Montana Republican lawmakers are bringing legislation to reverse a recent Montana Supreme Court decision on state-owned conservation easements.
Bozeman Rep. Kerry White and Wibaux Sen. Steve Hinebauch each have bill drafts that would place the final authority on conservation easements owned by Montana Fish, Wildlife & Parks under the Montana State Board of Land Commissioners. The bills have not yet been introduced into committee.
The bills stem from a legal dispute between Democratic Gov. Steve Bullock and Republican Attorney General Tim Fox over easements and Land Board authority. Last year, board chair Bullock, frustrated by a vote to delay by fellow Land Board members Republicans Corey Stapleton, state Auditor Matt Rosendale and Superintendent of Public Instruction Elsie Arntzen, circumvented the board to finalize the Horse Creek Conservation Easement near Wibaux.
FWP easements had traditionally gone before both Fish and Wildlife Commission and Land Board for approval. But Bullock cited a narrow reading of the law in deciding that only land purchases, rather than state easements that typically provide public access while curbing development, require approval from both panels. Easements only require commission approval, he determined.
Fox joined Bullock in opposing the delay but joined the other Republicans in criticizing Bullock’s decision to circumvent the board.
Senate Majority Leader Scott Sales, R-Bozeman, asked Fox to review the legality of the decision in an attorney general’s opinion. When Fox issued the opinion, it found Land Board approval was necessary, which elicited a challenge from Bullock to the Montana Supreme Court.
In a 6-1 decision, the court sided with Bullock and overturned Fox’s opinion, finding that easements do not need Land Board authority and paving the way for FWP to finalize about a dozen easements.
Both White’s and Hinebauch’s legislation would require Land Board approval for FWP conservation easements. White had been outspoken during the legislative interim as a member of the Environmental Quality Council, where he criticized Bullock’s decision by citing environmental analysis documents for Horse Creek that stipulated Land Board approval would be sought.
White said Monday his bill seeks to clarify the legal disagreement between the Supreme Court and attorney general’s opinion and provide additional scrutiny to the spending of public money.
White clarified that the bill only deals with the spending of state funds, and would not impact conservation easements held by private interests.
Hinebauch echoed the goal of his legislation to bring additional oversight to state spending.
“I just think it’s better to have a broader base for decisions than to have one person make that decision,” he said. Hinebauch said he was not aware of White’s legislation and would confer with the representative to determine a course of action going forward.
Following the court’s decision, Sales said in an interview he did not believe legislation such as those proposed by White and Hinebauch would be fruitful given that Bullock would hold veto power. Hinebauch said Monday he believed the bill would be in Bullock’s interest to consider as a long-term proposition, when he is no longer governor and the make-up of the Land Board changes.
Bullock has defended the decision as important to land owners by providing a clear process for obtaining an easement, which may take years and thousands of dollars. When asked for comment on the bill, communications director Ronja Abel indicated that the governor remains firm in his position.
"Gov. Bullock sees no need to revisit what is now settled law over the role of the Land Board in reviewing conservation easements and further, can't comprehend why subjecting private landowners to an unnecessary, duplicative and unpredictable review would be in the best interest of our state's private landowners and sportsmen and women.”
John Barnes, Montana Department of Justice communications director, noted that while the Supreme Court did rule, it has yet to issue a legal opinion detailing how the law will be impacted. The department has not seen the easement bills yet to comment on them, he said, but does believe easements should be reviewed and approved by the Land Board as was the previous practice.
Reporter Tom Kuglin can be reached at 447-4076 @IR_TomKuglin
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