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New Bison Range-Tribal Pact Vulnerable to Legal Challenge

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New Bison Range-Tribal Pact Vulnerable to Legal Challenge

Latest Version Does Not Cure Earlier Violations While New Creating Ones

Washington, DC — The new court-ordered environmental review of the latest plan to turn operations of Montana’s National Bison Range over to a local tribe improperly ignores the problems that led to the cancellations of two preceding agreements, according to comments filed today by Public Employees for Environmental Responsibility (PEER). Unless the U.S. Fish & Wildlife Service (FWS) conducts a full Environmental Impact Statement, the proposed funding agreement with the Confederated Salish and Kootenai Tribes (CSKT) may be struck down in federal court on similar grounds as it was back in 2010.

Tomorrow is the deadline for public comments on the Service’s Draft Environmental Analysis (DEA) for a new five-year Annual Funding Agreement (AFA) to transfer most Bison Range jobs and functions to the CSKT. The document is the product of more than four years of closed door negotiations between FWS and the Tribes. Apparently as a result, virtually all of the performance issues that led FWS to summarily cancel the first agreement back in 2006 ended up on the cutting room floor.

“The Fish & Wildlife Service does not seem to understand that the reason the court rescinded the second agreement was that the problems plaguing the first one need to be analyzed,” stated PEER Senior Counsel Paula Dinerstein, who filed the earlier lawsuit on behalf of four former Bison Range refuge managers whose tenures span 40 years, a former Chief of the National Wildlife Refuge System and Nathaniel Reed, former Assistant Interior Secretary under both Nixon and Ford. “In this DEA, the Service has just gone through the motions, wasting a whole lot of paper while avoiding the real issues.”

PEER comments also point to a number of practical weaknesses that hampered operations on National Bison Range, a more than century-old preserve called the Crown Jewel of the National Wildlife Refuge System, under previous agreements including –

  • A paralyzing dispute-resolution mechanism between the Service and the Tribes;
  • Absence of meaningful public oversight, such as suspension of the Freedom of Information Act or independent review of complaints from the public; 
  • Financial incentives in the AFA for the Tribes to cut back services or force the resignation of holdover federal staff; and
  • The difficulty of recruiting qualified staff for jobs limited to five years at most, with the possibility of earlier AFA rescission, as happened with the last two agreements.

While the successful PEER lawsuit was decided on the lack of required environmental impact review, a number of other statutory challenges it raised were left undecided but apply to this new pact as well. Most fundamentally, PEER charged that the AFA violates the National Wildlife Refuge System Administration Act because it turns refuge administration over to an outside entity. The new agreement tries to paper over the issue by on one hand declaring the management decisions will remain with the Service but on the other allows the CSKT to integrate management of refuge lands into tribal systems.

“This agreement futilely and illegally tries to make one refuge serve two masters,” added Dinerstein, noting that PEER supported alternatives rejected by the DEA and has supported the only other AFA at Alaska’s Yukon Flats National Wildlife Refuge. “Tellingly, this lengthy environmental assessment never discusses the most important environmental issue – what will improve National Bison Range and benefit its wildlife.”

PEER’s comments also point out the financial terms for the AFA have yet to be disclosed.

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 Read the PEER comments

View Draft Environmental Assessment (DEA) 

See concerns from Bison Range staff censored from DEA

Look at FWS reasons for 2006 cancellation

Revisit the lawsuit