Gov. Gianforte appeals judge’s APR Bison Grazing Decision

Wednesday, December 28, 2022

HELENA, Mont., Dec. 23 – Governor Greg Gianforte today announced his administration has filed its briefing in the appeal of a judge’s decision denying the state’s petition for stay after the Biden Administration approved the American Prairie Reserve’s request to graze bison on Bureau of Land Management land in northeast Montana.

In briefing, entitled a Statement of Reasons (statement) and submitted to the U.S. Department of the Interior’s Board of Land Appeals, the Gianforte administration again requested a stay of the decision pending appeal, highlighting failures by the judge in denying the stay this fall.

First, the administration argues the judge failed to sufficiently analyze the state’s legal arguments.

“This summary denial inadequately addresses the Executive’s statutory authority arguments and completely ignores the Executive’s regulatory authority arguments,” the statement reads, restating the arguments in favor of a stay.

Second, the administration asserts that in denying its petition for stay, the judge failed to properly assess the magnitude of harm to the State because it limited its review to the harm caused to one allotment.

“The Final Decision authorizes permits on all allotments in this case. The Executive requested a stay of the Final Decision in its entirety—not just those portions APR feels inclined to affect on a given day. To find otherwise subjects the Executive to an untenable game of whack-a-mole,” the statement continues. The statement explains that the denial of a stay infringes on the State’s ability to manage state trust lands.

Following the judge’s order, DNRC notified APR that bison are not presently authorized under state law to graze state trust lands on several of the allotments at issue in the case. In response, APR expressed plans to implement a new fencing regime in an effort to avoid state trust lands and utilize a portion of the allotment. The administration highlights this departure from the BLM’s Final Decision in its statement.

“Allowing APR to proceed in deviation from a contested Final Decision, in the absence of analysis and public involvement, is not only legally fraught but disingenuous to the process leading to the Final Decision.”

Finally, arguing the judge failed to adequately analyze public interest, which weighs in favor of a stay, the statement continues, “It is not in the public interest to permit such an offense to persist, especially pending appeal.”

The statement also contends public interest weighs against usurping the State’s authority over state trust lands as well as against federal administrative agencies, like the Bureau of Land Management, bending the law and exceeding the scope of its authority.

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