What is enclosed below are the comments concerning the National Bison Range (NBR) over the inclusion of the NBR in Senate Bill 3019. The following comments were sent on behalf of GWA to the Senate Committee of Indian Affairs on July 4, 2020.
July 4, 2020
Senate Indian Affairs Committee
Subject: Montana Water Rights Protection Act S. 3019
Dear Committee Members,
The Gallatin Wildlife Association (GWA) has been following the actions and proposed threats to the National Bison Range (NBR) for several years now. We were shocked and dismayed to learn of the attempts by the Montana Congressional Delegation, specifically those by Senators Daines and Tester, to secretly propose a land transfer of public lands managed by the U.S. Fish and Wildlife Service over to the Confederated Salish and Kootenai Tribes (CSKT) of Montana. All of this done without approval, permission or widespread knowledge of the people of Montana, let alone the country. We use the word “secret” because other than perhaps one meeting in Missoula, there have been no hearings, no presentations, no announcements before the public. Not even staff people of Sen. Daines’ office in Bozeman, MT knew of this issue when GWA visited with them. This in and of itself sets bad precedent.
GWA would like to comment further on this proposal. We should first define who we are. We are a local, all volunteer wildlife conservation organization which is dedicated to the preservation of wildlife and wildlife habitat in Southwest Montana. We are a nonprofit 501(c)(3) organization which has been in existence since 1976 representing hunters, anglers, and other wildlife advocates with the mission to protect habitat and conserve fish and wildlife populations on a sustainable basis for our children and future generations. This issue very much becomes our issue by its potential repercussions on native wildlife, but also on the future of public lands. We want to make clear; we are only commenting on the inclusion of the NBR in Senate Bill 3019.
S. 3019 is a water-rights compact issue, a state issue. Section 2 of the bill lists the four purposes of the Act as follows:
1. to achieve a fair, equitable, and final settlement of claims to water rights in the State of Montana, and in recognition of article I, and section 3 of article IX, of the Montana State Constitution for—
(A) the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation; and
(B) the United States, for the benefit of the Tribes and allottees;
2. to authorize, ratify, and confirm the water rights compact entered into by the Tribes and the State, to the extent that the Compact is consistent with this Act;
3. to authorize and direct the Secretary of the Interior—
(A) to execute the Compact; and
(B) to take any other action necessary to carry out the Compact in accordance with this Act;
4. to authorize funds necessary for the implementation of—
(A) the Compact; and
(B) this Act.
As the committee can see, nowhere in the designated design purpose is there a statement about a resolution of the NBR. Nowhere does the purpose deal with wildlife, bison, or public lands. The only reason the NBR is even part of this legislation is to help provide payment to the CSKT. The only purpose in mentioning the NBR is to explain what the NBR is in that function for payment; payment by the way which was not done in accordance with the approval of the citizens of Montana, the country or done in conjunction with conducting a National Environmental Policy Act (NEPA) analysis, which is law. The people of the United States should have a say in such a land reallocation. It is the 10th most popular visited park within the National Wildlife Refuge System. Not only does it set bad precedent to try and hide public land transfers fro the public, but it is also setting bad precedent to take land or funds from the federal trust to pay a state's debt. What is the legality of such action? The people of Montana are being represented very poorly in this action by Senator Daines, the sponsor of this bill.
There are other problems and/or questions GWA has with the legalities or processes of this legislation. Under Standing Rules of the Senate, Rule XXV, 1(h)(1), there is this statement:
"Committee on Environmental and Public Works, to which committee shall be referred all proposed legislation, messages, petitions, memorials, and other matters relating to the following subjects..."
Of those numerious subjects listed, several apply, stating that this legislation shoud be considered by this particular committee. Those which apply, but which are not limited to, are: "Environmental policy, Environmental research and development, Fisheries and wildlife, and Public buildings and improved grounds of the United States generally, including Federal buildings in the District of Columbia."
Why has this legislation not been introduced into this committee, one where it is mandated?
