WILD BISON ON THE MONTANA PRAIRIE? MAYBE. BUT WHAT IS WILD?

A BullMooseGazette Special Report

By Ron Moody

September 29, 2013

Whether or not returning wild American bison to some meaningful presence in Montana outside the Yellowstone area is politically possible was debated during a two-day conference convened in Lewistown last week, Sept 26-27, by Montana Fish, Wildlife & Parks.

FWP Director Jeff Hagener emphasized at the beginning the meeting was not to be a decision-making event rather a “good discussion of opportunity. Can we explore some common values or are we at a dead end?”

By the end of the session on Friday, however, at least one agreement had evolved to a virtual decision. There will be no free-roaming bison in Montana for any foreseeable future.

A debate ensued on what it means for bison to be ‘wild’ but not free-roaming. This raised the question of fencing and other containment methods. 

The most frequently mentioned location for an initial bison re-introduction in the prairie region is within the Charles M. Russell National Wildlife Refuge. Refuge Manager Rick Potts reported to the group that the Department of Interior wants no more ‘high fence’ management areas in its wildlife refuge system. “They create more wildlife problems than they solve,” Potts said.

This does not mean, however, that U.S. Fish & Wildlife would not consider other, more natural, methods of containment, Potts added. He also emphasized that the federal agency will do nothing about bison restoration without the leadership of the State of Montana.

Another extended discussion revolved around the question of whether bison should be managed as wildlife at all or as livestock regulated by the State Department of Livestock. The trend of debate, however, moved in the direction of talking about bison as public wildlife simply because private owners of livestock bison are not affected by FWP rules and are already free to manage their animals as they see fit.

Participating in the discussion were ranchers and farmers, MT Stockgrowers and Farm Bureau, two county commissioners both of whom also are ranchers, four state legislators - three with ag interests, representatives of three environmental organizations, two FWP commissioners (one of whom also spoke as a tribal member and the other as a rancher) and state and federal agency personnel. 

No sportsmen were included in the panel and one place set for a tribal representative was vacant. The absence of a hunter representative is ironic since sportsmen license dollars evidently financed the event.

The three environmental groups were the Wildlife Conservation Society, The National Wildlife Federation and the Greater Yellowstone Coalition.

The discussion among interest-group participants was uniformly cordial. The temperature level, however, was considerably higher during the public comment period Thursday afternoon.  Ranching groups had urged members to show up and speak out. Several dozen did so with passionate denunciations of the whole idea of bison restoration with particular venom toward the idea of free-roaming bison and out-of-state meddling. “Fix Yellowstone First” was a common theme.

Only three public commenters identified themselves as hunters, and two others spoke for the tourist industry value of viewing bison as wildlife.

Working under the direction of Facilitator Ginny Tribe the participants developed recommendations for topics of future value should FWP decide to continue with an effort to develop a bison conservation plan for Montana.

First was to offer ideas for a ‘pilot’ or ‘test’ project for bison restoration somewhere in Montana’s prairie counties. Second was to create a set of possible guiding principles that would set the limits of FWP’s decision space in moving on bison conservation. Third was to identify mutual agreements or constraints on what a bison restoration proposal should look like. Fourth was the question of what roles the often conflicting public interests in bison should play in any future process.

A pilot (test) project, according to the first work group, should evaluate restoration and management of bison as wildlife.  Some debate over the choice of names ensued after St Senator Jim Peterson asked that it be called a ‘test’ rather than a ‘pilot’ project because the word ‘pilot’ implies the project would lead to subsequent projects. 

The project, they said, also should have a defined territory, time limit and number of bison involved.  An ‘adaptive management’ method should be used with qualified research and management. Landowners should be involved along with incentives for landowners.  The group also listing other elements: a public hunting opportunity, compensation for property damage, annual reporting, cost accounting and a reliable funding source. Also cited were: Exit strategy defined and determination of what qualifies as success, and a contingency plan for catastrophic conditions.

Guiding principles proposed for any FWP bison conservation process were offered by a work group. First was that expectations of the project on the part of the public should be carefully managed. Other principles included: adherence to laws, respect for private property rights, show how any unanticipated problems will be solved and local working groups should be used to flesh out a specific plan in a given location.

Other principles proposed were that desired outcomes are clear with open, honest communication and commitment. The plan should manage bison as wildlife.  A FWP plan should target a population of bison at least partly on public land that is available for public hunting.

Mutual agreements at this point among the conference participants included:

1.     The idea of ‘free-roaming’ bison is impractical and overly divisive and should be dropped from the discussion.

2.     Any bison planning process must include a clear method for adjusting the plan along the way to ensure objectives are met.

