Robert Hoskins’ op-ed on FWP giving the quarantined bison to Ted Turner-
Op-ed in the Casper Star Tribune. Illegal plan just makes Turner richer. By Robert Hoskins
Hoskins: Illegal plan just makes Turner richer
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Ralph Maughan
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Another unfortunate truth is that the tribes did not submit proposals this go-round because they do not have the financial resources to maintain the quarantine bison under the currently established protocols of the program.
And previous proposals submitted by tribes in Montana and South Dakota were undermined by the state veterinarians, thus precluding the translocation of the quarantine bison to reservations in those states regardless of the quality of the proposal.
I love it. Robert holds no punches. He tells it like it is.
Petticoat Rebellion,
Thanks. I wondered why there were no tribal proposals.
Another thought…If Ted Turner really wants to help out with the quarantine bison, he should work the Intertribal Bison Cooperative to identify a candidate tribe that could accept these bison and offer financial support to assist them in the effort. That would be the selfless thing to do, intead of offering to commercialize wild bison that are a precious genetic resource for the ecological restoration of the species.
I don’t blame Turner so much for this as I do the fish and game department for their continued mismanagement of bison for the sole benefit of the livestock and game industry. Turner is a bit of a blowhard, to put it mildly. I had the chance to have lunch with him and his latest arm candy a few years ago at a Vermont law school function. Ted definitely is a self-absorbed human being with some good instincts about wildlife. Like most of us…he is not without that mix of ideals and principles and flaws….He just has a LOT more money to throw around to make things happen, good and bad.
As for the tribes, I don’t know what their status as separate nations does to their ability to work with the states, and the states ability to frustrate them. I never took Indian law in law school; and it is the one class I regret not taking, but the schedules never seemed to work out. Maybe I can audit Charles Wilkinson or David Geitches’s Indian law class at CU law school some semester.
I like this article—-it makes it seem like the Montana Dpt. of Wildlife would trip over itself to appease anybody with money; regardless of whether it’s justified or they agree with their position. I know Turner has locked horns with them before. Seems like they’ll bend over and take it as long as you have the green.
JimT
If you get the chance to audit Wilkinson’s Indian Law class, do it. He is an incredible teacher and historian of the West (grazing, water, mining). You might want to snag a copy of his Federal Public Land Law text written with George Coggins, and you will get the answer to your TGA – FLPMA question you reently asked of Ralph on another thread.
In 1985 I presented a law student petition to then Dean Betsy Levin, that eventually resulted in Charles being hired as permanant faculty (he had previously been a visiting professor from U of Oregon).
You probably know Getches (along with Richard Collins also at CU) were the brains behind the litigation that lead to what we now refer to as the Boldt decision regarding treaty allocation of salmon. Indian law is now becoming a required testing area on bar exams in the West.
I agree with Jim T. It seems the most salient line in the piece is this one:
“”Because FWP bureaucrats incompetently failed to identify and secure homes for quarantined bison before beginning the (fraudulent) quarantine feasibility study, they’re stuck with more bison than they can handle. “”
Turner obviously offers them an escape from their ineptitude but the article seems to chastise Turner’s motives more than FWP’s incompetence. Sure Turner is there to help Turner (otherwise he wouldn’t be Turner, right?) but he is helping solve a problem that I don’t think he had a hand in creating.
Or maybe I’m wrong and he did….
Some points in response to the above comments:
–the Fort Belknap Indian Reservation (Gros Ventre and Assiniboine) in northeast Montana did submit a proposal this go-round, but it was deemed “incomplete.” There were two other proposals: from Guernsey State Park in eastern Wyoming and a zoo proposal. I don’t know which zoo yet. I hope to get copies of all the proposals next week.
–A rumor we are trying to track down is that Montana Governor Brian Schweitzer has cut a deal with Turner for the bison and ordered FWP to make it happen, regardless of pesky legalities. FWP’s determination to give these bison to Turner despite his failure to meet the the criteria of the RFP certainly stinks like a dead cat under the political porch. Even if that isn’t the case, I feel perfectly justified in criticizing Turner as well as FWP. These are Yellowstone bison, a national and regional treasure; their unique genetic signature, when bred into Turner’s domestic herd, would be worth millions in marketing and herd development. Turner isn’t doing anyone any favors in this proposal, except maybe Brian Schweitzer, who’s trying to smooth over his longtime feud with the Montana Stockgrowers. Turner would profit handsomely from the transfer of publicly owned, Yellowstone bison into his private hands–where they would remain until sold as seed stock to other private herds. In every sense of the word, a transfer of these bison to Turner as livestock would violate the public trust in wildlife. This is conservationists’ biggest criticism of the deal.
