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Attorney General Tim Fox, left, and Gov. Steve Bullock listen to testimony

Attorney General Tim Fox, left, and Gov. Steve Bullock listen to testimony during a Feb. 20 Montana Land Board hearing regarding the Horse Creek Conservation Easement.

The clash between Montana’s governor and attorney general over who has jurisdiction over state conservation easements will be argued before the Montana Supreme Court next week.

In October, Republican Attorney General Tim Fox issued an attorney general’s opinion finding that Democratic Gov. Steve Bullock’s decision to circumvent the Montana State Board of Land Commissioners in approving an eastern Montana conservation easement ran counter to the law. In response, Bullock filed suit with the Montana Supreme Court, arguing that the opinion should be overturned and the state should be allowed to finalize easements without Land Board approval.

On Dec. 5, both sides will have a chance to make their cases to the justices, leaving the future of several proposed easements in question.

Montana law is clear that state purchases of land totaling more than 100 acres or $100,000 need Land Board approval. The board is made up of Bullock and Fox, along with state Auditor Matt Rosendale, Secretary of State Corey Stapleton and Superintendent of Public Instruction Elsie Arntzen.

What is unclear and at the heart of Bullock’s lawsuit is whether conservation easements, which are agreements with private landowners typically providing public access while curbing subdivision, also fall under the legal definition of “land acquisitions.” If they are not acquisitions, easements could be finalized with approval of an agency body such as the Montana Fish and Wildlife Commission.

“A conservation easement is simply not a ‘land acquisition,'” the lawsuit says. “No land is acquired in a conservation easement transaction. The landowner continues to own her land in fee, occupy it, and pay taxes on it.”

The legal issue came to light earlier this year after the Land Board voted to indefinitely delay action on the 15,000-acre, $6.1 million Horse Creek Conservation Easement near Wibaux. While Bullock and Fox voted against delay, they were voted down by the majority of Rosendale, Stapleton and Arntzen. Stapleton noted his opposition to locking in land management decisions in perpetuity, while Arntzen and Rosendale questioned the impacts to mineral development and later the appraisal.

Despite Montana Fish, Wildlife & Parks’ long-held practice of bringing easements to the Land Board and language in the easement saying it would seek board approval, Bullock, citing the plain language of statute, finalized the easement without the board’s approval. That prompted Republican Senate President Scott Sales to request the attorney general’s opinion.

Since Bullock’s decision, the Fish and Wildlife Commission has passed three conservation easements that now hang in a legal limbo until the Supreme Court rules. One easement needed to be finalized by Friday, but the landowners received an extension, Bullock’s office said.

In a legal reply to Bullock’s lawsuit, the attorney general’s office defends the opinion on two primary grounds.

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First, it argues because Bullock and FWP Director Martha Williams brought the lawsuit in their official capacities as public officials, they do not have legal standing. Their standing is flawed for several reasons, court documents contend, including because Bullock and Williams argue on behalf of the state while litigation on behalf of the state is exclusive to the attorney general.

Second, the attorney general’s reply reiterates legal arguments made in the original opinion, arguing that both court precedent and legislative intent include easements under land acquisitions.

Two conservation groups, the Public Land and Water Access Association and the Anaconda Sportsmen’s Club, filed amicus briefs with the court in support of Bullock’s position. Hunting and access advocates have cautioned that uncertainty on the Land Board could have a chilling effect on landowners willing to spend the time and money pursuing a state easement. The future of FWP’s main funding mechanism, the Habitat Montana account which uses license dollars to purchase access, may also be in jeopardy, they believe.

“While the legal issue presented is narrow, the impact of this decision will make a difference in the lives of sportsmen and other outdoor recreationists across Montana for years to come. The viability and continued success of the Habitat Montana program is at stake,” the association’s brief says.

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Reporter Tom Kuglin can be reached at 447-4076 @IR_TomKuglin

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