Private property rights came to the forefront of Thursday’s Montana Fish and Wildlife Commission meeting during a contentious debate over a proposed eastern Montana conservation easement.
Wibaux-area ranchers Adele and Kip Stenson negotiated with Montana Fish, Wildlife and Parks for about a year and a half about placing their property into a conservation easement. The proposed $6.1 million easement, funded by both federal and state dollars, would keep about 15,000 acres in agriculture and wildlife habitat. In exchange, the Stensons agree to certain management provisions for maintaining habitat and public access while limiting development.
“This easement allows us the opportunity to secure the future of our ranch, for ourselves, for our kids for my 80-year-old parents that are on the ranch with us,” Adele Stenson told the commission.
While the Stensons own surface rights to their ranch they do not own the mineral rights, which are owned by Hodges Ranch LP. That split has become a major source of contention over the easement, as the mineral owners raised concerns that a conservation easement will hinder future oil and gas development.
But language of the easement and the law protects the right to develop minerals, FWP wildlife administrator Ken MacDonald testified, and the Stensons said they respect those rights.
“It is the mineral owner that has the dominant right, and we have no desire to step on that and no desire to stop them from doing that if that was an opportunity at some point,” Adele Stenson said. “My concern is a vote against this easement in favor of that is actually stepping on our private property rights. We have the right to sell our surface rights to whoever we want to, and to give the mineral owners a say in how that happens is going far and above what the law allows for them.”
Commission Chairman Dan Vermillion of Livingston called the idea that mineral development could not coexist with conservation easements a “red herring,” pointing to his family’s ranch with split surface and mineral rights that also holds a conservation easement. If such easements were impermissible, few easements would ever come to fruition, he said.
Bozeman attorney Lilia Tyrrell represents Hodges and testified Thursday that habitat protection provisions of the easement could not be guaranteed if oil and gas exploration takes place. Courts have granted mineral right holders rights that can have a significant impact on the surface of a property, from constructing and maintaining pipelines and roads to disposing of waste.
“You’re paying a tremendous amount of money for property you cannot guarantee,” will not be developed, she said.
In response, Vermillion cautioned against arguing that oil and gas development could not coexist with hunting.
“What I heard today is a suggestion that oil and gas development in southeast Montana is inconsistent with hunting and fishing values and hunting and fishing for Montanans. I don’t think that’s the message that the oil and gas industry wants to send to the people of Montana. If it is, I think that’s concerning for a lot of sportsmen,” he said.
In a subsequent interview, Montana Petroleum Association communications director Jessica Sena said that a well on a 15,000-acre property would have a “miniscule” impact confined to a small area.
“We have plenty of wells surrounded by sage and habitat and wildlife,” she said. “In Montana you definitely have to do both, and that includes future reclamation of the sites.”
Further complicating the issue was conflicting testimony about the potential of development.
Tyrrell testified that her clients originally bought the property for the purpose of oil and gas development, and have recently been in contact with companies about leasing those rights. The area falls within the Bakken formation and an 11-county area identified for oil and gas development.
FWP’s contracted geologist disagreed. The immediate area has seen a few test wells drilled with most coming up dry and the nearest producing field a few miles away. He deemed the probability of development as low.
Conservation groups came out in support of easement for habitat and access while also framing it as a property right’s issue.
Joe Perry with Montana Sportsmen Alliance noted that the Republican-controlled Montana Legislature has made its preference known for FWP dollars to be spent on conservation easements rather than land purchases.
Commissioners, appointed by Democratic Gov. Steve Bullock, largely praised the easement before passing it unanimously.
"We have a family here who’s a lot more interested in raising cattle and kids than running dudes around shooting mule deer at $6,000 a pop,” said Commissioner Shane Colton of Billings. “We really have no choice on this. This is traditional Montana values. We’re taking care of these neighbors who’ve come to us as willing participants.”
The easement now faces a hearing and vote before the Montana State Board of Land Commissioners, which holds a 4-1 Republican majority.
This story has been changed to correctly identify Jessica Sena as communications director of the Montana Petroleum Association.