–It’s not as if these bison have nowhere else to go in Montana other than Turner’s ranch. Glenn Hockett and Jim Bailey of the Gallatin Wildlife Association have advocated, for example, that these bison could be transferred to the FWP-owned Robb-Ledford Wildlife Management Area near the Ruby Reservoir to restore wild bison to southwestern Montana. Or, they could go back to Yellowstone National Park, from which the original quarantine bison were taken under the authority of the IBMP and YNP. (Oh, but that would be a backward step for the IBMP–can’t have that).
–One benefit to this brouhaha is that it perfectly demonstrates what I’ve been calling the “brucellosis fraud.” One of the great justifications and promises for the quarantine program is that these bison, once declared brucellosis-free, would be used to restore bison to both public and tribal lands on the Great Plains and elsewhere as a public, not private, resource. They would be pioneers in recreating the Buffalo Commons, we were told. However, as Petticoat Rebellion notes above, state vets are opposing and blocking the transfer of quarantine bison into their states, even to tribal lands, due to the alleged brucellosis risk to the local cattle industry–even though APHIS, which is a so-called partner in the quarantine program, would certify these bison brucellosis-free. (It was the supposed brucellosis risk to Wind River Reservation cattle that killed the Northern Arapaho proposal to bring quarantine bison to Wyoming). Quarantine bison now find themselves in the classic Catch-22–all gussied up in brucellosis-free duds but nowhere to go because nobody wants wild, free-roaming bison at the dance. This fact of continued opposition from the livestock industry to the transfer of wild, certified brucellosis-free bison to public and tribal lands undermines the legitimacy of the quarantine program. It also helps argue against the IBMP, which is the ultimate fraud.
–Ultimately, what we’re seeing is the continuing opposition of the livestock industry to wild, free-roaming bison in Montana and other states, on either public or private lands. If you all recall, the ostensible purpose of the IBMP is to conserve wild, free-roaming bison in the Greater Yellowstone Ecosystem and elsewhere while sustaining the economic viability of Montana’s livestock industry. But the livestock industry, through all its actions against bison, has demonstrated that it doesn’t care about the “wild, free-roaming bison” part of the IBMP and will do everything in its power to obstruct it. It’s determined hell or high water to treat all wild bison as livestock. And that’s all we’ll ever get under the IBMP. Another reason why the IBMP is a fraud.
–I’ve been asked to do a longer piece on this issue for New West. Look for it next week.
RH
Robert – it was my understanding that Turner was to play a part in the Robb-Ledford plan. His land holdings are intermingled with Robb-Ledford on the west slope of the Snowcrest. Could this not be the first step in relocating the surplus bison in that area? Not overlooking the issues pointed out however, that area has great potential.
Of course it has (had?) great potential. I’d point out however that the Snowcrest/Robb Ledford proposal, which would have been a public-private partnership in which bison would remain a public trust, was made by the Gallatin Wildlife Association to Turner. My understanding is that Turner has never shown much interest in it, and to date, the proposal has gone nowhere. Perhaps now it will.
The key is that bison remain a public trust.
RH
Wilderness Muse,
I re-read FLPMA, and it is indeed now subsumed in the FLPMA standards, supposedly, but legally, there are still some valid separate provisions. But, for all intents and purposes, FLPMA is the law and reg set to look to. I haven’t done any grazing or forest plan appeals in a long time, so it slipped the old mind. Happens as those synapses die off…VBG…
So, what kind of practice are you doing?
I went to UofO law school in the 80s, and had Charles for a seminar on one of his trips back to Oregon from visiting at various law schools across the country. We run into him from time to time at social and environmental functions here in Boulder. David G. is, in my mind, one of the most under-appreciated environmental minds in the West; we have known him for a long time through mutual professional endeavors, and CU is incredibly fortunate to have him as Dean. There was some local chatter at one point about getting behind an effort to get him the Solicitor’s position at Interior, but he really wasn’t interested in going to DC, and I don’t think CU would have let him go anyway. A nicer, more humble, talented teacher and writer you won’t find. His “nutshells” on Western Water Law are really all the layperson needs to read to get a very good basic understanding of water law and its complexities. He doesn’t have time to teach anymore, unfortunately, and Charles always seem to be on sabbatical or something. We did use the Coggins-Wilk. text in my public lands class when I took it…decades ago, now. I am considering auditing a Wildlife Class that will be offered next semester, but my wife is teaching it, and me being in the class may make her uncomfortable, so we shall see. Indian law really is a gap in my background, and I would like to address it some day.