On another front, GWA questions whether or not the U.S. Fish and Wildlife Service (USFWS) has been adhering to the original intent of the National Wildlife Refuge System Administration Act (NWRSAA) of 1966 or the National Wildlife Refuge System Improvement Act of 1997. That may get us int a broader issue other than to say perhaps that problem gave rise and justification for Senators and the CSKT to push the idea of this land transfer. If the USFWS had managed the NBR in recent years in the way they're mandated to do so, perhaps the NBR would not have been included in this bill.
There's recent history over the fact the NBR has had a mismanagement problem, and that raises a serious question. If the NBR is not getting the necessary oversight, protection and fulfillment of the NWRS mission, how are they going to get those assurances within the CSKT? Meaning no disrespect to the CSKT, but they are a tribal entity with a different purpose and existence. They are an entity which does not provide or posses those national protections, an entity outside the jurisdiction of the American people and its government, and an entity where there are no guarantees of fulfilling that national mission. How are they going to improve the condition?
On to the NBR and its specifics. The NBR contains 18,800 acres of federal public land, land that was designated to be set aside as a refuge for bison in 1908 by President Theodore Roosevelt. This is a public trust which has had an iconic presence within the National Wildlife Refuge System for 112 years with a specific mission to protect our most recent National Mammal from extinction. That mission still holds true today in spite of the fact there are plenty of bison herds across the country, privately and federally owned on tracts of private and public land. It is sad to think that some feel the NBR is a victim of its own success, but it is not. What is being ignored is the fight for the enduring protection of the purity of bison genetics. Through those 112 years, the USFWS has done a remarkable job in preserving bison alleles, the genetics which have their founding before the private herds of Allard, and the selling of that herd to the Conrads in 1901-02. It is that stock which was used in the original founding herd of the NBR. The purity of those alleles is intact. In quoting DOI Bison Report, “Looking Forward”, Natural Resource Report NPS/NRSS/BRMD/NRR—2014/821, it states this on page 38:
"Recent science has established that the Yellowstone and NBR herds are closely related and both have high genetic diversity (Dratch and Gogan 2010). Like Yellowstone, NBR bison represent one of the four primary genetic lineages of extant conservation herds."
There has been 112 years of investment by the American people and their tax dollars into the preservation and management of the NBR. The American people have a right to know the purpose for the potential loss at stake. The federal mission has not changed. The only thing that has changed is the willingness of specific interests and tribal groups to use the NBR as an easy way out of correcting some wrongful deeds by state and federal governments. Speaking of which, there needs to be a historical consensus and agreement as to what occurred at the turn of the 20th century. By not correcting the NBR historical record as stated in this legislation, it further stains the justification and premise of this Act. It is a sad state of affairs when a federal piece of legislation could become law when based upon such a controversial recollection of history. There should be an effort to get this right before the American people.
Finally, to conclude on the premise in which we started, we feel this legislation is dangerously precedent setting in one other way. Contrary to what is stated in Sec. 13. of S. 3019 entitled National Bison Range Restoration, line item (k) (No Precedent), GWA believes we cannot depend upon the provided denial that these provisions are not precedent setting. There are no guarantees, even in law. As we have stated in prior public comments, there are 68 National Parks and 34 National Wildlife Refuges listed in policy under Section 403(c) of the Tribal Self-Governance Act of 1994. Who’s to say those lands can’t or won’t be subject to the same threat. As we have learned, laws can be over turned or amended. Just because it’s stated in Sec. 13 of this legislation, doesn’t make it so. There is a steep irony here. S3019 opens that door wide, launching a precedent setting change, robbing Americans of their public land. The CSKT and other First Nation people are well aware of that feeling.
GWA also wants to clarify that we are not against reparations to Native American Indigenous tribes. We believe there are many justifications for such action, but reparations can come in many forms. If the purpose of this action is for reparations, then we should have that discussion, but this is not the forum that it should take place. GWA’s sole purpose is to protect America’s wildlife and their respective habitat. We are against taking lands out of the public domain and the federal trust for that purpose unless there are lands of equal or greater value that can restore those lost acreages and protect our natural heritage. With that in mind, GWA urges the Senate Committee on Indian Affairs to remove the inclusion of the National Bison Range from S.3019.
We want to thank you for receiving our comments and for any thoughtful consideration you can provide pertaining to this issue. The American people have a right to know how their government is working or not on their behalf.