Gianforte appeals BLM decision, continues to fight against American Prairie, bison

By: - December 23, 2022 8:06 pm

A bison herd near Sun Prairie, Montana on the American Prairie Reserve. (Photography by Gib Meyers; courtesy of American Prairie Reserve)

The Gianforte administration has appealed the Bureau of Land Management’s decision to grant a 10-year grazing permit to American Prairie, the Bozeman-based organization dedicated to preserving prairie land and restoring bison to Montana’s plains.

The appeal also indicates an increasingly acrimonious relationship between Montana’s executive branch and one of the largest landholders in the state. In the appeal, filed with the BLM on Thursday, state attorneys, including the lawyers for Gov. Greg Gianforte, said they want action taken to cordon off state land that sits surrounded by federal land – nearly 30,000 acres worth – to keep bison from grazing on them.

Federal public grazing land is often intermixed with state trust land. In order to streamline the land management, most of the parcels are managed by the federal BLM agency for the state.

In his appeal, attorneys for Gianforte argue that the decision of the administrative law judge fails to consider landowner rights of Montana. They claim that while federal regulations allow bison to use federal land for grazing, it would require a special permit and those bison herds must be for commercial production, not conservation. The state attorneys, in their 35-page brief, also said that allowing bison to graze via a federal permit violates a nearly century old federal law, the Taylor Grazing Act, something that the BLM and expert attorneys say misconstrues the act.

The Gianforte Administration argues the Act only allows grazing for four types of livestock, primarily cattle.

However, an attorney for American Prairie on Friday told the Daily Montanan that Gianforte administration continues to ignore the organization has been grazing on much of the land, including state land, for more than a decade without an issue or lawsuit.

Mary Cochenour, senior attorney with Earthjustice’s Northern Rockies Office said:

“It is scientifically proven that bison are beneficial to the landscape. Their unique grazing patterns restore the prairie ecosystem so that native vegetation, wildlife, and water quality can improve and flourish. The governor, attorney general, and Montana Stockgrowers Association have failed to demonstrate any immediate and irreparable harm from bison grazing. American Prairie has grazed bison on public BLM allotments and state leased lands for almost a decade without injury, disease, or the other damages now alleged by the appellants. A stay requires a showing of harm – it’s not enough to simply dislike bison.”



The appeal marks the latest in a years-long dispute in which both Gianforte and Montana Attorney General Austin Knudsen have taken on American Prairie only to lose nearly every attempt.

At issue is more than 260,000 acres of federal land, located largely in Phillips County, held for grazing by the BLM. Montana has 29,309 acres of land that is contained within that.

Montana has asked that if the BLM grants the permits, that it takes measures to fence off state land – something American Prairie has previously said is unnecessary, impractical and costly

Gianforte’s lawyers said the federal government cannot arbitrarily decide that Montana should use its land for something the state does not support, in this case, grazing bison. For years, the Gianforte administration has argued that bison conservation undermines the health of rural livestock, and the land should only be leased to commercial livestock producers.

Previously, an administrative law judge for the BLM held that the Gianforte administration failed to consider portions of federal law that allow bison to graze. Moreover, the federal government said the Gianforte administration had failed to show harm would be done by allowing bison to graze. Meanwhile, attorneys for the state of Montana argue that the federal government cannot allow “a conservation bison herd, because grazing permits are statutorily limited to ‘livestock.’”

They argue that the Taylor Grazing Act’s purpose is to stabilize the livestock industry, and that must be given top priority. Meanwhile American Prairie argues that livestock grazing is one of the primary purposes, but that conservation grazing is acceptable, and federal law has repeatedly approved bison as part of that definition.

Attorneys for Gianforte also said that because livestock is defined in federal law as cattle, sheep, horses, burrows, and goats that bison was specifically omitted and not allowed. Furthermore, they argue that in order to have bison grazing on federal land, it would require a special permit, not a standard livestock permit – arguments that have so far failed to sway the BLM.

“If the permit is allowed, there will be no way to exclude the American Prairie bison from the state lands. At this time, if APR turns bison out on two allotments in accordance with the final decision, there will be no fences to exclude bison from state trust parcels,“ the filing said. “Given the state’s heightened duty to manage these trust parcels, this unauthorized bison grazing cannot be tolerated as it violates the state’s managerial prerogative, and, indeed, infringes state sovereignty.“

The state also argues that these land parcels, which are used for the benefit of supporting schools, will be harmed by turning them over to conservation efforts when they could be used to make money from livestock grazers.

“In allowing American Prairie to graze bison and remove fences, state trust lands are exposed to grazing which is not authorized by the state,” Gianforte’s attorney said.

The State of Montana is asking for the BLM to stay the approval of the grazing permits pending a review during the appeals process.


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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.