I highly recommend Dale Goble and Eric Freyfogle’s casebook on wildlife law. It is especially good on the history of wildlife law. I refer to it constantly.
RH
My wife is going to use that, but several teachers at a few other law schools who teach wildlife.Lewis and Clark, Oregon, etc have expressed some frustrations with the way it is organized. Karin knows both authors as well in a casual way and respects and likes them. I think it is just a matter of approach fitting the writers, and some users thinking in a different way. She says it has all the necessary stuff, up to date, etc. I do believe she will focusing the ESA part on the wolf reintroduction history, right up to the current battles, which should be very interesting for the students…if they are active in class participation. There is nothing worse than teaching a bunch of students with their heads down, tapping away on laptops, and never getting into the “Socratic debate”. One of the reasons I chose Oregon over places like Michigan and Stanford and Yale at the time was the fact that ALL of the environmental faculty then had been practitioners, not academics only, and that was what I was interested in…how the law and regs work in the real world. Since then, I am sad to say, my alma mater has gone in a more academic direction, and I would now not choose to be a Duck…but probably head off to Lewis and Clark who have an excellent environmental law program.
JimT
It is unwieldy for teaching, I agree, but I think the introduction to the casebook notes that it was intended for picking and choosing, not to be slogged through in toto. As a reference, it is indispensable for anyone who works in wildlife conservation, even us laymen. Michael Bean’s book on wildlife law is also very good, albeit a bit dated.
RH
I once attended a seminar co-taught by Dr. Goble and Dr. J. Michael Scott at UofI about the ESA on its 30th anniversary. I would recommend any text produced by Goble His UofI web page: http://www.law.uidaho.edu/default.aspx?pid=65729.
I found him, and Dr. Scott to be a formidable team of wildlife advocates in the first years of the BushCo admin. I would like to read this book myself.
As for federal Indian Law, I took a class for my BA and in prep for my MPA degrees. The states are usually in conflict with the intentions and attempt of tribes to better their lives in all aspects and at every turn. It usually boils down to the states with reservation within their borders trying to take some treaty rights away if not land, from the tribes.
I do know, from knowledgeable persons, that there were two specific reasons why the Northern Arapaho would not take the bison. On one hand, the Arapaho, themselves, voted down the opportunity due to a contract with Whole Foods over organic beef from their herds, vaccines and the stigma of YNP bison killed the plan to take them. A second and equally important issue is that the N. Arapaho are there, at Wind River, with the consent of the Eastern Shoshone who are the proprietors, so to speak, of the property they inhabit and would not have allowed it because they don’t get along very well with the Arapaho being antagonists over many issues of property ownership among other things. Both tribes raise cattle.
Most issues concerning tribes requires one of three actions to make changes: and Act of Congress, an EO from the prisident or a SC decision. States can and do try to make decisions over treaty rights and conditions with law suits but usually they are ultimately decided in federal court.
It is no surprise when a state tries to usurp the rights and intentions of tribes when anything they want to do goes against the state’s position. In this case, I could see where the state(s) would try to circumvent the system to get their way without going to court. But the court also has to grant certiorary (sp-?) before the hearings can begin. If the courts don’t agree to hear them, that’s the end of it until another approach is found and presented.
As for Turner, I suspect that he might be trying to go around the state BS and do something none of us have considered. He was-via the Turner Foundation, a proponent of “wild, free-roaming” concept and supported the BFC until the BushCo admin labeled them ecoterrorists which jeopardized all the other groups that the Turner Foundation was helping to fund. It’s a long, convoluted history that bears scrutiny from all angles. All the same, Robert could be right.
Thanks for bringing this to the attention of the “glazed over eyes” of the public once again, Robert.
Michael DEFINITELY needs to update his book, and I have heard rumors that effort is “in the process”. But, his new duties in the Administration will put that process to a halt, in all likelihood.
