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Deb and Dennis Milburn walk their land along Austin Road, land that Native American tribes called home and then ceded to those who came in search of gold.

Weathered log and plank buildings along Birdseye Road are the legacy of miners and merchants. Stones, laid in a circular pattern and now sinking into the ground, mark where tepees once stood.

Sevenmile Creek murmurs behind willows, whose leaves are golden with autumn color. Chokecherries also stand along the creek and provide food for bears this time of year. Tan bunches of sere grasses complete a scene likely familiar to any of those who once lived or camped here.

“It’s pretty special for us,” Deb said. “I can’t believe our good fortune.”

An October breeze on this day is sharp with cold, a harbinger of what’s to come, as the Milburns talk about how they came to acquire this parcel and why they chose to make sure it would never be subdivided.

They are among the first families locally whose subdivision rights have been purchased through the Lewis and Clark County open lands program, which was approved by voters in 2008. The program has seen new attention lately as the debate on mandating public access as part of conservation easements has resumed.

Those who support access say the public needs more than open space for what it pays; opponents say landowners won’t participate if access is forced upon them and the price for access is far greater than what’s offered solely for development rights.

While the county has sold bonds to have $3 million available for protecting open space, it’s used only about $1 million of that money for conservation easements. Changes in the process to evaluate applications and a restructuring of the open lands advisory committee are anticipated to help generate new interest in landowner participation.

The Milburns had for 23 years driven past the land that would become their home before the opportunity arose in 2003 to purchase some of the property. They bought a second parcel in 2006.

The purchase of the second tract depleted their savings. A conservation easement allowed them to recoup some of that money and still meet their goals for the land, the Milburns said.

The development rights on 260 acres of the Milburn property were valued at $569,000. About half of that value was donated by the family when agreeing to a conservation easement on their land. Much of that donation came from 10 acres, with the historic buildings, that were given to the Prickly Pear Land Trust, Dennis said.

Those acres are destined to be managed by another agency, he noted.

Because their land has a mile of creek frontage, it has a high potential for subdivision, which the Milburns said they didn’t want to see happen. They both retired from the Forest Service. Dennis had 32 years and specialized in fire management while Deb worked in office support and left the agency after 27 years.

“For the conservation value, we really wanted to do it, and the open space bond made it possible,” Dennis said.  “It basically guarantees the management we wanted to do will stay with it forever."

Lingering controversy

After the county’s open space bond won voter approval, seven criteria were developed to gauge the value of land proposed for conservation easements. Six of them are used in an evaluation as the seventh one, manage growth and development, is presumed to be met.

Conserving working farms and ranches, conserving working forests, protecting habitat for fish and wildlife, providing opportunities for outdoor recreation, protecting water resources and water quality and preserving open lands and natural areas constitute the yardstick for measuring properties. However, a property must meet only one criterion to be eligible for consideration.

The criterion that calls for providing opportunities for outdoor recreation -- public access onto private lands -- has created renewed controversy with the current proposed conservation easement for land owned by the Donald M. Johnston Trust of Nashville, Tennessee.

The development rights on the 507 acres the Johnstons are offering for a conservation easement are valued at $360,000. Johnston is offering to donate 10 percent of that value. The county is being asked to approve $324,000 from the open space bond to fund the purchase.

The property meets four of the criteria used for evaluating lands for a possible conservation easement, although public access is not among them.

Opposition has risen from a handful of people and one organization: the Helena Hunters & Anglers Association.

Stan Frasier, the organization’s president, told the county commission he would like to see public access to the Johnston property, but he said his objection was more focused on the commercial use of wildlife.

Johnston’s application for the conservation easement states that money from it will be used to pay off the debt on the property. About half of the acreage is to be sold to the neighboring Wirth family to also help reduce or retire the loan.

The Wirths plans for the property say they will use it for their dude-ranching business and incorporate it into their ranch operations, the application states.

