APR versus the Phillips Conservation District

Hearing over bison ordinance held in Malta
Thursday, November 21, 2019
Hearing over bison ordinance held in Malta
Hearing over bison ordinance held in Malta

During public comment at the Nov. 12 hearing in Malta, Wayne French addresses board members (from left) Dave Hinman, Jay Bodner and Dale Krause.

Photo courtesy of Melody Montgomery

An important hearing over the future of bison grazing was held in the Montana Hi-Line town of Malta last week. On Tuesday Nov. 12, several dozen individuals gathered in the City Hall gym to hear legal arguments regarding the American Prairie Reserve’s Petition for Variance from the Phillips County Conservation District’s Bison Grazing Ordinance, which passed in June 2016 with 79% voter approval.

Variance, in non-legal terms, means an exception.

The two ordinance sections from which APR requested a variance are “all bison/buffalo must be tested and certified by a state veterinarian to be disease free,” and “bison/ buffalo must be branded, tattooed, tagged or otherwise identified to track its health status.”

Conservation Districts date back to a 1930s Congressional Act in response to the Dust Bowl, an ecological disaster. Today, Montana has 58 conservation districts, which have authority under the law to carry out programs that “conserve soil and water, protect streams and rivers, improve soil health, as well as improve wildlife habitat, improve the tax base, and protect the health, safety and welfare of the citizens of the state,” according to the Montana Department of Natural Resources and Conservation’s website.

A total of six Conservation Districts in Montana have passed bison grazing ordinances, including McCone, Valley, Phillips, Fergus, Chouteau and Carter.

Petition for Variance

Of APR’s current 419,291 acres, around 156,000 acres are in Phillips County. Of that, 56,907 acres are private land and roughly 100,000 acres are leased from the BLM, according to APR’s Senior External Relations Manager Beth Saboe. APR runs bison in Phillips County on its Sun Prairie Unit.

Regarding the initial request for variance, in a letter to the Conservation District and DNRC dated Oct. 28, 2016, APR’s Sean Gerrity wrote “We are pleased to be able to share with the Phillips Conservation District our approach to soil and water conservation and bison management, which we believe is grounded in the best scientific literature available.” In addition to enclosing documents pursuant to meeting the ordinance, APR filed a petition for variance from the two sections mentioned earlier, stating it is “justified to relieve great practical difficulties and unnecessary hardship,” and “a variance would not be contrary to the public interest.” Gerrity requested in this letter that a Board of Adjustment be appointed as authorized by Montana Code.

This is the first time a Board of Adjustment has been appointed to decide a petition for variance from a Conservation District’s law. However, Boards of Adjustment have been appointed for past matters such as zoning laws.

Parities involved

The Board of Adjustment members appointed to decide on the APR petition are Dale Krause, Jay Bodner and Dave Hinman. They were appointed by DNRC and approved by the Conservation District.

Selecting the board members was a process. For example, Sierra Stoneberg-Holt was initially selected for the board, according to a footnote in a DNRC filing. However, at the start of 2017, APR voiced concerns that Stoneberg-Holt previously exhibited bias. Stoneberg-Holt voluntarily resigned, replaced by Hinman in May of 2018. APR was also concerned about Hinman, according to a July, 2018 letter. DNRC responded it found no evidence of bias on the part of Hinman.

The following three legal parties were represented at the hearing: the Petitioner (APR, represented by attorney Timothy Presso); the Intervener (the Phillips County Livestock Association and the South Phillips County Cooperative State Grazing Districts, represented by attorney John Connors); and the Responder (Phillips Conservation District, represented by attorney Wally Congdon).

Rob Stutz, Montana Department of Justice’s Legal Services Bureau, served as hearing examiner, which can be thought of as similar to a judge. Stutz will provide a recommendation to the Board, but only the Board, not the hearing examiner, may reach a final decision on the petition.