JimT–yes, Bean’s book was very readable, and an update would be welcome. I certainly would buy it. I did not know he had joined the administration. But then, here in the boondocks of Wyoming, I don’t hear everything that happens.
Salle–thanks for adding the details on the Northern Arapaho quarantine bison proposal. Above, I just wanted to make a quick reference to it and move on. I think brucellosis was the umbrella reason for the ultimate rejection of the proposal, but yes, there were other factors as well, as best I can tell. It does look as though the Arapaho Ranch contract with Whole Foods for organic beef played a role (unwanted competition), as well as the disapproval of Arapaho and Shoshone cattle ranchers. It’s my understanding that various proposals to bring bison to the Rez have been made over the years to no avail, primarily due to the opposition of cattle ranchers of both tribes. It appears to be a minority of Arapaho and Shoshone who want bison.
However, I don’t think it’s correct that the Shoshone have any kind of “eviction” hold or control over the Northern Arapaho, if that’s what you are implying as another cause of the rejection of the quarantine bison. Yes, it was originally the Shoshone reservation, and the Arapaho were put there by the US Government after the Indian Wars with Shoshone (Chief Washakie) approval. But that doesn’t mean that the Shoshone have a superior political position that allows them to reject Arapaho desires out of hand. Otherwise, having a Joint Business Council wouldn’t make much sense. It is true that there are many conflicts between the two tribes that go back a long way, at least to the early 19th century, and the old conflicts are the source of many conflicts today.
I will say it is very difficult to find out the reason for things that happen on the Reservation–and I live on the Rez. I simply try to be respectful and enjoy living here. You cannot believe how quiet it is here.
As for Turner, I am not convinced that he is a savior of conservation as so many people seem to think. Yes, he does good things, but he always does them as if he’s the sovereign and sole actor. He’s got the money and he does what he wants, regardless of the impacts and consequences. I can perceive little concern on his part for the commons, the common good, or the public trust. Ted’s concerned about Ted’s concerns, and that’s about it. It seems hit or miss whether those concerns match up with the public interest.
In any case, his demand to benefit financially from the transfer of quarantine bison to the Flying D and the reclassification of their offspring as private property invalidates the proposal, even were he a saint. What need have saints for wealth?
RH
RH,
Points well made. It has been my understanding that the business counsicls of the two tribes on the WR rez function separately and only on occasion come some agreement. I may not have all the facts but that is how it was described to me by a former business council member a couple years ago and recently.
I wonder what it’s like to live on the rez. Are you a member? I have asked many questions concerning the two tribes’ interactions, there is a lot of animosity between them and often over property rights which the Shoshoni insist is theirs to determine within the rez including the placement of fences and much contention over activities of the Arapaho. I have heard things that would piss me off if I were there and observing their actions. I am certain it is not all inclusive but it sounds like there are current issues that are just as upsetting as are old issues. Can’t go into that as I do not have permission to discuss these issues further though I have been told of happenings that most would find upsetting regardless of where they take place.
Salle
No, I’m Welsh, English, Scotch-Irish, and German, born in North Carolina. I live on “Dawes Act” land on the western side of the Rez.
Your friend’s description of current affairs is correct, as far as I can tell; there are independent tribal councils that deal with tribal issues, but the Joint Business Council deals with reservation wide issues. The intertribal animosity you describe is as strong now as it was a century ago, over the things you mention, among others. Usually, when things get to the JBC, they simply stall because the two tribes cancel each other out except in the most minor issues. Even then, it takes a while. For example, it took the local phone company in Dubois 3 years to negotiate a right of way for a fiber optic line through the Rez to Dubois on the way to Jackson.
And then you add on top of that the white residents of the Rez, living on what used to be tribal land until Dawes Act allotments ended up in white hands–which was the intent of the law–and you have another source of conflict. After all, the Dawes Act allotments are the most productive lands on the Rez.
And then, don’t forget water and the water wars with the State of Wyoming, which, to a large degree, the tribes won, although they still have to comply with State water law. The tribes won senior water rights from the US Supreme Court, but the attempt to make instream flow a beneficial use has failed.
RH
This has been the best discourse on a topic for a long time – thanks to all involved!
Robert – I guess I’m trying to get out of “homework” by not reading Professor Goble’s work. But, since you (and Salle) are already well-versed on his writings, could you comment on Professor Goble’s presentation at last month’s Yellowstone Grizzly meeting in Jackson?
