A bill seeking to overturn a recent Montana Supreme Court decision about easements will add transparency and accountability, supporters argued Tuesday. Opponents countered that it creates needless bureaucracy and muddles what should be a clear process.
Rep. Kerry White, R-Bozeman, brought House Bill 265 before the House Fish, Wildlife and Parks Committee. The bill would overturn a recent Supreme Court decision that ruled state conservation easements do not require approval of the Montana State Board of Land Commissioners.
The Supreme Court ruled 6-1 after Democratic Gov. Steve Bullock challenged an attorney general’s opinion from Attorney General Tim Fox, a Republican. Fox’s opinion, in response to a request from Senate President Scott Sales, R-Bozeman, found that state conservation easements do require Land Board approval.
“I believe as legislators that we should clarify conflicting (legal) opinions,” White told the committee.
The case stems from a lengthy battle over the Horse Creek Conservation Easement near Wibaux. The easement saw unanimous approval from the governor-appointed and senate-confirmed Montana Fish and Wildlife Commission, but stalled before the Land Board after owners of the mineral rights brought forward concerns.
Although contracting the surface rights could have no legal impact on mineral rights, Secretary of State Corey Stapleton, Superintendent of Public Instruction Elsie Arntzen and state Auditor Matt Rosendale voted to delay action. Bullock and Fox voted to oppose the delay.
Bullock then circumvented the board and finalized the easement. He used a narrow reading of state law that found state land purchases require Land Board approval while easements only require Fish and Wildlife Commission approval. Fox’s opinion found that action unlawful while the Supreme Court overturned the opinion, agreeing with Bullock.
The Horse Creek Easement, which allows public access, a grazing plan and limits development, came with a price tag of about $6.5 million. Questions about the value of the easement came into play as well for Rosendale and Arntzen, while Stapleton voiced his opposition to perpetual land management decisions.
Stapleton’s record on easements came up several times during the hearing Tuesday, including a newsletter he published last year that said the Land Board was “dinking around” with easements and other decisions rather than working on expanding natural resource development.
“I’ve always thought it’s really poor public policy to do something forever,” Stapleton said at last February’s Land Board meeting while posing a question about tax implications and perpetual easements. “I think it’s generationally selfish and also foolish to go beyond say 99 years.”
William Selph, Stapleton’s Land Board advisor, challenged the idea that Stapleton would not support perpetual easements Tuesday.
“In contrary to some of the things stated here today, that he does not support conservation easements, he has been willing to support them even with perpetuity but they do need to meet a higher standard,” Selph said.
Selph was joined by lobbyists for the groups Citizens for Balanced Use and United Property owners of Montana in support of the bill. White is founding member and longtime leader at CBU.
“This bill can be summed up with one thing: transparency,” said Chuck Denowh, representing the property owners. He continued, saying the Land Board provides additional scrutiny to large expenditures of money and having those decisions made by a governor-appointed board “invites corruption.”
HB 265 saw opposition from several conservation groups, including the Montana Wildlife Federation, Back Country Hunters and Anglers and Montana Audubon, the Montana Association of Land Trusts and three members of the Stenson family -- owners of the Horse Creek Easement. The Stenson’s offered scathing testimony about their experience before the Land Board that they believe flew counter to support for private property rights and nearly cost them their ranch.
“My experience has been far different than what the proponents have described,” Adele Stenson told the committee. “Our long and ugly journey with the Land Board began in this building almost a year ago and we vowed we would do whatever we could to save any other landowner from enduring that arbitrary and potentially devastating process.”
The Land Board has no clear guidelines to consider easements and the delays came despite spending two years fulfilling legal requirements for tapping state funds, she said.
The bulk of funding came through Habitat Montana, an account generated from a portion of hunting and fishing license sales, along with federal funding. Habitat Montana has seen debate in recent years due to FWP land purchases that did not enjoy local support, but easements had largely been uncontroversial before Horse Creek.
“This clearly sends the message that a landowner who has the audacity to work with Fish, Wildlife and Parks on a program prescribed in your state law -- fulfilling every program requirement as we did -- risks losing time, money and quite possibly the very land they’re fighting for on the whims of a board that has no guidelines in their decision-making and no true accountability,” Stenson said.
FWP Director Martha Williams testified that the current easement approval process includes several layers of public comment before it goes before the commission. As opposed to most easements through private organizations, FWP easements serve an important niche for landowners that need cash rather than tax benefits and the agency is able to leverage dollars from several funding sources.
“The process is rigorous, robust and costly,” Williams said.
White said he “feels for the (Stenson) family” but believes the process could be equally as arbitrary only going through the Fish and Wildlife Commission. As elected rather than appointed officials, the Land Board offers direct accountability to voters, he said.
The committee took no immediate action on HB 265.