Montana argues Yellowstone bison are a “more significant risk” than elk

BILLINGS – Although elk infected with brucellosis freely roam southwestern Montana and have been responsible for infecting cattle with the disease, “bison in Yellowstone present a much higher, much more significant risk to the state,” an attorney representing Gov. Greg Gianforte argued in a Butte U.S. District Court last Thursday.

Attorney Rachel Meredith made the statement in a hearing before Judge Brian Morris as he considers several motions in a lawsuit filed by the state against the federal government and Yellowstone over its 2024 bison management plan.

The state filed its lawsuit at the end of last year, arguing Montana’s concerns were not properly addressed and that Yellowstone’s analysis was flawed.

Bison outside of Yellowstone

Yellowstone bison that wander outside of two tolerance zones, designated by the state on the north and west sides of the park, are killed or hazed back into the park. These zones also provide the two main regions where bison are killed by tribal and public hunters.

Environmental groups and tribes with treaty rights have argued for allowing the bison greater room to roam on adjoining national forest lands, like other wildlife in the state. In so arguing, they point to the state’s management of brucellosis-infected elk as an example of what is possible.

On the other hand, Montana officials want bison contained as close to the park as possible to restrict the spread of brucellosis, a disease that can cause ungulates to abort and affects the shipment of live cattle to other states.

So why should bison be contained and not elk?

“There are a couple of critical distinctions, however, between the disease as it exists in elk and the disease as it exists in Yellowstone Park bison,” Meredith said. “Bison in Yellowstone Park and elk in the Greater Yellowstone areas surrounding Yellowstone manifests significantly different seroprevalence levels.”

Seroprevalence, Meredith said, is the number of animals that tests positive for having been exposed to brucellosis. Not all animals exposed are capable of transmitting the disease, which is mainly contracted through contact with an infected animal’s birthing tissues.

“Bison seroprevalence in the park is as high as 60%,” Meredith said. “However, seroprevalence in elk in the Greater Yellowstone Area, (Fish, Wildlife & Park) studies are showing it’s more on the order of 5%. Now there are a couple of herds that show a rate of between 20% and 30%, but they’re isolated.”

To keep elk from infecting cattle, the state tries to keep the animals separated through hazing, issuing kill permits and fencing off haystacks that attract elk to ag fields.

State vs. feds

The state has argued Yellowstone did not properly conduct environmental analysis required under federal law concerning “reasonably foreseeable future actions” when it developed its new bison plan, Meredith argued.

By setting bison population goals averaging 5,000 animals – whereas the state would prefer no more than 3,000 to avoid bison migrations out of the park – the Park Service should have foreseen the action might threaten the tolerance zones, she said, which “should have been assessed (by the Park Service) for its consequences.”

Attorney Romney Philpott, representing the federal defendants in the lawsuit, said the Park Service was not obligated under the National Environmental Policy Act to complete a more extensive analysis of its bison management plan. The Park Service’s environmental impact statement was sufficient, he argued.

Cottonwood seeks stay

Since the state filed its lawsuit, numerous groups and tribes have sought to intervene.

The state and federal attorneys agreed Cottonwood Environmental Law Center, represented by Bozeman attorney John Meyer, should be excluded. Cottonwood is seeking to halt the state’s lawsuit until the Custer Gallatin National Forest and the Animal Plant Health Inspection Service complete environmental reviews related to a 2018 lawsuit Meyer filed.

In that case, the 9th U.S. Circuit Court of Appeals ordered the agencies to analyze enforcement of Montana’s “admittedly arbitrary political boundary” constraining bison movement outside of Yellowstone “in light of the new science and information regarding transmission of brucellosis,” Cottonwood stated in its brief.

Meredith and Romney accused Cottonwood of trying to “hijack” the lawsuit for reasons unrelated to Montana’s complaints.

Meyer said requiring the stay would allow Yellowstone to shorten its confinement of bison for live transfers to a holding facility on the Fort Peck Indian Reservation from 900 days to 300.

If Montana removes tolerance zones for bison, then the Forest Service will be more involved in issuing bison hunting closure orders, Meyer told the judge.

Judge Morris questioned how he could avoid addressing Cottonwood’s filings. Meredith said the state’s case is “premised entirely on the bison management plan.”

She also noted a delay in the state’s case, as requested by Cottonwood, could cause “significant harm” if bison migrate out of the park in large numbers next winter.

Bison migrations into Montana are more likely to occur when the bison population is large and there is a harsh winter. These two conditions drive the animals to lower elevations outside the park in search of food.

In the cold, snowy winter of 2022-23, when large bison migrations did occur, more than 1,500 bison were killed within the tolerance zones, mostly by tribal hunters.

Yellowstone reported 866 animals were removed from the population this winter, 97 of which were placed in the quarantine program for possible live transfer and 768 that were shipped to slaughter with the meat provided to the Confederated Salish and Kootenai Tribes. One calf died after being captured.

Four bison were killed by state hunters. By the end of March, tribal hunters had killed at least 13.

At the beginning of the winter, the Park Service set a goal to remove more than 1,300 bison through hunting, capture and slaughter.

More twists and turns

Expanding the case file even more, on April 8 the Yakama, Umatilla, Salish and Kootenai tribes filed to intervene in Montana’s lawsuit against Yellowstone National Park.

The groups contend in their motion: “If Montana prevails in this case, bison population numbers will be so low that out-migration from the Park will decrease or cease altogether, depriving members of (the tribes) their ability to exercise their off-reservation treaty hunting rights. Additionally, Montana indicated that it could decrease the tolerance zones outside the Park, further reducing the Tribes’ ability to engage in a bison hunt.”

Also noted during the hearing was the federal request for another bison lawsuit to be combined so only one judge is considering the issues.

The Alliance for the Wild Rockies and Council on Fish & Wildlife’s lawsuit, filed in January, contends the Park Service failed to incorporate the findings of a 2020 National Academies of Sciences, Medicine, and Engineering report regarding the disease brucellosis, as well as the U.S. Fish and Wildlife Service’s current consideration of bison as a threatened or endangered species due to its range being restricted.

Philpott, the attorney representing federal agencies, said both cases will be considering the same administrative record – all the documents the Park Service considered when it came to its decision on the 2024 bison management plan.

“Once we have the administrative record, it’s a matter of filing briefs,” Judge Morris said.

“That’s correct,” Philpott responded.

“OK, so to limit the ability or the scope of a party’s intervention seems unnecessary in that circumstance,” Morris said. “We’re all litigating issues in the claims brought by the state of Montana, based on an administrative record prepared by the National Park Service.”

Philpott said enlarging the case to include Cottonwood’s complaints inserts different issues into the proceedings.

“So we think that, for instance, Cottonwood should be limited to addressing the claims brought by Montana, as opposed to going off, you know, whether against the Park Service or the other two agencies in this case,” he said.

Judge Morris said that due to trials scheduled in the next three weeks it would be a while before he issues a ruling.