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Ninth Circuit declines to stop tribal bison hunt in Montana

People living nearby say the hunt, which culls 10% of the Yellowstone herd in some years, sends stray bullets whizzing past their homes.

(CN) — Annual bison hunts carried out by tribal members exercising their treaty rights will continue on public land adjacent to Yellowstone National Park, after a Ninth Circuit panel declined Tuesday to side with a neighbor who says the annual hunt poses a safety risk.

Each winter, bison migrate out of Yellowstone National Park looking for grass and other forage. The government encourages hunters to kill the animals that venture beyond the park’s borders into Beatty Gulch before they make it to nearby cattle ranches, as part of an Interagency Bison Management Plan developed in 2000.

Some of the hunters are nontribal members who obtain hunting licenses from the state of Montana. But a larger number are member of four Indigenous nations that ceded their territory in the area. They agreed to do so under certain conditions, specifying in treaties that they would continue to be able to hunt bison and other animals in their usual hunting spots.

Four tribal nations joined the case as amici: the Confederated Salish and Kootenai Tribes, The Nez Perce Tribe, The Confederated Tribes of the Umatilla Indian Reservation, and The Confederated Tribes and Bands of the Yakama Nation.

“To tribal members, the hunt provides a healthy and sustainable source of food and clothing for family members and an opportunity to re-establish cultural and spiritual connections to a majestic animal that at one time was intentionally destroyed as a military and political expedient, resulting in the near-extirpation of the species and devastating trauma to amici tribes,” the four nations said in their amicus brief.

Over the last two decades, the hunt has expanded to allow the killing of between 100 and several hundred animals each winter, all in the quarter-square-mile area at the mouth of Beatty Gulch. But the government’s management plan has not changed.

Bonnie Lynn, founder of Neighbors Against Bison Slaughter, owns two cabins in a condominium complex along the Yellowstone River just across the road from where the annual hunt happens. She said in her lawsuit against federal defendants including the National Park Service that she is scared she or her family could be killed by flying bullets.

The government says the hunt is necessary in part to prevent bison from infecting cattle with brucellosis, a disease accidentally imported from Europe that causes spontaneous abortions in cows. But in another case argued before the Ninth Circuit this past February, Cottonwood Environmental Law Center says there has never been a documented case of brucellosis transmission between bison and cattle. Instead, Cottonwood said, transmission is coming from elk, which are allowed to freely roam the area. But the government continues to allow hunting and hazing of bison based on its flawed logic, according to the group.

Lynn’s attorneys argued the government has allowed the hunt to grow as a method of controlling the bison population in the park, and that outdated ideas about how many bison the park can accommodate are another subject the government should reevaluate in the environmental review it’s been putting off for over a decade.

Based on the two lawsuits, the government agreed to voluntarily reassess its management plan for bison. But both Lynn and Cottonwood said that wasn’t enough. They appealed a federal judge’s approval of the agencies’ request to take the plan back for revision.

This past February, the same judges issued a six-page ruling finding that the federal court properly dismissed Montana Governor Greg Gianforte as a defendant in the Cottonwood Canyon case.

Lynn and Cottonwood also asked the Ninth Circuit to halt the hunt until a new management plan is in place. But they abandoned that request after the tribes argued that if the court vacated the policy entirely, they would lose access to the treaty-protected hunt they have only recently been able to carve out.

“Tribal treaty hunters do not hunt bison within the boundaries of Yellowstone National Park or on private property outside of the park,” the tribes say in their amici brief. “A primary corridor for the bison migrating north of Yellowstone Park is on national forest land through Beatty Gulch, which is why Beatty Gulch is where the majority of the amici tribes’ harvest has occurred and is anticipated to occur in the near future.”

Lynn’s attorney, Matthew Thurlow, said Tuesday that bison could be allowed to migrate farther out of Yellowstone before being hunted. That arrangement could allow the tribes to continue their treaty-protected hunt – so long as it takes place on federally managed public lands. However, it risks additional disputes with ranchers who graze their cattle on the Custer Gallatin National Forest, adjacent to Yellowstone.

The tribes added they have held extensive meetings with local residents to discuss public safety during the hunt.  

“Apart from respect for the bison, amici tribes’ regulations are intended to prioritize the safety of hunters, residents, and law enforcement in Beatty, and avoid any damage to private property,” they said in their brief.

Attorneys for the tribes did not return a phone call requesting comment before press time.

The four-page ruling was issued Tuesday by Senior U.S. Circuit Judge Richard Anthony Paez, a Bill Clinton appointee, U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, and U.S. Judge Richard K. Eaton, a Clinton appointee sitting by designation from the U.S. Court of International Trade. The judges denied Lynn’s request to impose a court-ordered deadline on the new plan, and instead invited Lynn to turn back to the federal court if the agencies don’t deliver their supplemental environmental impact statement by the self-imposed deadline of November 2023.

Thurlow said Tuesday that his client hopes a new management plan will meet the needs of everyone — the tribes, the public, and herself and her neighbors. That’s despite the tribes’ claim that Lynn didn’t consult with them before filing her lawsuit, which Thurlow disputes.

“I think the timing of our initial filing caught the tribes off guard, because it was at the beginning of the hunting season and we were asking for injunctive relief to stop it and the tribes didn’t like that and the agencies didn’t like that,” Thurlow said. “But what we tried to emphasize to the court was that in the long term, my client’s goals are aligned with the tribes’, in seeking a solution where you could potentially hunt more bison in a more open area of the landscape.”

Thurlow said that was a question that would hopefully be addressed in the updated management plan. He added that further litigation is possible at that point.

“In the past, unfortunately the focus has been on limiting the migration of the bison and keeping them in Yellowstone,” Thurlow said. “That’s been driven by some of the private landowners who don’t want the bison to compete with cattle.”

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