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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.

Gov. Steve Bullock “unilaterally ignored” the law when he circumvented the Montana State Board of Land Commissioners to approve an eastern Montana conservation easement, Attorney General Tim Fox said Monday.

Montana Fish, Wildlife & Parks must get approval from the Montana State Board of Land Commissioners in order to purchase conservation easements of more than 100 acres or $100,000, according to an attorney general’s opinion. Fox’s opinion, which carries the weight of the law unless overturned by a court, was issued in response to a request from Montana Senate President Scott Sales, R-Bozeman, to clarify the Land Board’s role in FWP easements.

Sales’ request came after Bullock, a Democrat, allowed FWP to finalize the 15,000-acre, $6.1 million Horse Creek Conservation Easement near Wibaux. Superintendent of Public Instruction Elsie Arntzen, state Auditor Matt Rosendale and Secretary of State Corey Stapleton had voted to indefinitely delay action on the easement. Stapleton said he opposed easements that go into perpetuity, while Arntzen and Rosendale said they wanted more time to review impacts to mineral rights, and later needed additional time to review the appraisal.

All of the Republican board members were critical of Bullock’s decision.

The Stenson family, who own the Horse Creek property, have said they believed the vote to delay was political and ignored their private property rights.

Fox, a Republican, joined Bullock in voting against the delay, and said in an interview that he would have voted to approve the easement.

“I’ve voted for every conservation easement that’s come before the board,” Fox said, adding that he believes they play an important role in providing public recreation access. “But the governor decided to unilaterally ignore the law, and that put the parties in a very difficult situation. The governor cannot unilaterally change the status quo for a process that’s been done for 37 years.”

Fox said he shared in Bullock's frustration over delays in the process, but believes Horse Creek was close to getting the votes necessary for Land Board approval.

“I encouraged the governor to engage in statesmanship, negotiations and I tried to do that as well, but he decided to jettison long-held procedures, and I believe it was a political decision,” he said.

The attorney general's opinion answers a legal question rather than adjudicating a particular case, meaning it does not have a direct impact on Horse Creek.

The legal disagreement centers on the definition of “land acquisition.”

Bullock has been outspoken over the delay and defended the decision to circumvent the board as legally sound and bringing stability to landowners who spend years working on easements only to now see those in jeopardy. The statute does not explicitly mention conservation easements as falling under Land Board authority, and the administration has maintained that the easement was legally finalized when the Montana Fish and Wildlife Commission unanimously approved Horse Creek.

The law in question was passed in 1981, a time when conservation easements were at their infancy and legislative debate was focused on loss of property tax revenue following FWP purchases, according to official comments on the draft AG report. The previous practice of bringing easements of more than 100 acres or $100,000 before the board has been a “courtesy,” but ultimately not legally necessary, Bullock and members of his administration have said.

“It’s disappointing Attorney General Fox is doubling down on an incorrect proposition of law, one that will destabilize the conservation easement process and create more uncertainty for families and landowners who want to do right by the public and make their land open to access,” Bullock’s office said in a statement. “Governor Bullock will continue to fight for landowners, sportsmen, and public access.”

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Fox’s attorney general opinion rebuts those arguments, saying that testimony from the time shows easements were part of the debate and FWP’s previous practice and legal documents show it recognizes a requirement to go before the Land Board.

The opinion points to 1981 testimony from then FWP Director Jim Flynn, in which he “acknowledges that the statutory language ‘land acquisition’ encompasses ‘all acquisitions’ by FWP.”

While “land acquisition” is not defined either in Montana statute or case law, other jurisdictions have found easements as falling under acquisition, the opinion says.

FWP has followed the Land Board approval process since then, and its easement documents put out to the public have included the caveat that it will seek Land Board approval, according to the opinion.

“The remarkable suggest that FWP has sought Land Board approval for every conservation easement since 1981 as a mere courtesy is simply unsupportable,” the opinion says.

Fox indicated a potential fallout between Bullock and the rest of the Land Board over the decision, saying he believes it has caused a distrust of the governor among the other board members. While Fox and Bullock have had long tenures on the board, Stapleton, Rosendale and Arntzen are “still learning the ropes” after their 2016 elections, he said, and processes must allow them to adequately ask questions and have them answered.

A request for comment from Sales was not returned in time for this story.

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

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Natural Resources Reporter

Natural Resources Reporter / Assistant Editor for The Independent Record.

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