The opening line from the classic 19th-century American folk song “Home on the Range” hints at the historical range of the American bison (Bison bison) across a vast portion of central and western North America - from Canada’s Alberta prairies through the Great Plains and into northern Mexico.
“… But Not On My Property.”
Today, this new opening line could be inserted into the early 1870s song, written and composed by Brewster M. Higley and Daniel E. Kelley. It signifies the deeper legal, ecological, and political conflicts at the intersection of wildlife law and private-property expectations.
Bison in the U.S. no longer roam freely where the deer and the antelope play. Wild and conservation herds are restricted to places such as Yellowstone National Park (Wyoming/Montana/Idaho), Tallgrass Prairie Preserve (Oklahoma), the Badlands and Wind Cave National Parks (South Dakota), and American Prairie (Montana).
And, for some, all too seldom are heard encouraging words about the bison. In mid-November 2025, Neighbors Against Bison Slaughter (NABS) asked a Montana federal district court to reopen its 2019 case and issue an order compelling the National Park Service, Forest Service, Secretaries of the Interior and Agriculture, and superintendent of Yellowstone National Park to complete a supplemental environmental impact statement (EIS) within one year that responds to 72 changed circumstances and information relevant to management of Yellowstone’s bison herd.
So, Where Can The Bison Roam?
The debate over bison on private property centers on a long-standing tension among wildlife law, property rights, tribal sovereignty, and public safety in states where bison roam near private lands (e.g., Montana, Wyoming, and South Dakota) and where Native American tribes manage large herds that occasionally move across boundaries.
In the NABS brief in support of their partial motion to reopen and a second brief for summary judgment (Case 1:19-cv-00128-SPW; filed 11/14/25), NABS asserts the federal government has failed its responsibility to manage Yellowstone wild bison under the National Environmental Policy Act of 1969 (NEPA), by allowing the state of Montana to stop Yellowstone wild bison from expanding on open and unclaimed lands, where they would thrive, increase their numbers, and provide more food and treaty hunting opportunities for several Tribes. Montana’s Department of Livestock opposes allowing bison to roam freely beyond designated tolerance zones like other wildlife in the state because of concerns that bison carry brucellosis, a disease that can cause pregnant cattle to abort.
Failing to complete the EIS, NABS asserts the Forest Service and defendants are not treating America’s National Mammal with the respect it deserves or ensuring that Americans will enjoy Yellowstone wild bison on public lands in the future.
What Are Fences For?
Landowners own the forage grasses, crops, and fences on their property, but not the wild bison that enter their land, since wildlife is held in trust by the state or tribe. Several states have programs for elk, deer, or predator damage, but bison compensation is inconsistent, creating legal ambiguity. This mismatch—private costs associated with a public resource—drives many landowner complaints about property damage, competition with cattle for forage, and possibly even disease concerns (e.g., fears of brucellosis transmission in the Greater Yellowstone region).
Landowners generally feel that if the state (or a tribe) manages the herd, then the government should compensate for damage to fences, crops, hay, water systems, or loss of grazing capacity. Some argue a “takings” theory; i.e., the persistent presence of public-trust wildlife causing economic loss amounts to a regulatory taking. The opposing position to large western landowners is that wildlife movement is natural, and the state or federal government or a Tribe is not liable unless a statute authorizes compensation.
The courts have repeatedly rejected takings arguments, citing Mountain States Legal Foundation v. Hodel (668 F. Supp. 1466; D. Wyo. 1987) and similar cases holding that the presence of wild animals does not create government liability absent a specific statutory compensation program. Court rulings repeatedly show that wildlife on private land does not constitute a Fifth Amendment taking. Wildlife impacts are not compensable unless a statute requires it. Federal land decisions that authorize bison grazing do not create liability for neighboring landowners.
The traditional Western rule is that livestock owners must fence in their own animals. Wildlife are free to roam; thus, private landowners fence wildlife out if needed. For bison, however, this rule falls apart because bison are powerful animals and can breach or jump standard livestock fences. High, reinforced “bison-proof” fencing is expensive, and if state or tribal bison routinely break fences, landowners argue that the burden is unfairly shifted onto them. This has prompted some states to consider statutes requiring compensation for fencing damage or cost-sharing for wildlife-resistant fencing.
