PERC spokesperson said the article still accurately reflects the group’s perspective.
Going forward
As yet another controversy over American Prairie and its bison herd simmers in Phillips County, the nonprofit continues to advance its goals where possible. To that end, Heidebrink said a mile of fence would be built between American Prairie’s deeded land and one of the state sections where bison grazing has been denied. Fences already exist to the north and south of the state section. He hopes a resolution can soon be found on the one-mile of fence along the state section’s eastern boundary that borders BLM property.
The fencing contractor American Prairie uses can have a wildlife-friendly fence built along that border in a few weeks, Heidebrink said, at a cost of about $7,000 to $8,000.
The northwestern portion of the Whiterock Coulee allotment — where other contested state lands are located — account for about one-third of the total animal unit months (AUMs) for the allotment. AUMs are used to designate the amount of grazing an allotment can sustain. This northern portion is already fenced off and won’t be immediately used, Heidebrink said, although it does figure into the group’s future plans for bison grazing lands.
“We don’t need that immediately,” Heidebrink said. “But we need those other (BLM) acres to the south.”