Two motions heard

To begin the Nov. 12 hearing, Stutz introduced the members present and welcomed the public.

“I appreciate your interest in this important issue,” said Stutz.

Oral arguments for two motions were heard – a Motion for Summary Judgment from the counsel for APR, and a Motion to Dismiss, made by the Intervener.

APR’s Motion for Summary Judgment asserts no factual issues exist that need to be resolved through an evidentiary hearing. In non-legal terms, a summary judgment basically means a trial is unnecessary.

The other motion, the Interveners’ Motion to Dismiss, asserts APR’s petition was incorrectly filed and incomplete.

Motion for Dismissal

Connors, legal counsel for the Intervener, motioned for dismissal of APR’s petition, basing this argument on the original filing for the petition being not only incomplete, but also not filed by a qualified elector. He said under state law Title 13-1-01, the petition must be filed by a person registered to vote in Philips County. APR’s petition was signed and submitted by Gerrity, Connors said, who is not a resident of Phillips County.

Presso, legal counsel for APR, objected on the basis of new information, which was overruled. Presso then referred to this element of Montana Law a “hyper-technicality” and asked for a “common sense” interpretation, adding the variance proceeding was the only “safety valve” for corporations, partnerships, family trusts, etc., and without this, it would be a “constitutional train wreck.”

“It will ultimately blow up in their face because we’ll be in state court,” said Presso.

As a second point in the motion to dismiss, Connors said the petition for variance was unspecific with regard to bison carrying capacity and grazing locations. APR said the Conservation District has this information.

Responding for the Conservation District, Congdon said if part is stricken, the rest can stand, adding the overall decision on the petition falls to the Board.

“The thing speaks for itself … The law abhors a forfeiture,” said Congdon, quoting a Latin maxim.

While not stated at the hearing, one possible interpretation of Congdon’s response is if the petition were dismissed, it could simply be modified and re-submitted, thus delaying a decision.

Motion for Summary Judgment

APR’s attorney Presso argued an evidentiary hearing would only be necessary if there were facts in dispute, and in this case, it was instead a matter of overreach, he said.

“The Conservation District simply overreached its authority,” said Presso.

His primary three arguments were the legislature did not give disease-testing authority to conservation districts, disease testing should fall under the Department of Livestock, and the term “disease-free” is too vague, thus rendering the ordinance unconstitutional.

“How do you determine if [a buffalo] is disease free? Is it blood testing? We don’t know,” said Presso. “You can never 100 percent say something is disease free.”

Presso added when he asked a Malta veterinarian about the term, the veterinarian’s response was, ‘I don’t know. Sounds like a weird term.’

The Board’s Chair, Jay Bodner, asked if disease testing was referenced in state statute, either MCA 76-15-101 or -102. The Conservation District’s Congdon responded the authority is cited in both state laws. While exact details on disease types may not have been included, it was written into the ordinance with the expectation these details would fall to the experts - the state veterinarian, Congdon said.

“The District asked to provide certification. That is not vague,” he said. “We did not set an impossible standard.”

With respect to identification of bison, Congdon said this would also help protect wildlife, providing APR with the same protection as livestock producers.

“It’s a two-way street,” said Congdon.

Connors, counsel for the Intervener, argued whether the ordinance is constitutional would fall under the court system rather than the Board’s responsibility, referencing state statute MCA 76-15-725. The Board must apply the ordinance as adopted by the voters, Connors said, and while the Board may grant or deny variance, it does not have the power to nullify the ordinance.

Connors also argued that summary judgment is reserved for when there are not disputed facts.

“There are disputed facts; therefore, [the petition] is not eligible for summary judgment,” said Connors.

Connors started to speak on an outbreak of bluetongue in Phillips County due to bison, which received a strong objection from APR’s Presso, which was sustained. Stutz, the presiding officer, asked the Board to disregard this statement as evidence was not submitted to the briefing; no new information was to be submitted at the hearing. Connors then began to mention trichomoniasis and brucellosis in addition to bluetongue, which received another strong objection from Presso, also sustained.

