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Neighbors Against Bison Slaughter v. National Park Service

United States District Court, D. Montana, Billings Division

December 2, 2019

NEIGHBORS AGAINST BISON SLAUGHTER and BONNIE LYNN, Plaintiffs,
v.
THE NATIONAL PARK SERVICE; THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE; DAVID BERNHARDT, Secretary of the Interior, in his official capacity; CAM SHOLLY, Superintendent of Yellowstone National Park, in his official capacity; and SONNY PERDUE, Secretary of the Department of Agriculture, in his official capacity Defendants.

          ORDER

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

         Before the Court is the Plaintiffs' motion for a preliminary injunction. (Doc. 4). For the following reasons, the motion is denied.

         I. Background

         This case is about the tension between local residents and several Indian Tribes and hunters over a small patch of public land near Gardiner, Montana, where bison roam from Yellowstone National Park in search of food during winter. In 2005, a convergence of federal, state, and tribal interests opened bison hunting on the public land to Indian Tribes and Montana hunters. Every winter since, Indian Tribes and Montana hunters have harvested roaming bison on the public land. The local residents (the Plaintiffs) own homes and other property next to the public land and object to the bison hunt for several reasons.

         The public land in question is a quarter-mile-square area at the mouth of what is known as Beattie Gulch. (Doc. 4-11 at 2). In recent years, the number of Tribes claiming treaty rights to hunt bison in the area has risen to six. (Doc. 4-12 at 6). This has led to the harvest of as many as 200-300 bison during the hunting season from the small plot of public land. (Doc. 4-11 at 2).

         The Tribes describe the bison hunt as an important cultural and spiritual use of land which subsists their people. For significantly longer than records were kept, the Tribes have hunted bison in what is now Montana, sometimes traveling hundreds of miles to do so. (Doc. 31 at 1-10). The Nez Perce, for instance, were known to travel as far west as the Pacific Ocean for fish and as far east as Montana for bison. (Doc. 31 at 4). Likewise, the Yakima Nation's ancestors fished the Columbia River and hunted bison in Montana and Wyoming. (Doc. 31 at 8; see also Yakama Indian Nation v. Flores, 955 F.Supp. 1229, 1238-1240, 1263 (E. D. Wash. 1997)). All of the Tribes recount the deeply fundamental connection their people and history have to bison, an inherent bond between human, land, and animal forged since time immemorial. (Doc. 31 at 1-10). The Tribes took it upon themselves to preserve wild herds of bison after the species was nearly destroyed for political reasons. (Doc. 31 at 9, 11-12). Because of this sacred bond, the Tribes specifically negotiated with the United States during Western Expansion to preserve their sovereign hunting rights to bison:

"The exclusive right of taking fish in all the streams .. .is further secured to said confederated tribes and bands of Indians ... together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon unclaimed land." Yakima Treaty 1855, 12 Stats., 951.
"The exclusive right of taking fish ... the privilege of hunting, gathering roots and berries and pasturing their stock on unclaimed lands in common with citizens, is also secured to them." Walla Walla Treaty 1855, 12 Stats., 945.
"The exclusive right of taking fish ... is further secured to said Indians ... together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land." Hellgate Treaty 1855, 12 Stats., 975.

         Today, the bison hunt is a practice of culture preservation for the Tribes. It serves as a ceremonial activity and social gathering, a method to connect with ancestors who walked the very same plains for millennia. (Doc. 31 at 4). Equally significant, the bison hunt serves the same vital purpose it did then. Bison meat is an integral part of the Tribes' diet; bison hides are used to make clothing and other traditional items. (Doc. 31 at 12).

         The Tribes manage the bison hunt through coordination with each other and the federal and state agencies involved. (Doc. 31 at 14). Each summer, the Tribes and agencies discuss bison hunt objectives, dates, safety concerns, no shooting zones, access, and law enforcement. (Doc. 4-12 at 6). Participants in the bison hunt must attend the annual hunt orientation. (Doc. 31 at 1-10). For Beattie Gulch in particular, the Tribes and agencies engage in daily briefings and weekly phone calls to coordinate activities and report harvest data. (Doc. 4-12 at 6-7). To make the hunt safer for property owners in the area, the Tribes and agencies established a 200 yard "clean zone" near Old Yellowstone County Road where hunters are not allowed to shoot. (Doc. 36 at ¶ 3; Doc. 4-1 at v).

         The Plaintiffs describe the bison hunt as a chaotic killing field. On some days, 20-30 Indian hunters line up along the land, waiting for the bison to cross the boundary. (Doc. 4-11 at 2). When the bison cross, the hunters gun down the bison simultaneously. (Doc. 4-11 at 2). After the bison are field dressed, unsightly gut piles are left strewn around the field, attracting bears, wolves, and birds. (Doc. 4-27 at ¶¶ 30-33).

         The so-called killing field has complicated the lives of the Plaintiffs in several ways. The Plaintiffs are afraid a stray bullet is going to hit them or their homes. They have trouble renting cabins to tourists during the hunting season because the killing field is unpleasant. The gut piles risk the spread of Brucellosis, a disease that can cause undulant fever in humans. Lastly, the sight of bison being shot is traumatic and robs them of the opportunity to photograph or otherwise enjoy the bison. (Doc. 4-1 at 36-42).

         For the past couple of years, the Plaintiffs have voiced their concerns about the bison hunt to the Tribes and federal and state agencies. Due to what the Plaintiffs say has been an insufficient response, they filed this lawsuit on October 21, 2019, in federal district court in Washington D.C. to enjoin the bison hunt for the 2019 hunting season. (Doc. 1). On October 23, the Plaintiffs filed a motion for a temporary restraining order and a preliminary injunction. (Doc. 4). Some of the Tribes' bison hunting season was already underway. (Doc. 4-12 at 7). The state season was set to begin November 15. (Doc. 4-12 at 7). On November ...


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