Montana law related to restoration of public wild bison

The following are excerpts from the Montana Constitution, from the Montana Code, and from a state Supreme Court decision. Go to leg.mt.gov/bills/mca for complete texts. Comments and interpretations are in italics. We believe the Constitution and laws provide an imperative for restoring wild bison; create protections for private property; and constrain, but do not preclude, opportunities for bison restoration.

Montana Constitution

Preamble: Montanans seek “equality of opportunity”. Thus, access to use and enjoy truly wild bison (for harvest, viewing and reflection) should not be unduly constrained, expensive or rare.

II(29): Private property shall not be damaged for public use without just compensation. This is an eminent domain statement. Thus, wild public bison will be restored best in an area with a large amount of mostly contiguous, public land and private lands where wild bison are accepted.

IX(1): The legislature shall provide adequate remedies to prevent unreasonable depletion and degradation of natural resources. Bison are a natural resource. Having no public, wild herd of bison in Montana is not adequate for present and future generations of Montanans.

IX(4): The legislature shall provide for the restoration of historic, scientific, cultural and recreational objects for their use and enjoyment by the people. Are wild bison an “object”? Are they not historical, useful and enjoyable?

IX(7): The opportunity to harvest wild game animals is a heritage that shall forever be preserved to the individual citizens of the state. In contrast, the opportunity to harvest wild bison is constrained to a few licenses for a low-quality hunt near Yellowstone Park. Chances to obtain a bison license in the lottery are very small.

Montana Code

75-1-103(1): The legislature, recognizing the profound impact of human activity on all components of the natural environment, declares it is the continuing policy of Montana to create and maintain conditions under which humans and nature can coexist in productive harmony.

75-1-103(2): It is the continuing responsibility of Montana to fulfill responsibilities of each generation as trustee of the environment for succeeding generations.

75-1-103(3): Each person has a responsibility to contribute to the preservation and enhancement of the environment. Implementation of these rights requires the balancing of competing interests. Note, we have domestic livestock on most of our public lands and no year-round herd of wild bison anywhere on these lands. Balance?

81-1-101(6): In Title 81, “wild bison” means a bison that has not been reduced to captivity and is not owned by a person. Therefore, public bison “reduced to captivity” are not “wild”? Note also 87-2-101(14), below.

81-2-120: Whenever a publicly owned wild bison from a herd that is infected with a dangerous disease enters Montana on public or private land, or whenever the presence of wild bison constitutes a livestock disease threat, the Department of livestock may, under a plan approved by the governor, adopt rules with regard to their management. This statute provides the Department of Livestock with primary control of wild, public bison from Yellowstone Park, or any other wild public bison that could become present in Montana and constitute a disease threat.

81-2-121: Should a publicly owned wild bison that is suspected of carrying a disease enter private property, the landowner must make a good faith effort to notify Fish, Wildlife & Parks to remove the animal; but may then dispatch the animal. The intent is to protect private livestock from any possible disease transmission.

87-1-711, 712: This statute effectively defines bison within the National Bison Range as “display animals” in “an exhibition park”. This statute and reduction of these bison to captivity indicate that Bison Range bison are, legally, not “wild bison”.

87-1-216: This comprehensive statute sets out duties of Fish, Wildlife & Parks for any restoration and management of wild bison that may occur. Numerous constraints for wild bison include: FWP must consult with the Department of Livestock to insure that bison remain “disease-free”; FWP may not allow wild bison on any property without authorization from the landowner; Wild bison must comply with all livestock health rules; bison must be “contained” in a designated area; Bison numbers may not exceed “carrying capacity” of the land; Management funding must be identified; FWP will be liable for most any damages that bison may inflict; FWP shall consult with the Department of Livestock regarding bison hunting. No other big game species is so constrained. Under this statute, the CMR National Wildlife Refuge with abundant contiguous public land and bison-friendly private land seems to be the best, of not only, place where wild public bison may be restored in Montana.

87-1-271(f): The FWP Commission may issue one lottery license per year for harvesting a wild bison. Proceeds are to be used to enhance hunter access.

87-2-101(4), (14): “Wild buffalo” are a “game animal”; Wild buffalo are bison that have not been reduced to captivity. Note, the form and degree of captivity is not defined; the distinction between “contained” (cited above) and “captivity” remains unclear.

87-2-730: Public hunting of wild bison that have been designated as in need of disease control must be authorized and reviewed by the Department of Livestock. Methods of harvest are described, including that hunting be conducted on foot away from public roads. This statute applies primarily to bison visiting Montana from Yellowstone Park.

87-5-103(2)(b): The legislature finds that species of wildlife indigenous to this state that may be found to be endangered should be protected to maintain and, to the extent possible, enhance their numbers. Wild bison, excepting seasonal visitors from Yellowstone, are absent from Montana, but not yet classified as endangered by the state.

87-5-716: Related to transplanted wildlife, Fish, Wildlife & Parks shall consult with the departments of Agriculture, Public Health and Human Services, and Livestock in all matters relating to control of wildlife that may be harmful to agriculture or livestock, or pose a risk to human health or safety. Statute illustrates a legislative commitment to protecting private and public resources from any negative impact that may occur from wild bison.

Montana Supreme Court:

Montana vs. Rathbone (1940): A Montana property owner must recognize that “there may be some injury to property or inconvenience from wild game for which there is no recourse”.