3.     Any test project or bison placement must include a containment plan that meet current state law and thus contains some fencing.

4.     Any publicly owned bison being managed must be certified disease free with continuing monitoring to ensure good health.

5.     Comingling of public bison with nearby private bison herds is to be avoided.

6.     Public hunting should be recognized as a public good and as a legitimate primary management tool.

A public process for bison restoration was described by another work group.

The planning process needs a timeline that has a reasonable end point, they said, it can’t go on forever.  Also, more involvement of sportsmen and tribal interests should be included. And finally, that ‘free roaming’ should be removed from the process and ‘containment’ should be included.

FWP Director Hagener, when summing up the meeting, said “important progress has been made. We will now have to take what we’ve learned here and go back and try to figure out how we should proceed.”

WHEN FANG AND CLAW MOVE INTO THE NEIGHBORHOOD

Wild animals with sharp teeth and a taste for raw meat are enjoying uncommon fame among Americans these days.

In two news events this week, the U.S. Fish and Wildlife Service announced the removal of the gray wolf from the endangered species list. And the New York Times published a lengthy feature story on the cougar’s re-occupation of the eastern U.S.A.

In addition, the resurgence of grizzly bear numbers is an ongoing news story in communities of the northern Rocky Mountain.

While griz angst tends to be local, lions in metropolitan suburbs and wolves in the Oregon, Washington, and Minnesota countryside are another matter entirely – a typical voter may actually have one of these fearsome creatures intrude upon his or her status quo.

Once upon a time, people had no cause to fret about their relationship with meat-eating wild animals. Predators were simply a fact of agrarian life and could be summarily dispatched when they became troublesome – or lived with when they didn’t.

After several generations of urban segregation from nature, contemporary Americans seem unable to fathom the realities of sharing their neighborhood with actual predators.  In the absence of real experience or culturally validated information we employ imagination and conjecture to debate how to live with critters whose lifestyle excites emotions running concurrently from delight to dread. Our greatest terrors always are those of what might happen if . . . .

The wolf’s return to the northern Rockies has fueled a 20-year-long public hissy fit among those who imagine horrors of marauding packs versus those who experience spiritual enlightenment at the sound of a moonlit howling. The cougar excites the same conflicted values but the big cats are more secretive, and scarcer than wolves, and they may have hired a better public relations firm.  Anyway, an individual cougar may spark a local uproar but the idea of cougars in people’s minds is much less inflammatory than the idea of a wolf.

Do not let massive rhetorical gas clouds befog one fact, however. These animals are real, and their inaugural presence in the lives of many more Americans will increase the intensity of conflict in coming years.

Hopefully, we will arrive at a socially accepted relationship with carnivorous wildlife just as we have with edible plant-eaters such as deer and elk – a deal that allows continued existence of these animals with sustainable numbers and adequate habitat.  But this is not a foregone outcome.

The same person who is exhilarated by TV video of cougars lounging around Yellowstone Park will feel a different emotion entirely when Ms. Cougar strolls through the back yard where the grandchildren play.

My experience as a state wildlife commissioner included setting the first wolf hunting and trapping seasons for the gray wolf in Montana.  I quickly learned that managing wolves in a human-dominated landscape is a solvable challenge. Give professional wildlife biologists a few years to work out the methods and the wolf will occupy an assigned niche in our homo-ecosystem.

Managing humans in a wolf-occupied landscape, on the other hand, is several magnitudes of greater difficulty. I describe the whole effort as a biological experiment in an anthropological petri dish.

The ‘socially accepted relationship’ I mentioned will have a couple of measurable dimensions: how many animals and where. Decisive un-measurables center on the willingness of people from different cultural tribes to adapt to the values of neighboring tribes.

In his 2003 book, MONSTERS OF GOD, author David Quammen describes the effects on people who must actually live with and bear the burden of predators as neighbors.  “Proximity plus vulnerability equals jeopardy,” he advises.  The light-hearted willingness of distant urban nature-lovers to impose this burden in service to their self-actualized ideals generates fuel for unending conflict.

The other conflictive fuel source is the unwillingness of rural dwellers and recreational hunters to understand why making a sustainable niche for viable predator populations is an urban political demand. Thus they justify resistance.

Both fuel sources should remember that adaptation has a better history of success than does resistance when it comes to surviving a changing environment.

