Phillips County News - One Nation, Under God

By Mark Hebert

Bison Ordinance hearing held at Malta City Hall


November 20, 2019

Cody Oxarart

Earlier this year, Phillips County Rancher Cody Oxarart captured a picture of an American Prairie Reserve buffalo near a "Save The Cowboy" sign on his ranch.

Lawyers from the American Prairie Reserve (APR), the Phillips Conservation District, and the Southern Phillips County Co-Operative Grazing District and Phillips County Livestock Association spoke in front of the State of Montana Department of Natural Resources and Conservation (DNRC) in Malta last Tuesday, November 12, at Malta City Hall.

The hearing was regarding a petition for a variance from the Phillips County District's Ordinance 2016-1 which was passed in the June 2016 primary election in Phillips County and earned 79-percent of the vote. (1168 in favor and 315 against.)

In October 2016, APR requested a variance from the ordinance, according to court documents. Specifically, APR requested a variance from Sections 7(1)(b) and 7(1)(e), citing great practical difficulties and unnecessary hardship as a reason for the request.

Section 7(1)(b) requires: "All bison/buffalo must be tested and certified, by a state veterinarian to be disease-free." Section 7(1)(e) requires "bison/buffalo must be branded, tattooed, tagged or otherwise identified to track its health status."

As a result of the APR's variance request, a DNRC appointed Board of Adjustment was created to hear the APR request.

For just over three and a half hours (with three recesses in-between) lawyers and members of the public spoke - about 60 members of the public were in attendance throughout the day - in front of the three-person Board of Adjustment comprised of Dave Hinman of Malta, Dale Krause of Fort Benton, Mont., and Jay Bodner, Presiding Officer, from Helena, Mont. The Montana Department of Justice Hearing Examiner at the meeting was Rob Stutz.

Following the day's hearings, Bodner said the Board would take recommendations from Stutz and hold another public meeting, to be announced, to make a final ruling on the variance request.

Arguments on the day began with Southern Phillips County Co-Operative Grazing District and Phillips County Livestock Association attorney Jack Connors asking the board to dismiss the variance request, arguing it was not applied for by a qualified elector (claiming APR is an organization and not a person with voting rights in Phillips County, thus not allowed to make the request) and then argued that the variance petition was incomplete.

Reading from Montana Codes Annotated 76-15-723, Connors said "a qualified elector may file a petition with the board of adjustment."

"It says the individual must be, one, a human being, and two, a resident of Phillips County," Connors said.

He said APR fails in the first step as they are a non-profit organization and said fails the second step as none of APR's employees, who live in Phillips County, are officers for APR and did not sign the petition.

Connors said that the second motion to dismiss the variance was due to APR not submitting a complete application for the request.

"The ordinance requires APR to provide information regarding the carrying capacity of the lands where bison will be grazed," Connors said. "In their draft responses to the ordinance, APR indicated that it was going to address carrying capacity."

Connors claimed that APR deleted their information for carrying capacity before submitting their final version of the petition for the variance.

"The board cannot assess the merits of the APR's petition for a variance and the likely impacts on the environment," Connors said. "This board should not consider the application for the variance."

APR attorney Timothy J. Preso said that the board had already determined in April of this year that "a legal entity may qualify as a qualified elector for the purposes of this proceeding if that entity has a principal or officer who is a qualified elector within the district...we are talking about a situation where conservation districts can enact land-use ordinances that affect private property within the conservation district. Not all of that private property is held in the name of a natural human being. There are corporations. There are partnerships. There are family trusts."

Preso said that APR's request for a variance is represented by a qualified elector as their land manager in Phillips County is a resident of the district.

As for the claim that the APR application for variance was not complete, Preso said the Phillips County Conservation District received the carrying capacity report with APR's "Bison Management Plan."

"There is no incomplete petition," Preso said.

During summary judgment, Preso said that the Montana State Legislature does not give conservation districts the power to impose disease testing on animals, but rather those duties fall upon the Montana Department of Livestock.

Preso said that the portion of the Phillips County Conservation ordinance which states all bison/buffalo must be tested and certified, by a state veterinarian to be disease-free, is unconstitutional and diseased livestock are a State issue, not a conservation district issue.

"The legislature explicitly gave that authority to somebody else," Preso said, "which is the Montana Department of Livestock...gave it basically, full authority, of protecting this State from livestock disease."

Preso said that the Montana Department of Livestock has an extensive set of rules that everyone must already comply with in the area of livestock disease.

Connors said that in the opinion of the Southern Phillips County Co-Operative Grazing District and Phillips County Livestock Association, APR's "reckless animal management endangers the livelihood of the people of Phillips County."

A total of 12 people spoke during two different public comment portions of the Board of Adjustment meeting - Phillips County residents and people from outside the county - including South Phillips County rancher Perri Jacobs.

"I am a human being, qualified electorate of Phillips County, and My husband (Lee) and I ranch 50 miles south of Malta," Jacobs said. "We are fourth generation, and proud to be a part of a 102-year family business."

Jacobs said her family ranch borders APR land and her comments focused on the cattle disease brucellosis (an infectious disease that occurs from contact with animals carrying Brucella bacteria.)

"The APR's disease testing shows they have brucellosis-positive bison in their herd and have shipped positive cases," Jacobs said. Jacobs cited a report from the U.S. Animal-Plant Health Inspection Service (APHIS) which she said states, "This disease is commonly transmitted to susceptible animals by direct contact with infected animals or with an environment that has been contaminated with the discharges from the infected animals."

Jacobs said another APHIS document on the topic of the health of bison in the greater Yellowstone area states "Even though transmission in the wild is difficult to document, results of epidemiological

investigations point to domestic bison as the likely source of the disease in infected cattle herds found in Wyoming and North Dakota. In addition, wild elk or bison in the (greater Yellowstone area) have been identified as the most probable source of infection for five additional cattle

herds. Infected elk were the most probable source of brucellosis infection (fistulous

withers) in horses in Wyoming. Most recently, elk were the source of infection of a cattle

herd in Idaho."

"The fact that the brucellosis pathogen can remain in the soil for a period of time definitely makes disease management an issue that the Phillips Conservation District should properly regulate and manage through whatever means are necessary," she said.


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