“There is a reason APR does not want this heard,” said Connors, who was denied admission of Exhibit 5 because it was not disclosed in the briefing, thus not allowing APR an opportunity for prior review. Connors began to speak on overgrazing by APR, to which APR objected, also sustained, because these allegations, too, were not submitted in the briefing.

“The briefing was the opportunity to provide factual record,” said Stutz.

Connors was then advised to rephrase his statements as opinions rather than facts. Connors stated, in his clients’ and his opinion, the Phillips Conservation District enacted this ordinance to protect the livelihoods of the people of Phillips County. He added he expects the ordinance would be upheld if challenged in district court.

In rebuttal, APR addressed concerns over prejudice that may have been introduced by Connors’ statements. Presso asked the Board to avoid the “temptation to give undue weight” to items not submitted as evidence.

Public comment

During the public comment period, those who wished to speak were asked only to discuss items the Board has authority over; however some leeway was given by Bodner, the Board’s chair, who presided over the public comment period.

Steve Hertel, chair of the Fergus Conservation District, said a bison ranch in Fergus County adheres to their bison grazing ordinance.

“We have a bison ranch that has gone through an application to comply with the ordinance, and it did not cause undue hardship,” said Hertel, adding this ranch’s management application was accepted.

Perry Jacobs, a rancher south of Malta who is a contiguous neighbor with APR, commented that in the event of a brucellosis-positive test, infected animals are to be euthanized to prevent the spread of disease. Jacobs is concerned APR does not follow this protocol. Jacobs also suggested APR’s strategy is to rid the landscape of the traditional cattle rancher.

“Why would APR risk the spread of brucellosis to the wildlife they wish to preserve,” said Jacobs. “It seems rather callous to me.”

Maxine Korman addressed concerns over human health and undulant fever caused by brucellosis.

“We vaccinate all replacement heifers. Does APR?” Korman asked, adding she would like to see APR submit vaccination records.

Another member of the public noted stress levels would be reduced by this ordinance being upheld, and BLM grazing permits should come with responsibilities.

Similarly, another voiced concerns of what would happen if Phillips County were to become a brucellosis-surveillance area.

“Thank goodness we have an ordinance that has brought some of this to light so we can have a hearing,” this individual said.

Vicky Olson of Phillips County said, “I hope you find a way within the bounds of the law … to preserve the health in Phillips County.”

Wayne French said during his comment period the disease brucellosis can stay in the soil.

“We’re just downstream and within the watershed,” French said, relating the ordinance to the health of soil and water.

The last comment was from a private vet in Laurel who said bison, while not domestic, still have a place, and these ordinances can generate fear.

Next steps

The next step will be for the hearing examiner to issue a recommendation for the proposed decision to the Board. The decision could possibly take two weeks to a month to reach. The Board will then reconvene to hold another public hearing over the proposed decision.

If neither motion is granted, the case will proceed to evidentiary hearing, as laid out in the DNRC rules set Oct. 28, 2019, in a legal filing regarding this case.

Response from parties

Following the hearing, Jenifer Andersen with the Phillips Conservation District said, “The hearing went well. We expect the Board of Adjustments will see that the Phillips Conservation District acted within its statutory authority when creating the ordinance. MCA 76-15-101 gives Conservation Districts the authority to pass land-use ordinances and MCA 76-15-102 provides Conservation Districts to protect its natural resources, wildlife, tax base, public lands as well as the health, safety and general welfare of its people, among other items, which the Ordinance addresses.”

APR’s Beth Saboe said, “We thought the hearing went as well as can be expected, and our counsel presented a very compelling case that the Conservation District simply does not have the authority to impose disease testing regulations as laid out in this bison ordinance … We follow the same protocols as other livestock producers and meet and exceed all state and federal testing requirements.”