The state of Montana closed on a Glendive-area conservation easement Thursday, circumventing the state Board of Land Commissioners' decision to indefinitely delay action on the matter.
Gov. Steve Bullock has concluded that the land board lacks authority over the easement, a decision that drew criticism from every other elected official who sits on the board.
The 15,000-acre Horse Creek Conservation Easement between the Stenson family and Montana Fish, Wildlife & Parks would provide walk-in public access and management for wildlife habitat and agriculture while foregoing subdivision. The $6.1 million easement included $4.3 million from the Habitat Montana program, funded by hunting and fishing license revenue, with the remainder in federal funding.
The easement includes access to an additional 5,000 acres of public lands.
The easement became embroiled in a property rights debate when owners of the mineral rights, Hodges Ranch, objected due to concerns that it could affect potential oil and gas development. That argument was countered by the Stensons and others who maintained that contracting the surface rights via easement was reserved to the surface right holders, and that the easement could not legally affect the mineral rights.
In February, the governor-appointed Montana Fish and Wildlife Commission unanimously approved the easement, sending it to the land board.
Citing a need for more time and documentation, the majority of the board indefinitely delayed action on the easement the following week. Republicans Secretary of State Corey Stapleton, Superintendent of Public Instruction Elsie Arntzen and state Auditor Matt Rosendale voted for the delay. Bullock, a Democrat, was joined by Republican Attorney General Tim Fox in voting against delay.
Testimony at the time cautioned that delaying the decision jeopardized the viability of the easement, as completion secured funding for additional land purchases.
By March, mediation was underway between the Stensons, FWP and the mineral rights holders. Rosendale said he believed the property rights issues had been settled with additional legal language requested by Hodges Ranch, but questions about the valuation of the easement remained.
The governor then questioned whether the land board had authority over the easement, citing a statute covering state easements and land acquisitions, which reads in part “the department, with the consent of the commission or the board and, in the case of land acquisition involving more than 100 acres or $100,000 in value, the approval of the board of land commissioners, may acquire by purchase, lease, agreement, gift, or devise and may acquire easements upon lands or waters for the purposes listed in this subsection.”
Relying on the statute, Bullock's office said Wednesday that the state would move forward and close on the easement without land board approval. Bullock, as chairman of the land board, sets the agenda.
“The Fish and Wildlife Commission has clear authority to approve conservation easements like this one,” Ronja Abel, the governor’s communications director, said in an email. “It conducted extensive environmental review and public process that included discussions with county commissioners, deliberated, and approved the easement. State action on the easement was complete when the Commission acted.
“In the past, as a matter of courtesy, FWP has often asked the Board of Land Commissioners to add an additional layer of state approval. Under the law, however, Land Board approval is only actually required for large fee acquisitions of land.”
Proponent and opponent reaction
Adele Stenson said Thursday her family was thankful for the support they received while navigating the public process, which took about two years.
“Our family is excited and relieved to finally have this process completed. Besides the personal stress, this process almost derailed what is an incredible opportunity for the sportsmen and women of Montana.
“We are looking forward to working with FWP and the public to implement this easement. Beyond how the easement directly benefits the ranch as a business, we are excited to implement the changes for the good of wildlife and public access.”
Completion of the easement also drew praise from early supporters the Montana Wildlife Federation.
“We’re glad to see the completion of this easement after two years of work between the Stenson family and the state of Montana,” Executive Director Dave Chadwick said in a statement. “Governor Bullock’s decision to finalize this project gets us past the unnecessary delay tactics on the State Land Board by state Auditor Matt Rosendale, Superintendent Elsie Arntzen and Secretary of State Corey Stapleton, and lets these landowners move ahead with their desire to double the amount of public access in Dawson and Wibaux counties.”
Hodges Ranch said through its attorney that Thursday’s announcement was unexpected and that it had not received notice from the state, nor a final copy of the easement ahead of time.
“It came as a great surprise today to learn that the Governor circumvented the required Land Board approval process in the closing of the Horse Creek Conservation Easement,” Hodges Ranch said.
“It is this lack of communication and the choice to ignore a required approval process that does a disservice to Hodges Ranch and the people of the State of Montana. Hodges Ranch is disappointed and working with interested parties to determine the appropriate next steps.”
Officials with the Montana Petroleum Association, which supported delaying a vote on the easement and met with FWP about language protecting mineral rights, said they were also surprised Thursday.
“We were very appreciative that the Land Board would take the time to listen to our concerns on the Horse Creek Conservation Easement, and appreciate FWP sitting down and listening,” said Executive Director Alan Olson. “We are very surprised this has not come up for another vote at the Land Board and the Governor has decided to make this unilateral decision.”
Land board reaction
Bullock’s decision also drew criticism from the other members of the land board on Thursday.
“Clearly the Land Board does not exist as a courtesy,” Stapleton said. “It is important that it functions as a check and balance against any one member having too much power.”
Stapleton has been outspoken during hearings and again Thursday against easements that last into perpetuity, feeling that perpetual restrictions unfairly hamper future decisions. He was also critical of aspects of Horse Creek, saying that because the family had purchased the property in 2011, he did not consider the easement a “legacy impact” and questioned claims about the public access benefits.
“It’s kind of like in the Legislature, if we wanted to pass something we’d say it was very good and helped vets or kids,” he said. “In this case, they’re saying it’s for hunters.
“The reason why this didn’t pass muster with the Land Board is it has the feel of the Milk River Ranch (purchased under the Schweitzer administration). It gets sold as some great thing and turns out to be not what it’s made out to be.”
Fox also disagreed with the decision.
"I voted with the Governor to approve the Horse Creek proposal. However, I disagree with the Governor's current approach,” he said in a statement. “Not only is he ignoring long-standing practice, he has created a scenario in which the land title for the Horse Creek property is in legal limbo. I'm disappointed with the Governor's decision."
Spokesmen for Arntzen and Rosendale issued opposition statements as well.
“As Vice Chair of the State Board of Land Commissioners, Superintendent Arntzen disagrees with the Governor's decision. It sets poor precedent and goes against the historical record of the Board. The Board is a constitutional body elected by Montanans and important land transactions like this should not be made unilaterally.”
“Commissioner Rosendale thinks that large land deals involving public conservation dollars should have as much public oversight as possible. The Auditor's office didn't even receive enough information to evaluate the proposal (like the appraisal) until after the Land Board voted to delay action on the easement. Matt has supported numerous easements and land acquisitions to increase public access to lands during his time on the Land Board, and thinks it's especially prudent to closely examine an easement that will cost about $2 million more than the property owners paid for the land itself.”
The Stensons purchased the ranch in 2011 for about $4 million, however, securing the easement included purchase of an additional five sections of land that is included. Other improvements, including construction of a house, have been made, according to the family and verified by state documents.
Bullock’s office responded to the criticism from his fellow board members Thursday.
"Governor Bullock is not willing to deny Montanans the right to 600 hunter days per year and access to 20,000 acres of new recreation opportunities in eastern Montana. Nor will he allow further delays to risk federal funding and the good faith investments of the Stenson family."