Gayle Joslin, the treasurer and program manager for the Helena Hunters & Anglers Association, said the proposed cost for the Johnston conservation easement raised questions for the group on commercial use of wildlife.

The association is not opposed to conservation easements, she said.

“Our board, in general, felt it doesn’t pass the taste test, that’s all," she said.

Receiving money for the conservation easement and then charging people to come onto property to hunt or fish is, she said, “kind of double-dipping.”

A member of the Wirth family told the county commission that the guests who come to the ranch ride horses, and perhaps five of them fished in the creeks that flow through the property.

Joslin also questioned the timing for the proposed easement and said it comes at the 11th hour.

The application for the county open space bond funds noted that the Johnstons’ loan comes due in early 2015.

“This is a very small parcel that a lot of money will be spent on with no specific public benefit,” Joslin said.

“If there was some public benefit factored in at some level, it would be more palatable,” she added.

Providing permanent public access creates a greater reduction in a property’s value than does giving up only the right to subdivide the land, said Jay Erickson, who’s been a managing director of the Montana Land Reliance for 15 years. He shares that role with Paul “Rock” Ringling, who has 25 years with the organization.

“It’s not fair to pick on the county open space bond to provide permanent, public access in every transaction as there’s other groups already providing the funds to do that,” he said.

Based on previous sales of land where permanent public access to private property has been created, there’s a 70 percent reduction in land value, Erickson explained.

While people can criticize the lack of access, they need to realize that to have it included means paying much more to the landowner, Erickson said.

Dude ranching is part of Montana’s heritage, said John Tietz, a Helena attorney who enjoys mountain biking, skiing and trail running. He’s also president of the Lewis and Clark County Citizens Advisory Committee on Open Space.

If there was a commercialization of wildlife component to a proposed conservation easement, that would be evaluated, Tietz said.

“Access was not a component of what was approved in 2008” by voters, he noted. “The landowners that were on the (Heritage lands Working Group) committee were very, very adamant that access not be a requirement.”

Requiring public access as part of a conservation easement also gives Dennis Milburn pause.

“I don’t want to have unfettered access,” he said, explaining he wants to know who is on the land and to explain the rules for using the property.

He and Deb do let people fish the creek and use the old buildings for scenic backdrops for photography. Having people roaming the property with its livestock, he said, “it would be a worry.”

Preservation for perpetuity

Giving up development rights on rural land that could just as easily be carved into lots for homes offers property owners several benefits.

For some, the sale of a conservation easement provides money to perhaps pay off the land or, in the case of the Milburns, to recoup their nest egg and ensure the land's future.

Conservation easements can also come into play when the family farm or ranch is going to be passed to the next generation as this is a way to address estate taxes.

There’s close to 2,000 conservation easements in Montana involving 2.3 million acres held by private, nonprofit groups as well as state and federal agencies, said Glenn Marx, executive director of the Montana Association of Land Trusts.

Next year will mark the 40th year for the state law that allows the easements, Marx said, adding that landowner interest remains extremely high.

The law, he said, “was sort of written by landowners and very private-property based.”

The online National Conservation Easement Database charts easements in states, and from 1976 through 2012 in Montana, the graph of protected acreage shows several spikes.

Residents of Gallatin, Missoula and Ravalli counties, like people in Lewis and Clark County, approved open space bonds. They saw the pace of development escalate from about 2000 to 2008 and wanted to ensure there was a means for protecting open space.

There was significant interest statewide in the late 1980s in conservation easements and into the early 1990s before a precipitous decline. 

During the first few years of this century, the acreage going into easements rose and then declined slightly before rising to its highest level yet. The trend since then generally reflects fewer acres being protected.

When a landowner goes through the conservation easement process, neighbors will watch and wait to see what happens, Marx said.

When neighbors see an easement hasn’t affected the land’s agricultural production and the family is pleased with the decision, they give it more thought. Then there’s a second and third family that expresses interest, Marx explained.

