and No More: Excluded from Federal Grazing Lands, for Now

Guest Opinion

Ranchers have long opposed the grazing of bison alongside cattle on federal grazing lands—public lands leased to ranchers. They fear the spread of disease, while their primary objective is maximizing profits from their cattle operations. These competing interests have put bison at risk, and in May, the ranchers got what they had been asking for.

The Bureau of Land Management (BLM) denied a lease for seven allotments of federal grazing land for bison on May 8, 2026. The American Prairie Association has since requested a stay of that decision from the Department of the Interior Board of Appeals.

At the center of the dispute are cattle ranchers who fear that bison could infect cattle herds with brucellosis, a disease that affects both species. Efforts to test bison for the disease have caused so much stress that many animals have died, leading to the adoption of testing representative animals from breeding herds instead.

The perceived risk of disease has also been used to justify the needless killing of bison, as have hunting practices in which sportsmen shoot bison grazing in open fields. The National Forest Service has long permitted cattle ranchers to graze livestock on lands surrounding Yellowstone during the summer by trucking cattle into the area, while bison occupying those same lands are often slaughtered. The agency has repeatedly been petitioned to reconsider this policy but has persisted in maintaining it.

Native Nations with traditions of bison hunting also harvest bison pursuant to their treaty rights. However, during years of poor herd survival, such as the past several years, some argue that hunting may need to be limited primarily to ceremonial purposes.

The bison is the ultimate survivor. It should have gone extinct during the Pleistocene Era, when many other large mammals succumbed to environmental change and the arrival of Homo sapiens armed with spears. Instead, it endured. The modern species, Bison bison, replaced its larger and slower ancestors, Bison priscus and Bison antiquus.

Part of the species’ resilience may stem from its ability to interbreed with cattle through introgressive hybridization. Researchers examining three of the seven major North American bison lineages found that none were genetically pure and all contained some cattle DNA.

Today, approximately 30,000 bison roam free in the wild, while roughly 470,000 are raised commercially. Preserving wild bison is essential because they continue to evolve naturally within their native ecosystems. Yellowstone National Park remains home to one of the key wild populations that has become the focus of recent regulatory actions.

This regulatory distinction appears to have led the Department of the Interior to exclude only wild bison from federal grazing lands on the grounds that they do not meet the definition of “livestock production.” In comments provided to a news outlet, the Department defended its interpretation of the Taylor Grazing Act:

“While we do not comment on pending litigation, the Bureau of Land Management’s decision was firmly grounded in federal law and a thorough review of the administrative record. The agency determined that American Prairie’s bison operation does not satisfy the statutory requirements for a federal grazing permit under the Taylor Grazing Act because the herd is managed primarily for conservation purposes rather than livestock production.”

The Yellowstone Bison Herds

Yellowstone National Park contains two distinct population segments of bison, representing two subspecies: the Plains bison (Bison bison bison) and the Wood bison (Bison bison athabascae). Both experienced devastating losses this year, the worst since 2008.

On Dec. 22, 2022, 13 bison were killed just outside Yellowstone National Park after being struck by a freight truck, with additional injured animals requiring euthanasia. Food shortages had driven the herd outside the park into areas where they became vulnerable to vehicle collisions and legal hunting.

Although advocacy organizations successfully expanded the protected range beyond Yellowstone’s boundaries, those protections have not proven sufficient. Petitions submitted by nonprofit groups prompted the Department of the Interior to undertake a status review to determine whether the Plains bison should receive protection under the Endangered Species Act.

The Department has recommended that the species receive protection, but whether it should be classified as “threatened” or “endangered” remains unresolved.

The Yellowstone herds represent the last truly wild bison populations, giving the Department of the Interior an opportunity to designate them appropriately as endangered. Instead, it has chosen to pursue a policy excluding wild bison from federal grazing lands they have historically occupied, placing additional pressure on their long-term survival.

Co-Management of Wild Bison on Federal Lands

Co-management of all distinct bison herds with Native Nations is long overdue. Yellowstone National Park should be consulting with Tribes that maintain bison traditions in accordance with President Biden’s Executive Order of Jan. 21, 2021, and the consultation protocols developed under that guidance.

Some practical solutions are already underway. Commercial bison ranching has helped ensure the continuation of many herds by creating an economic incentive for their preservation. Today, consumers can purchase ground bison in most grocery store chains.

A similar model helped preserve elk populations by establishing a commercial market for elk meat.

As domesticated livestock, both bison and elk are regulated by the U.S. Department of Agriculture. Meat inspection is voluntary unless the meat enters commercial markets, in which case it must be inspected under the Federal Meat Inspection Act as an exotic, or “non-amenable,” species. Depending on whether they are wild or domesticated, bison may fall under the jurisdiction of the U.S. Fish and Wildlife Service, the USDA, or the Food and Drug Administration.

Wild elk and bison are managed as wildlife by the U.S. Fish and Wildlife Service or corresponding state agencies. The Fish and Wildlife Service also administers surplus distribution programs through which bison may be transferred to Tribes and intertribal organizations under several statutory authorities, including the Religious Freedom Restoration Act.

Wild bison therefore can—and often do—become part of livestock production or food systems through government management programs and regulated hunting activities.

Final Thoughts

The Bureau of Land Management’s decision is currently being appealed within the Department of the Interior. Before seeking judicial review in federal court, the parties must exhaust all available administrative remedies under established legal doctrines governing ripeness and exhaustion.

If the Department’s Board of Appeals upholds the agency’s action, the dispute may proceed to federal district court.

Once there, the Department of the Interior’s action could well be challenged as an agency rulemaking. A rule generally encompasses government actions with future effect and is interpreted broadly under administrative law.

Under the Administrative Procedure Act, rulemaking ordinarily requires public notice and a comment period of at least 60 days, during which the agency must consider the comments it receives. Although the agency is not obligated to adopt those comments, it must comply with these procedural requirements before imposing a rule that affects regulated parties.

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.

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