For those who weren’t there, Professor Goble gave a presentation on “Conservation Dependent Species” and offered his perspective on Judge Malloy’s order to relist GYE grizzlies. He seemed to imply that Judge Malloy was setting up an impossibly high standard by insisting on clear triggers for relisting, and for insisting that FWS adequately and realistically address the decline of whitebark pine.
SAP
I am mostly familiar with Goble’s work on the public trust, not the ESA. And I have not “plowed” through the casebook from cover to cover. I use it as a reference.
With the caveat that I am not an attorney–I merely took Deb Donahue’s public lands law course in grad school, and have an interest in wildlife law–here’s what I think.
Your description of his concerns is quite accurate. However, I couldn’t for the life of me understand why “insisting on clear triggers for delisting and insisting that FWS adequately and realistically address the decline whitebark pine” are bad bad things, given that the ESA is the most rigorous of conservation laws, and so imposes high standards on the FWS,at least to my point of view. After all, whitebark pine really is in trouble and there’s no good evidence that bears will be as adaptable to the loss of whitebark pine as the FWS claims, and Wyoming’s bear plan is highly prejudicial to bear conservation outside the PCA. These things need to be sorted out before we turn the bear loose to state management, especially here in Wyoming, where the most bears are and where bear politics colors every decision made about bears.
I spoke with him briefly at the break after his presentation, and it appears that he believes that Judge Molloy sinned against agency discretion; in compelling agency action to such detail and within such inflexible parameters, Judge Molloy has made it virtually impossible to delist grizzlies, much less any other species, by limiting agency discretion to make decisions based upon its ostensible scientific expertise. In short, Judge Molloy improperly imposed his own interpretation (which is really the interpretation of conservation groups, I suppose) of the science and management of bear conservation on the agency. In other words, Judge Molloy overstepped himself.
I don’t agree with Goble’s interpretation of Judge Molloy’s decision. However, it is the FWS’s intepretation, and that may be why Goble was invited to speak by the YGCC.
RH
Robert – thanks for your thorough reply. I agree with your assessment, and was kind of surprised at the tenor of Professor Goble’s presentation.
I understand that agencies would be paralyzed if they had zero discretion or latitude, or if the bar to challenging their discretion was very very low. But this case seems to be a different matter — agency scientists in peer-reviewed journals stating that a rapid loss of whitebark pine would be catastrophic for GYE grizzlies; experts (like Jesse Logan) on beetles and whitebark saying the end is near; yet FWS seeming to deny both points.
There seems to be a “well, what do you want us to do?” attitude about whitebark pine (amongst those who will acknowledge it’s in dire trouble, that is). I understand that there is no easy fix to the challenges facing GYE grizzlies as whitebark declines. The easy answer, though, is that when a listed species faces an insurmountable ecological challenge, the least we can do is keep them listed and put strict limits on mortality.
We don’t have a “Science Branch” in our system of government to resolve disputes among scientists. If agency scientists choose to ignore substantive criticisms from other scientists, the only remedy is to take it before a judge. Someone with a law degree is going to be asked to weigh evidence and rule on matters of complex ecological science.
SAP
Agreed.
Well, in answer to the “what do you want us to do” attitude of the FWS, I’d say, in addition to keeping them on the list and reducing mortality, how about letting them expand into all biologically suitable habitats? From a political standpoint, surveys done by Responsive Management for the Wyoming G&F Department make it clear there’s majority support in western Wyoming for bear expansion as long as conflicts are quickly and fairly resolved.
That’s way different from the special interest (e.g., Stockgrower) demand for managing bears at “low densities” (i.e., no densities) outside the PCA.
RH
When this surprise (to me) relisting happened that’s the first thing I suggested — let the bears expand into more habitat.
The agencies keep saying “well mortality is within limits” (except some of the time such as 2008). “The grizzly population is still growing” (although it won’t apparently this year).
These reactions seem to be irrelevant to the judge’s order if I understood it correctly.
I too was pleasantly surprised by Judge Molloy’s ruling. I thought for sure that the FWS had so manipulated the science that it would win the lawsuit on the agency discretion issue. It wasn’t obviously a slam dunk as wolf delisting was and still is.
The FWS’s sole goal is to delist the bear. Perhaps that overtly political goal blinded the bureaucrats to their own mistakes.
RH