Montana Gov. Greg Gianforte (R) and the state are appealing the decision made by an administrative law judge to deny the petition for stay filed by the state and other organizations regarding the decision to allow American Prairie to graze bison on Bureau of Land Management (BLM) land in northeast Montana.
Gianforte’s office filed a “statement of reasons” briefing to the U.S. Department of the Interior’s Board of Land Appeals (IBLA), requesting a stay on Interior Department Administrative Law Judge Veronica Larvie’s decision in October. The administration highlights several failures of the decision, stating the decision failed to analyze the state’s arguments and “appreciate the harm and public interest implicated in denying the requested stay.”
According to the Bozeman Daily Chronicle, Larvie ruled the appeal “‘raised significant doubts about the adequacy of BLM’s analysis and the sufficiency of the public’s opportunity to meaningfully participate,’ but denied the stay on the grounds that the state had not shown the likelihood of immediate harm.” Larvie further stated the state’s request was “‘undermined’” by American Prairie holding another state lease that authorizes grazing.
State’s argument
The Gianforte administration’s press release argues the judge failed to analyze the state’s legal arguments sufficiently.
“This summary denial inadequately addresses the Executive’s statutory authority arguments and completely ignores the Executive’s regulatory authority arguments,” the statement read, restating the arguments in favor of a stay.
The administration also argues Larvie failed to address any harm caused to the state and limited its review to the harm caused on one allotment rather than all allotments. The statement of reasons explains that denying a stay infringes on the state’s ability to manage state trust lands. The statement of reasons asserts BLM exceeded its authority to issue grazing permits to “non-production-oriented, wildlife management focused” conservation herds.
The briefing also criticized that the judge failed to adequately analyze public interest, saying that the public is in favor of a stay, stating, “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 BLM, bending the laws and exceeding the scope of its authority.
“Denial of the stay was material legal error, failed to apprehend the facts and failed to demonstrate a rational connection between the facts and decision. For these reasons, the Executive respectfully requests that IBLA issue a stay of the Final Decision, pending resolution of its appeal,” the state of reasons concludes.
Background
On Sept. 24, 2019, American Prairie, formerly known as American Prairie Reserve, submitted a new grazing proposal after withdrawing a previous application to graze bison on seven public land allotments, asking for year-long continuous grazing on three allotments and modified permits on the others. The requested permit included the removal of some interior fencing and the construction and modification of some interior and exterior fencing.
In July 2021, BLM issued a draft environmental assessment (EA) and finding of no significant impact, and held one virtual meeting for public comment. According to the statement of reasons, a total of 2,748 public comments were received, which led to six changes in the EA.
On March 29, 2022, BLM issued a notice of proposed decision, approving seasonal grazing with pasture rotation on four allotments and year-round grazing on three allotments—two of which had been previously authorized for bison grazing. The state, along with the Montana Department of Agriculture, Montana Department of Livestock, Montana Department of Natural Resources and Conservation (DNRC), and the Montana Department of Fish, Wildlife and Parks appealed the final decision in August 2022, requesting a stay pending appeal.
On Oct. 13, 2022, Larvie issued her decision. Subsequently, on Oct. 27, 2022, DNRC sent a letter to American Prairie notifying them that bison are not authorized to graze or make modifications to fencing on two allotments.
In November 2022, American Prairie responded, stating they have no immediate plans for the Flat Creek Allotment and will make some fencing modifications to the White Rock Coulee Allotment. The statement of reasons says the proposal by American Prairie was not analyzed or approved by BLM. — Charles Wallace, WLJ editor
