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Bill looks to bring FWP conservation easements back to Land Board

Bill looks to bring FWP conservation easements back to Land Board

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A two-track road winds through the conservation easement between Birdtail Butte, left, and Lionshead Butte.

A two-track road winds through the conservation easement between Birdtail Butte, left, and Lionshead Butte.

A Kalispell lawmaker’s bill heard Thursday would put final decisions on Montana Fish, Wildlife & Parks’ conservation easements in the hands of the Montana Board of Land Commissioners.

Republican Sen. Keith Regier, of Kalispell, said Senate Bill 115 is about creating more accountability by putting potentially multi-million dollar decisions before elected officials rather than a state agency and appointed board.

“Gotta remember Senate Bill 115 does not stop easements, it doesn’t stop them,” Regier told the Senate Fish and Game Committee. “Having elected officials involved in the process is good for the people of Montana.”

Sen. Keith Regier, R-Kalispell

Sen. Keith Regier, R-Kalispell speaks during a meeting of the Senate Judiciary Committee.

But opponents of the bill testified that it adds an unnecessary level of red tape and creates uncertainty at the end of lengthy and complicated transactions that include thorough vetting processes.

“What we’ve seen over time is that this (process) has been very effective, and I don’t think that there’s anything that could be added to that process, including oversight that has occurred, let’s call it the 11th hour, when a nearly completed easement goes in front of the Land Board and all of that work could potentially could be negated because of that additional layer,” testified Robert Sanders with Ducks Unlimited. “I would argue that it’s probably not necessary with all of the other experts involved in the process.”

SB 115 stems from a dispute in 2018 that eventually saw the Montana Supreme Court rule in favor of former Democratic Gov. Steve Bullock over former Republican Attorney General Tim Fox.

FWP and Wibaux-area ranchers the Stenson family came to the Land Board — which includes the governor, attorney general, state auditor, superintendent of public instruction and secretary of state — for a vote on the Horse Creek Conservation Easement. The easement had already seen approval by the Montana Fish and Wildlife Commission and Land Board votes had historically supported the vast majority of easements.

While the Stensons owned the surface rights, another family retained the mineral rights and the latter raised concerns that a conservation easement could negatively impact them — a point which Fox characterized as a “red herring.”

Former Secretary of State Corey Stapleton, former State Auditor Matt Rosendale, Superintendent of Public Instruction Elsie Arntzen voted to delay action on the easement while Bullock and Fox opposed. Bullock, citing an interpretation of the law that the Montana Fish and Wildlife Commission rather than the Land Board has final authority, then pushed the easement through months later.

The Republicans were critical of the governor. Fox, at the request of former Montana Senate President Scott Sales, a Republican, drafted an attorney general’s opinion finding that FWP easements should legally require Land Board Approval.

Bullock then filed an original proceeding with the Montana Supreme Court for a final say on the matter. The court agreed with the then-governor and FWP and the commission finalized a number of easements in the final years of his administration.

In the 2019 session the Legislature passed a similar bill to SB 115, which was met with a Bullock veto.

One of those easements was completed by Cascade area rancher John Rumney. He was in the middle of the easement process with FWP in the months between the Land Board vote and Montana Supreme Court decision, and testified Thursday about the uncertainty it caused as he sought the funds to expand his ranch.

“Allowing the Land Board into the decision making process is adding an unnecessary layer of bureaucracy and infringing on property owners’ rights,” he said. “After nearly losing our opportunity due to government overreach, I strongly urge you to kill this bill.”

Other organizations including the Montana Wildlife Federation, Montana Trout Unlimited, Back Country Hunters and Anglers and The Trust for Public Land also came in as opponents to the bill Thursday. The legislation did not see anyone testify in support.

In a larger debate about public access programs, what played out also became a question of the Habitat Montana Program and the state’s role in purchasing access. While a variety of organizations and federal agencies offer easements, the state’s program uses hunting and fishing license dollars to fund land purchases and easements. The state’s easements require public access while curbing development for wildlife habitat, and have become a rallying cry from many conservation groups touting them as beneficial to both willing property owners and hunters.

Habitat Montana is not without its critics, particularly those opposed to the state of Montana purchasing land, while the easement program has come under increasing scrutiny as well. In addition to Regier’s bill, lawmakers have a proposed a bill this session that would block the funds from being used to purchase land.

Under questioning from Democrats, Regier maintained that the bill was about accountability for spending public dollars and that he felt the Land Board offered more accountability.

The committee took no immediate action on the bill.

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Tom Kuglin is the deputy editor for the Lee Newspapers State Bureau. His coverage focuses on outdoors, recreation and natural resources.

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State Reporter

Tom Kuglin is the deputy editor for the Lee Newspapers State Bureau. His coverage focuses on outdoors, recreation and natural resources.

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