What is a Wild Bison? The Legal Definition


For Montana bison, there are two definitions of wildness: a legal definition and a biological definition. Only the former is considered here. The biological definition is discussed in a separate communication.

In the Montana Code, Chapter 81, “wild bison” means a bison that has not been reduced to captivity and is not owned by a person. In Chapter 87, “wild buffalo” are a “game animal”; and wild buffalo are bison that have not been reduced to captivity.

Clearly, wild bison are a publicly-owned game species, therefore a public trust resource.

But the issue of captivity is more ambiguous. The form and degree of captivity has not been defined in Montana law. Elsewhere in the Code at 87-1-216, the prescription for wild bison management refers to “containment”. But again, “contained” is not well defined and provides little help in defining “captivity”.

Clearly, bison confined to a small pasture are captive and contained and therefore not wild. Moreover, ethical issues associated with hunting animals in a pen suggest that such bison are not “game”. But how large must a containment area be for bison to be declared free-ranging and at least somewhat difficult to hunt – and therefore “wild game”?

The form of containment is also an issue. Fences are not the only option. Natural barriers that bison are unlikely to cross may contribute to containment. On the CMR National Wildlife Refuge, Fort Peck Reservoir is a potential barrier, at least when unfrozen. Probability that bison would attempt crossing an icy Fort Peck Reservoir remains unknown. Steep terrain and dense forests might also serve as barriers, to a degree that can only be tested with bison on the ground. (Similarly, livestock are often contained by drift fences that end in habitat where cattle are unlikely to go to circumnavigate the fence.)

What if bison are constrained in a large area by a combination of fences and natural barriers, but make very infrequent excursions, only to always be hazed back to the center of their designated range? Are they still legally contained? or captive? Are they legally wild?

Captivity may also be manifested by frequent handling of the animals, perhaps with selective culling, vaccinations, and other imposing activities. Selective culling might be used to alter and control the sex-age composition of a bison herd and to eliminate natural fluctuations in abundance. Winter feeding and artificial watering could also contribute to “captivity”.

Under existing law, a generous but still imprecise interpretation of the captivity standard for wild bison might be that wild bison must range freely, year-round, over a very large area and must endure very little or no artificially intrusive management.

Legal Categories of Bison in Montana

Legally, Montana law recognizes 5 categories of bison in the state.

  1. Several thousand private livestock, governed largely under the Montana Code, Chapter 81 by the Department of Livestock. Almost all these animals are being domesticated with each generation. The significant exception are bison on the American Prairie Reserve in northcentral Montana, where bison roam over a large and growing available landscape, and handling of the animals is minimized. (But APR’s bison are still, legally, livestock managed under Chapter 81.
  2. About 350 bison on the National Bison Range are “display animals” in an exhibition pen, as defined in 87-1-711 and 712. They are managed by the U. S. Fish & Wildlife Service.
  3. Wild public bison seasonally visit Montana from Yellowstone National Park. They are recognized uniquely in Montana law under 81-2-120, requiring that they be intensively controlled as diseased animals. Each year, several hundred are harvested by Native American and public hunters or captured and sent to slaughter. Public hunts are managed by Montana Fish, Wildlife & Parks under Department of Livestock oversight.
  4. Bison on reservations in both commercial and cultural herds belong to Montana Native American tribes, where management is controlled by each tribe.
  5. Wild public bison not exposed to or infected with a dangerous or contagious disease are recognized in Chapter 87 of the Montana Code. Currently, there are no such bison in Montana. However this legal designation allows for restoring wild bison and offers the opportunity for melding the legal and biological definitions of wildness.

 

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