Of all tribes, the hunter has the more complex dilemma to resolve.  From at least the time of naturalist/president Teddy Roosevelt, a duel vision has emerged among American hunters dedicated to restoring wildlife populations.  One vision is pragmatic: wildlife should be restored in order to provide abundant game for the hunter.  The other vision is altruistic: wildlife should be restored because a healthy nature with all its creatures is vital to human well-being in general.

To this day, hunters remain divided as to which vision is the true purpose of our North American conservation system. The return of the big meat-eaters may force the hunters’ hand toward a visionary decision.

  ~~ Ron Moody

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TRIUMPH OF THE COMMONS – A MIRACLE IN PROGRESS

We Americans are proud of our country; the reasons for our pride are as wide-flung and complex as the nation itself. But what if we are asked, not why we think our country is great, but why it is unique?

Unique is a tougher sell.  All the many things Americans have done first, best or biggest doesn’t imply that people of other nations have not participated in those same endeavors.

To be unique the accomplishment must not only be an original creation it also must stand over time in a character distinct and unmatched by subsequent imitators.

After much study I have parried down the list of candidates for American uniqueness to just two items.

First is our set of founding documents crowned by our national Constitution, and the organic principles of human rights we coded into governance by way of those documents.

Second is the preservation by national political will of large expanses of natural landscapes and wild ecosystems occupied by large, free-roaming populations of indigenous wildlife. This being done with a made-at-home, completely original system of governance applied within the framework of our Constitution and within the cultural norms of our evolving industrial society.

Indeed, the methods we used were so completely original that we had to invent a new word to describe them – conservation.

Only with our Canadian neighbors do we share this standard of uniqueness. And so closely bound are the conservation efforts of our two nations that one can simply describe this as one continental achievement, North American in character.

In the 224 years since the U.S. Constitution was enacted many another nation has imitated the process. Some worked, most didn’t. Not only was ours the first national Constitution - it remains the only one that has endured across centuries with its core principles still carrying the force of law.

Likewise, other countries have preserved some vestige of their pre-industrial environment; these usually take the form of small game parks, woodlands or similar remnant set-asides maintained solely for the pleasure of the wealthy or a ruling elite.

In fact, the first efforts of American wildlife conservationists were imitations of European feudal game parks.  But then, as America followed the same path of resource depletion plowed by preceding societies, we came to a national agreement that the wilderness frontier was necessary for Americans to be Americans – the idea of being free always implied having space in which one can roam freely. Simultaneously, even as we brought wildlife to the cliff edge of extinction with a few species falling over, we came to the civil decision not to take that last fatal step for all remaining wild species that could be saved.

Instead, we kicked down the walls of human precedence and started saving wild lands and restoring vanishing wildlife – not just on a small scale for blueblood sport, or for zoo and museum display – but on a massive, continental scale measured in millions of acres and millions of animals with the intent that our permanent internal frontier would be enjoyed by all the people and their posterity.

Many nations can rival our tall buildings, and grand architecture – our universities, highways and medicine. But no other people has come close to preserving anything like the vast and accessible natural landscapes and unfenced, free-roaming wild animals great and small of the United States and Canada.

For example: In 1872,Yellowstone was the world’s first national park. Today, several nations have parks to equal or exceed the size of Yellowstone. But no other nation comes close to matching our immense National Park system of which Yellowstone is only one unit.

As important as its originality, and in common with the U.S. Constitution, is the endurance across time of our great North American act of conservation will.  And nowhere else on the planet can 14 million citizens afford to buy a hunting and fishing license and also be free to go afield in wild places with good hope of success.

Yes, conservation means use – but wise use. Don’t let your use of the resource prevent it from being there ten generations in the future.

Even as our industrial civilization grows and our population expands we continue to preserve national forests, parks and monuments, prairie ranges, wildlife refuges and a dozen other versions of public natural lands and waters. If that is not a miracle of human civics pray tell what is.

I call this act of public will and democratic government the ‘Triumph of the Commons.’

But our conservation miracle was never a perfect feat. The miracle is continuously imperiled with the encroaching needs of people.  And it is, and always was, unfinished and sometimes sorely flawed.  Much work remains to be done.

The mission of Bull Moose Gazette is to bind the 19th Century roots of our North American Conservation system to the leaf and branch of the 21st Century.

Here will be today’s news, tomorrow’s challenges, essays, opinion and continuing recollection of what was done for us by generations before. Yes, our Triumph is an imperiled civic miracle and yes, it has been handed down to us both incomplete and flawed amid its splendid achievements. But, not only are we not dismayed by the challenge, we positively relish welding our link in the chain of conservationist generations.

