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Refuge conveyance sparks concern about public land transfers and a disclaimer

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MONTANA – A proposal by U.S. Sen. Steve Daines to convey the National Bison Range to the Confederated Salish and Kootenai Tribes has generated a mixture of excitement, concern and outright opposition in Montana.

The provision, included in a broader bill settling the historic water rights claims of the CSKT, would restore the 18,800-acre range to federal trust ownership on behalf of the CSKT and transfer management of the range from the U.S. Fish and Wildlife Service to the tribes. According to CSKT tribal attorney Brian Upton, the return of the bison range to the tribes was first pitched by FWS several years ago following a number of unsuccessful attempts to re-establish a co-management agreement — a history Upton described as “difficult and a bit of a roller coaster.”

“That’s certainly not anything we had asked for before the service raised it,” Upton said of the conveyance. “But it’s clearly an elegant solution to everything, and all it does is restore the bison range to its status before the federal government took it from the tribes.”

FWS had abandoned the idea in April 2017 at the behest of then-Interior Secretary Ryan Zinke, who cited his commitment to not transfer or sell federal land. But nearly two-dozen tribal and conservation organizations have since rallied behind a push for bison range restoration legislation, arguing that such a move would correct a century-old injustice and enhance the cultural and ecological significance of the roughly 300 bison that roam the range. 

John Todd, deputy director of the Montana Wilderness Association, told Montana Free Press that his organization’s support for Daines’ proposal is grounded in awareness that contemporary public access to public lands is a direct result of the forced removal of tribal peoples throughout the West.

“It corrects an injustice of the range being taken away from them a long time ago,” Todd said, “and it really gives the tribes the opportunity to incorporate the bison range into a really rich fabric of conservation that they have there on the reservation.”

The bison conservation movement has deep roots on the Flathead Indian Reservation, dating to the tribes’ establishment of a free-ranging herd in the 1870s. The National Bison Range itself was born in 1908 when the federal government appropriated reservation land for the creation of one of the nation’s first National Wildlife Refuges — an appropriation that Daines’ bill acknowledges was effected without the tribes’ consent. The tribes negotiated two co-management agreements with FWS in the mid and late 2000s; the first was canceled by FWS, and the second was rescinded by a federal court in 2010, kicking off a decade of contention and uncertainty over the tribes’ future role on the range. CSKT formed the nonprofit Bison Range Working Group in 2016, pushing for legislation that would restore the range to federal trust ownership.

While the heated back-and-forth debate over Daines’ Montana Water Rights Protection Act has largely focused on the water rights settlement with the CSKT, the bison range conveyance attracted its own set of opponents and skeptics. In a Jan. 15 op-ed in the Billings Gazette, Polson property owners Philip Barney and Wayne Schiele characterized the transfer as a “federal land giveaway” and claimed it would set “a terrible and inappropriate precedent.” Barney and Schiele co-founded a limited liability company called Protect Public Land in 2016, and in the same year, Barney penned a letter in the Flathead Beacon opposing the tribes’ request for bison range restoration legislation. Their focus on precedent echoes the position taken by the nonprofit Public Employees for Environmental Responsibility during a 2016 lawsuit to block transfer of the bison range to the tribes.

“There has never been a refuge taken out of the system before,” PEER senior counsel Paula Dinerstein told Montana Public Radio at the time. “We’re concerned about it for this refuge. We’re concerned about its precedent-setting nature and it should be subject to a full environmental review as required by the National Environmental Policy Act before such a proposal is made to Congress.”

National Park Service employees voiced similar concerns about precedent-setting in the late 1990s when the U.S. Department of the Interior transferred management of Minnesota’s Grand Portage National Monument to the Grand Portage Band of Chippewa Indians. As with Daines’ proposal to transfer the bison range National Wildlife Refuge out of federal management, the Grand Portage transfer of national monument management was the first of its kind in the U.S. According to a legal review compiled by Upton in 2014, the Grand Portage arrangement was later deemed a significant success, with then-park superintendent Tim Cochrane proclaiming it a “merger of fortunes and perspectives.”

The Montana Water Rights Protection Act, co-sponsored by Sen. Jon Tester, addresses the precedent concern head-on, stating that the bison range conveyance is “not intended, and shall not be interpreted, to establish a precedent for any other situation regarding Federal land, property or facilities.” Upton told MTFP the tribes specifically lobbied for the inclusion of the language, cognizant not only of past arguments against conveyance, but of broader fears in the West regarding the federal lands transfer movement, which has fought in Congress and state Legislatures to transfer federally held lands to state or local ownership.

“We wanted to demonstrate to folks that we share their concerns, and we felt like the best and most direct way we could do that was putting into the law itself that this shall not be a precedent for any other situation involving federal lands,” Upton said.

Upton further believes that concern about the bison range conveyance setting precedent for the transfer of other federal lands falls apart when considered in light of the land’s legal history. Robin Saha, an environmental studies professor at the University of Montana, agrees. Saha has been taking students to the bison range for more than a decade, and co-wrote a 40-page academic study of tribal co-management there in 2015. Saha waded into the current debate with an op-ed in the Missoulian last month, defending the benefits tribal management would bring to the range and accusing opponents of misrepresenting the range’s history.

“What some opponents fail to acknowledge or recognize, maybe purposefully, is the tribes are not a private entity,” Saha told MTFP. “They’re a government, they’re a tribal government within the United States, and they have a responsibility as a government to manage the resource for the good of their tribe, but also, under this legislation, for the good of the American people. That means continuing to provide access, that means continuing to manage it for bison.”

Even with the no-precedent language included in the bill, Montana journalist, hunter, and angler Hal Herring remains skeptical. Herring has spent more than two decades covering the lands transfer movement, and his expertise on the issue serves as the backbone of the new David Garrett Byars documentary Public Trust, which premiered at the Big Sky Documentary Film Festival in Missoula this month. 

Speaking with MTFP, Herring was emphatic that he has no qualms with tribal management of the National Bison Range, and believes the tribes would “do a great job” running it. His skepticism, he said, is based on the bill’s primary sponsor, Daines, whose political party’s platform explicitly calls for the divestiture of federal public lands. Daines’ office did not respond to messages from MTFP requesting comment on the National Bison Range conveyance.

“I just think that more people who are public land owners need to be watching this to see exactly what this is going to mean, what the implications of this are,” Herring said. “It may be a great deal and it may be a really good thing to do. But I would like to see that somehow verified by an impartial party.”

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