“I call these conservation easement neighborhoods," he said. 

Marx calls the Blackfoot Valley the “cradle of conservation easements” in the state.

Landowners there focused on broad areas of agreement and ultimately formed the Blackfoot Challenge, a community collaborative that recently marked its 20th year, Marx said.

While the financial aspect is an incentive for some landowners, others recognize the intrinsic value of open lands.

“There’s quite a few people that really want to conserve their property who aren’t in it for the money,” said Erickson, with the Montana Land Reliance.

Estate planning and protecting a family resource are reasons that draw some to consider conservation easements, he added.

“Every family has a different situation,” he said. “You also have totally altruistic situations.”

“This landscape of agriculture and working lands is part of the heritage of Montana,” said Andy Baur, executive director of the Prickly Pear Land Trust.

Agriculture and working lands are important to Montana’s economy as well as to its wildlife, Baur said.

Streamlining the process

The Lewis and Clark County Commission recently approved a more compact process to evaluate lands for conservation easement funding through the open space bond.

Bill Long of Solid Ground Consulting was asked to review the former process after the open space board considered what needed to be done to attract more landowner interest.

He concluded the process was too cumbersome and the makeup of the board was too centered on Helena and the Helena Valley, Tietz said.

County commission Chairwoman Susan Good Geise, who describes herself as a fiscal conservative, wasn’t on the commission in 2008 when the open space bond was brought before voters.

Joining an open space advisory committee meeting, she listened as it sought to reconstitute itself.

While the committee wanted to add landowners to its membership, she volunteered that being a landowner wasn’t enough.

“The face of Augusta is changing,” she explained. "And it’s no longer only those who make their living ranching or cutting timber. People are moving there for the recreational value.

“My suggestion was to include some people who made their livings off the land. That would be ranchers, timber or any kind of agricultural producer,” she said.

Her suggestion was embraced by the committee that proposed up to 13 members of which four would be selected based on being representative of farming, ranching and timber interests in the county. The remaining members would be selected at-large from the county.

As members leave the board, the new make-up will take effect.

“It will lend some legitimacy to the program among other landowners,” Baur said.

The new process, he added, “will help the landowners feel more comfortable that they won’t be waiting forever to get a project done.”

No projects have yet gone through the new process, although the Prickly Pear Land Trust has some landowners who are interested in pursuing conservation easements.

Just how well it will work, Tietz said, “of course like all things, we’ll see.”

But he too likes the new focus on adding board members who work the land.

“People will become more comfortable with people they believe understand their concerns, trials and tribulations of trying to keep a ranch or farm a viable operation in this day and age,” he said.

Long’s report has also spurred more county interest and support for the work of the open lands citizens’ advisory board, Tietz added.

“As a private citizen, I voted against this,” Geise said of the bond, explaining, “I live in Augusta. We’ve got plenty of open land in Augusta. But then I became a commissioner, and I must have a much broader view.”

“Now it’s up to every commissioner to make sure it works as best as it possibly can. That’s the job of a commissioner,” she said.

Between 7,000 and 17,000 people will be moving here in the next decade, she said, explaining younger people today move to where they want to live and then look for employment.

It’s the amenities that the community offers that attract people, and for many having open space such as Mt. Helena City Park is important, Geise said.

“For a lot of people, it feeds their soul to be outside,” she added.

Open space, she said, “it has to be part of the big picture as we move Lewis and Clark County into the future.”

It’s been six years since the bond was approved, and the controversy with the Johnston proposal, Tietz said, has elevated the program in the public’s consciousness.

“I think it’s important to preserve our heritage and the heritage of Montana,” he said of the value of open space. “It preserves that character that is the quintessential Montana: That is open fields, cows, horses, people working the land, being able to make a living off the land.”

Al Knauber can be reached at al.knauber@helenair.com

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I am a staff writer at the Independent Record covering primarily city and county governments.

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