So here we will tackle the work at hand as we stand our watch on the American conservation voyage.

Regardless of any controversy boiling in democracy’s hot kitchen, we will celebrate with pride the grand uniqueness that comes with being a conservation citizen of the United States or Canada.

~~ Ron Moody

PROPERTY IS PROPERTY AND RIGHTS ARE RIGHTS

By Ron Moody

Along with several hundred other Montanans I spent the morning of Monday, April 29 listening to arguments before the State Supreme Court in PLWA v Madison County & Kennedy.

Several newspapers covered the hearing but I am moved to write this column, not by the actual reporting, but by one repeated assertion in reader comments to those news stories.  A number of readers are supportive of Kennedy’s argument that his private property rights are violated by the Montana Stream Access law and by Section 4 of the Montana Constitution which mandates: “the Legislature shall provide for . . . cultural and recreational areas . . . and for their use and enjoyment by the People.” 

That perspective is fair enough; what dismays is the implicit view that the only property rights at risk in this case are those of the private property owner. Apparently, these folks only recognize the existence of property rights when property has a private owner.

To the contrary, this case is a dispute between two overlapping, and equally valid, property rights – public versus private.  Property owned by the public carries the same bundle of rights in law as property owned privately.

PLWA v Madison County thus contests the interests of two equally legitimate property owners when the two separately owned properties are merged together in one physical setting – in this case public water flowing over private land. Access to property is an established element of ownership; PLWA is in court defending the public’s right to access its legally owned property, water and wildlife, against Kennedy’s effort to deny that access.

James Kennedy clearly owns the land bounding the Ruby River.  The aggrieved owner(s) are the people of Montana through their trustees, the State Government and Madison County. The people clearly own the water and wildlife in the Ruby River and they own the prescriptive easement across Kennedy’s land and the river.

PLWA claims the public road prescriptive easement of Seyler Lane is wide enough to allow legal public access to the public waters of the Ruby River without creating a trespass on Kennedy. PLWA is appealing a lower court ruling that the easement narrowed at the bridge and thus precludes actual access to the water by public users.  Kennedy argues that simply floating over his private stream bed is trespass (not to mention touching foot to the stream bed while wading), and thus the Stream Access Law is an unconstitutional taking of his property.

The foundation of Kennedy’s argument is the Fifth Amendment of the U.S. Constitution that bars taking of private property without just compensation – thus, in the absence of ‘just compensation,’ no legal taking of private property can occur and passage of time does not mend the loss.

However, reading the Fifth Amendment in isolation of legal history requires us to recognize a much greater and more violent taking of private property occurring on this bridge crossing site in Madison County. That ‘taking’ is the creation of the Seyler Lane prescriptive road easement itself.  Employing the logic of Kennedy’s argument, the Fifth Amendment means that Seyler Lane and all the tens of thousands of other public roads established by prescription are illegal takings and should not be there.

The state stream access law is peanuts next to this historic and pervasive taking of private property for public use.  Remember that a prescriptive easement is nothing more than the creation of a public property right across private property by way of unchallenged lengthy and continuous public use of the right-of-way. No ‘just compensation’ takes place; a court simply rules that public use meets the standards of easement law and the public gets to use the private property in perpetuity.

Why was this taking not challenged by Kennedy?  Perhaps because prescriptive easements fall into a category of exceptions to the strict mandate of the Fifth Amendment that have become well and strongly established in U.S. law and broad local custom.  Other such ‘takings’ include zoning ordinances, police powers and public nuisance and public health and safety laws. (although zoning laws sometimes do get push back on takings grounds.)

The public taking of a prescriptive easement from a private property owner is a ‘taking’ on its face – but this taking, apparently, is simply “too big to fight” – reminiscent of banks too big to fail.

Rather than framing the dispute at the Seyler Lane Bridge crossing of the Ruby River as a violation of one property owner’s rights, I argue the conflict is that of two owners striving to resolve mutual, equitable use of property by both owners whose property occupies the same space.  Kennedy deserves full use of his land while the people of Montana deserve at least a limited ability to use their property – the river and the publicly owned fish that live in the river. 

Making rules to equitably govern this sharing of space was the purpose of the Montana Stream Access Law. As such, the Stream Access Law is no more of an abridgement of constitutional right than are laws against slander, or shouting fire in a crowded theater, abridgements of freedom of speech guaranteed by the U.S. First Amendment.

Of course, this logic becomes irrelevant if Kennedy’s real purpose is to seize control over the public property that flows across his land – but that’s a taking of a different color, isn’t it.