The Montana Supreme Court’s 2018 ruling in a conservation easement case that pitted Gov. Steve Bullock against Attorney General Tim Fox came down to the definition of the word “acquire.”
A 6-1 majority of the court says the plain meaning of the word indicates the Legislature did not intend to require approval from the Montana State Board of Land Commissioners for state conservation easements.
The court issued its opinion Thursday in Bullock’s case against Fox. The ruling overturned an attorney general’s opinion Fox issued last year, which found that Montana Fish, Wildlife & Parks conservation easements do require Land Board approval, in a case stemming from a dispute between Bullock and the board. While the court issued its order last December, Thursday’s opinion states the full legal rationale backing the decision.
The case began with the Horse Creek Conservation easement near Wibaux last year. The $6.1 million easement, which provides public access while curbing development, was agreed to by the Stenson family and FWP and approved by the Montana Fish and Wildlife Commission.
When FWP brought the easement to the Land Board, Republicans state Auditor Matt Rosendale, Superintendent of Public Instruction Elsie Arntzen and Secretary of State Corey Stapleton voted to delay action. Bullock, a Democrat, and Fox, a Republican, voted against the delay, asserting that concerns from the others about the easement’s impacts on mineral development were irrelevant.
Following the delay, Bullock used a narrow reading of the law to conclude that Land Board approval was needed only for land purchases. “Interests” in land, and specifically easements, require only commission approval, he decided, and ordered FWP to finalize the easement.
Bullock’s action was applauded by several hunting and access groups supportive of the Habitat Montana program. The program, which partially funded Horse Creek, takes a portion of hunting license sales and uses them to purchase public access, whether by land purchases or through easements.
The use of Habitat Montana has been debated in recent years due to some land purchases that did not enjoy local support, and Republicans in the Legislature have pushed for tighter restrictions on its spending. The circumvention of the Land Board also brought criticism from Republicans on the board.
Senate President Scott Sales then asked Fox to provide a legal review to analyze Bullock’s actions. Last October, Fox’s attorney general opinion disagreed with Bullock, finding that Land Board approval was needed for easements. In an interview, Fox accused Bullock of “unilaterally ignoring” the law when he circumvented the board.
Bullock and FWP Director Martha Williams took their case to the Montana Supreme Court in December for a final legal determination of Land Board authority. There, they argued that the plain language of the law states that “land acquisitions” does not apply to easements because no land is physically possessed by the state. The attorney general’s office countered that legislative intent included the broader scope of acquiring an interest in land.
On Dec. 11, the court ruled for Bullock 6-1 in part to allow three time-sensitive easements to be completed. The full legal opinion was authored by Chief Justice Mike McGrath.
The opinion spends considerable time analyzing and concluding that Bullock and Williams had legal standing to bring the case. Fox’s office had argued in part that they did not have standing because they did not directly suffer harm as individuals. But the court found that the attorney general’s opinion, in forcing them to bring easements to the Land Board, hindered their ability to execute their official duties.
“The Legislature did not define the term ‘land acquisition.’ Thus, this court considers ‘land acquisition’ to have its plain and ordinary meaning — gaining actual possession over land — consistent with the term’s usage throughout the Montana Code,” the opinion says.
The opinion goes on to point to other instances in code where the term “interest in land,” which would include easements, is used to specify the scope of authority.
Bullock issued a statement in response to Thursday’s opinion.
“I’m pleased the court concurred with our legal review and am especially pleased that the special places at the heart of this case — and the ranch families who call those places home — are protected under the law,” he wrote. “Habitat Montana remains one of the most successful programs in our state, helping to safeguard our wildlife and keep working ranch lands in family hands, all while promoting hundreds of thousands of acres of access to the public for hunting and fishing.”
Fox spokesman John Barnes said the Department of Justice was still reviewing the opinion Thursday and had no comment.
Justice Laurie McKinnon dissented on the opinion, writing that she believes the term “land acquisition” was intended to be intentionally general to include all types of acquisitions, including easements. She found little sense in the idea that the Legislature would intend Land Board approval for a purchase of $100,000 or 100 acres, but not provide the same oversight for a $6.1 million easement.
Rep. Kerry White, R-Bozeman brought a bill this session to place FWP easements under the Land Board authority. That bill passed the Montana House on Feb. 18 and has a hearing in the Senate scheduled for March 14.