Disease and interaction with cattle
The Yellowstone controversy is about much more than fencing costs. Some claim bison can carry brucellosis, a disease that ranchers fear could infect cattle (with economic consequences). But wildlife biologists argue that recent brucellosis research indicates that elk—not bison—are the primary source of transmission risk to cattle in the Greater Yellowstone Ecosystem, with documented elk-to-cattle transmission events far exceeding any confirmed bison-to-cattle cases. The scientific debate has fueled arguments about the Montana Department of Livestock’s authority under Mont. Code Ann. § 81-2-120 and Interagency Bison Management Plan to haze, capture, or lethally remove bison leaving federal lands, and whether state policies discriminate against wildlife to favor private cattle ranching. Disease regulations, especially those concerning brucellosis, disproportionately target bison despite scientific evidence indicating that elk are the primary reservoir for this disease.
Tribal sovereignty vs. state property rights
Several tribal nations - Fort Peck Assiniboine & Sioux, Blackfeet, Cheyenne River Sioux tribes, and others and the InterTribal Buffalo Council manage large conservation herds. Legal issues arise when tribally managed bison wander onto private, non-tribal land, or when state laws conflict with tribal rights to restore bison under treaty-protected hunting or land-use rights. Tribes argue their herds are sovereign tribal resources and states cannot interfere with tribal wildlife management except under limited circumstances. States and private landowners, on the other hand, have argued that escaped bison pose economic or disease risks. This overlap of jurisdictions is a major ongoing dispute in Montana and the Dakotas.
Not all Wildlife are Equal Under the Law
Similar to the current controversy over the federal government’s plan to cull Western Barred Owls to manage Northern Spotted Owls in the Pacific Northwest, the management of bison in the Great Plains is fraught with ethical dilemmas. Who bears the cost and responsibility for a large, native, landscape-shaping animal that is naturally attracted to its former range? Must private landowners tolerate bison movement onto their lands? Should wild bison be granted special conservation status? Are bison “native wildlife,” “livestock,” or “game animals” legally?
Bison are unusual among large mammals in North America because their legal status varies widely by jurisdiction; sometimes classified as wildlife, and sometimes as privately owned livestock. Legally, as with most native wildlife, wild bison fall under state management as public-trust wildlife, except where a herd occurs on federal lands or federal statutes confer management authority, such as the Yellowstone National Park herd (although the herd is subject to state jurisdiction when the bison cross into Montana). Tribal jurisdictions add another layer of overlapping and, sometimes, conflicting authority.
Grizzly bears and wolves receive federal ESA protections; elk are managed as public trust wildlife with compensation programs. Bison, however, lack ESA protection, and unlike wolves, grizzlies, or elk, they have no consistent federal or state compensation mechanisms. Their classification varies widely among states, contributing to regulatory uncertainty.
A more functional governance regime for bison would require a clarified classification as wildlife; coordinated co-management across federal, state, and tribal jurisdictions; compensation or cost-sharing programs for landowners; risk-based disease management; and formal recognition of tribal treaty rights. A newer argument—supported by some conservationists and tribes—is that bison should be recognized as a public trust resource, similar to rivers, public timber, and public livestock grazing lands. This would strengthen the case for federal and state responsibility to manage bison sustainably, share responsibility for land-use conflicts, and develop compensation and coexistence programs that respect ranching and landowner concerns.
Resolving The Plight Of Wild Bison
Well, open land in the U.S. is shrinking, not expanding. The conflict between sustainable wildlife management and land use is inevitable. Bison, elk, wolves, and grizzly bears share that fate. But while elk, wolves, and grizzly bears have clear legal status, bison continue to lack consistent legal treatment across jurisdictions. This ambiguity fuels unique litigation, political conflict, and management and habitat fragmentation. Resolving the plight of wild bison will require statutory clarity, a new, coordinated approach to governance, and a commitment to balancing private property interests with the ecological and cultural preservation of an iconic North American species.
