Fort Peck bison: Ranchers win round in 'marathon' case

Havre Daily News/Nikki Carlson

Montana 17th District Court Judge John McKeon, left, listens as Montana Fish, Wildlife and Parks Wildlife Bureau Chief Ken McDonald testifies Wednesday afternoon at a hearing in the Blaine County Courthouse in Chinook about FWP's relocation of quarantined Yellowstone Park bison to the Fort Peck Indian Reservation.

The 61 bison on Fort Peck Indian Reservation will stay put for at least 30 days, after 17th District Court Judge John McKeon upheld a temporary restraining order against moving the bison.

McKeon made the decision Wednesday afternoon after an eight-hour hearing at the Blaine County Courthouse in Chinook.

The judge said he would make a permanent decision within 30 days.

Native Americans, wildlife advocates and Montana Fish, Wildlife and Parks wanted the bison transferred from Yellowstone National Park to Fort Peck and Fort Belknap Indian reservations on the Hi-Line, but area ranchers, fearing damage to their property and spread of brucellosis to their livestock, sued to block the move.

McKeon issued a temporary injunction last month.

After eight hours of questions Wednesday, McKeon upheld the provisions of the restraining order that remained after the plaintiffs amended their request.

The provisions that remain forbid the transportation of bison from Fort Peck to Fort Belknap Indian Reservation and stop FWP from making any more agreements about further transporting bison.

The removed provisions would have forced FWP to take the bison that were transported from the quarantine facility at Corwin Springs to Fort Peck and barred Fort Peck officials from intermingling the new bison with existing commercial livestock bison.

McKeon said that restraining order will be in effect until he comes to a final decision in the next 30 days.

Following the decision, Cory Swanson, the ranchers' attorney, said he was encouraged by the decision and by the judge's decision to take the next 30 days to think the day's evidence over.

"The fact that he has taken thirty days to carefully consider this is great, " Swanson said. "We're happy that for the next thirty days we are safe. "

He also acknowledged that today's decision is just the beginning.

"It's definitely a marathon, " Swanson said, "not a sprint. "

One of the defense lawyers, Timothy Preso of Bozeman-based environmental law firm Earthjustice, said that the judge's decision was not unexpected.

"He's basically maintaining the status quo until he makes his final decision, " Preso said.

He added that the defense's goal has always been to "take every step we can to make sure" that bison, after being guaranteed brucellosis-free, coming out of Yellowstone have safe and responsible places to graze, rather than being slaughtered, and they will continue to fight for that.

Focus shifted a lot during the eight-hour debate, but largely kept returning to a few key points of contention.

The plaintiffs argued that FWP had violated a specific provision of Senate Bill 212, a bill passed during the 2011 legislative session that required FWP to designate a management plan and public feedback for transplanted bison herds in Montana.

The defense attorneys argued that this agreement was with the sovereign governments of the reservations, so the rules didn't apply. They also insisted that although those requirements did not apply, they did their best to satisfy the requirements in the work they had done.

This led to a debate over just how sovereign the reservations are that mostly led to no conclusion.

Another key issue was liability.

The plaintiffs maintained that FWP designed the agreements with the tribe to avoid their own liability, thrusting responsibility on the tribes with no way to enforce it. And given the problems some of the rancher plaintiffs have had in getting compensation for damages caused by livestock bison, many had little faith that these measures would be enough.

The defense said that the agreements would actually offer far more recourse than ever before.

These wildlife agreements contain provisions for how the bison need to be contained, what kind of fence is required and what will be done if the bison escape, including the worst-case scenario of the bison being taken away from the tribes.

The wildlife versus livestock distinction was an important one for both the plaintiffs and the many area farmers and ranchers who came to the hearing.

As many of them explained, when an animal is classified as wildlife, it suddenly has more rights, more limitations on how a rancher dealing with a stray can handle the animal.

The defense still believes that "reasonable compensation" delivered "in a reasonable amount of time, " should be enough.

The defense also guaranteed action within 72 hours and the possibility of permanent removal of the whole herd in the case of repeated problems.