Two high-dollar conservation easements were approved by the Fish and Wildlife Commission on Wednesday, throwing fuel on a disagreement between Gov. Steve Bullock and Attorney General Tim Fox over whether the State Board of Land Commissioners has final approval of the agreements.
“Gov. Bullock has made clear that the Attorney General’s opinion adopts an incorrect view of Montana law,” wrote Ronja Abel, the governor’s communications director, in an email. “The governor is weighing his options and expects to respond shortly.”
Fox’s director of communications, John Barnes, said in an email that the AG's office expects the easements to go to the Land Board in November. On Monday the attorney general issued an opinion that said Bullock had “unilaterally ignored” the law in making his decision in June to approve a conservation easement without the Land Board’s approval, and that any conservation easement valued at more than $100,000 or larger than 100 acres must be approved by the board.
“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,” wrote Tom Kuglin, Independent Record reporter.
Earlier this year, three members of the State Board of Land Commissioners had stalled the 15,000-acre Horse Creek easement south of Glendive for three months, citing concern raised by the owner of the land’s mineral rights. After the board indefinitely deferred a decision, Bullock declared in June that their approval was only a courtesy and cited state statute when approving the $6.1 million agreement.
Ironically, only Fox and Bullock, two of five members of the state land board, had approved the Horse Creek easement. So the two members fighting over how the easement was approved are actually the two who agreed that it should have been OK’d by the land board in the first place.
The other board members are: Secretary of State Corey Stapleton, Commissioner of Securities and Insurance Matt Rosendale and Superintendent of Public Instruction Elsie Arntzen. Bullock is the only Democrat on the board.
The two conservation easements the Fish and Wildlife Commission approved Wednesday are seen as key to protecting wildlife habitat while also allowing public access and recreation.
The North Sunday Creek conservation easement protects from development 14,301 acres in Custer and Rosebud counties, north of Miles City. The appraisal price came back at more than $3.43 million. About 44 percent of the cost would be paid through the federal Agricultural Land Easements program. The remainder would come from the Habitat Montana program, which is funded by a diversion of $3 million a year from hunting license sales.
The landowner, Royce Ponessa, will provide 400 hunter-days annually if demand exists, but has the right to regulate public use.
The other conservation easement, located north of the ever-expanding city of Bozeman, would protect 450 acres along the western base of the Bridger Mountains and adjoin two existing conservation easements and the Custer Gallatin National Forest. An appraisal set the value for the property at more than $1.86 million. The landowner will donate $100,000 of the property’s value, reducing FWP’s cost to about $1.76 million. The property is considered critical winter mule deer habitat. Under the agreement, up to three hunters a day would be allowed on the land.
“Kudos to Region 3 for getting this done,” said commission chairman Dan Vermillion, of Livingston. “You were competing against some pretty deep pockets.”
So now the question arises: Where do the approved easements go from here?
“The Fish and Wildlife Commission has clear authority to approve conservation easements like this one,” Abel wrote to IR reporter Kuglin in June. “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.”
Three members of the Fish and Wildlife Commission stepped into the fray Wednesday.
“It’s unfortunate to see how much controversy has arisen,” Vermillion said.
He noted easements keep private landowners on their property by allowing them to extract cash from their land without selling it for development or subdivsion, and it’s a consensus-based approach to land management since landowners willingly enter into the agreements.
Rancher and commission member Richard Stuker, of Chinook, agreed. “We need to respect” private property rights, he said, adding that he hopes some of the political aspects can be removed from the process.
“In order to maintain hunting in Montana we need” landowners to agree to easements, said Shane Colton, commissioner from Billings.
All members of the Fish and Wildlife Commission are recommended by the governor but must be approved by the Legislature.
Also on the commission’s Wednesday agenda was the purchase of a 161-acre inholding within the Dome Mountain Wildlife Management Area, which is located at the southern end of the Paradise Valley. The parcel was purchased by The Conservation Fund, subject to an option agreement, allowing FWP time to arrange its purchase. The unique property was appraised at $1.37 million. The Conservation Fund has agreed to sell the land to FWP for $550,775.
In addition, FWP will turn over the conservation easement to the Rocky Mountain Elk Foundation for management. The WMA is prime winter habitat for elk, many of which migrate out of nearby Yellowstone National Park.
"To my knowledge, no one has ever claimed that a fee title acquisition does not require Land Board approval if it is over the 100 acre or $100,000 threshold," wrote Barnes, of the AG's office.