Montana Supreme Court hears bison relocation suit

MISSOULA, Mont. — Backers of a government-sponsored conservation effort to transplant Yellowstone National Park bison to tribal reservations in Montana say a state judge erred in blocking the relocations because state law doesn’t apply to moving bison on tribal lands.

Montana Fish, Wildlife and Parks, Defenders of Wildlife and the National Wildlife Federation made the argument Friday to the Montana Supreme Court in an effort to have lifted a state judge’s injunction last May preventing the bison relocations.

The Missoulian reported that Citizens for Balanced Use argued the injunction should not be lifted because Montana lawmakers considered tribal lands to be both public and private in creating rules restricting the release of wild bison.

Justices appeared skeptical about tribal lands being both public and private, but also wondered what court would have jurisdiction in dealing with tribes that failed to properly manage free-roaming bison.

Much of the Friday’s arguments centered on the 2011 Montana Legislature and Senate Bill 212 regulating the actions of state wildlife officials in moving bison.

“Is it your position that statute (Senate Bill 212) includes tribal land?” asked Justice Brian Morris. “Which one of those — public or private land — is tribal land? Is it private land or is it public land?”

Chad Adams, representing Citizens for Balanced Use, said tribal land was both, and therefore regulated by the state.

That prompted Justice Beth Baker to ask Adams if state lawmakers must expressly exclude “tribal” whenever it refers to public or private land while drafting law.

“The U.S. Supreme Court in Nevada v. Hicks suggested that ordinarily, tribal reservation land is included as part of the territory of the state,” Adams said. “When the Legislature was putting this together — saying public and private land — the common meaning of that word, to me, is all the land in the state of Montana.”

Tim Preso, an attorney for Defenders of Wildlife and the National Wildlife Federation, disagreed, contending lawmakers didn’t want to interfere with tribal decisions on wildlife kept within sovereign nations, which he said included free-roaming bison on reservations.

“If the Legislature had intended to address those complicated issues, it would not have done it by stealth,” Preso said. “There would be something apparent on the face of the statute that would give us some indication of what the Legislature meant for the statute to apply. There’s not one word.”

Justice Jim Rice asked Preso which court would have jurisdiction if a tribe failed to manage free-roaming bison released within the reservation.

“What is clear, when we’re engaged in agreements between sovereigns, we rely on the good faith of the parties as to each other,” Preso said. “The tribe clearly has a substantial amount to gain under the performance of this memorandum of understanding.”

Montana wildlife officials last year transferred more than 60 bison to the Fort Peck Indian Reservation from Yellowstone National Park as part of an effort to relocate more of the animals that once populated the Great Plains to reservations and public lands. Ranchers fought the move in a lawsuit.

In May of last year, Judge John McKeon in Blaine County halted additional transfers while a lawsuit against the relocation program from ranchers and property rights groups was pending.

Yellowstone was estimated to be home to 4,200 bison last summer, and relocations are part of an attempt to curb the periodic slaughter of bison leaving the park. But many ranchers fear the bison could spread disease and compete with cattle for grazing.

In his order for a preliminary injunction, McKeon said the potential injury to the plaintiffs in the case outweighed whatever damage the state might suffer if the bison program was put on hold.

The two environmental groups and Montana Fish, Wildlife and Parks appealed to the Montana Supreme Court to overturn McKeon’s ruling halting the transfers, leading to Friday’s arguments, held at the University of Montana.

It’s unclear when the high court will make a decision.

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