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”.