A question before the Montana Supreme Court may be a straightforward analysis of the law, but the justices’ decision will impact the oversight and may affect the viability of a state conservation program.
On Wednesday morning, attorneys for Democratic Gov. Steve Bullock and Republican Attorney General Tim Fox argued before the state’s high court over Montana Fish, Wildlife & Parks conservation easements, and whether the law requires the Montana State Board of Land Commissioners to approve them before they can be finalized.
Fox believes they need Land Board approval.
Bullock, the former attorney general, believes they do not.
Wednesday’s hearing was the culmination of several months of legal wrangling over Land Board authority. In April, Bullock and Fox were voted down by Secretary of State Corey Stapleton, state Auditor Matt Rosendale and Superintendent of Public Instruction Elsie Arntzen over passage of the 15,000-acre, $6.1 million Horse Creek Conservation Easement near Wibaux.
Stapleton, Rosendale and Arntzen voted to delay action on the easement first due to concerns from mineral interests and later citing questions over the appraisal. Stapleton has also been an outspoken opponent of perpetual land management decisions that lock in future generations.
The Horse Creek vote led Bullock to circumvent the board, citing a reading of state law that says “land acquisitions” of more than 100 acres or $100,000 need Land Board approval. FWP conservation easements, legal agreements typically providing public access while limiting development, do not acquire any land, he argued, and the state closed on Horse Creek without board approval.
FWP conservation easements fall under different laws and regulations than those held by private land trusts, which remain unaffected by any of the proceedings.
Senate President Scott Sales asked Fox to formally weigh in on Bullock’s move with an attorney general’s opinion, which carries the weight of the law unless overruled by a court. The opinion found Bullock erred in his decision, with Fox characterizing it as “unilaterally ignoring” the law and years of prior practice.
With three easements now in legal limbo having passed the Montana Fish and Wildlife Commission but not the Land Board, Bullock took the case directly to the Supreme Court.
Raph Graybill, representing Bullock and FWP director Martha Williams as public officials, argued that both the opinion and a response brief to the lawsuit do not pass legal muster.
The brief contends that Bullock and Williams, because they filed in their official capacities, do not have legal standing to bring the case and had not cited an “injury” to be remedied by the court.
“If the attorney general’s argument is correct, that he can invoke his power to give legal opinions, and that these opinions can restrain the conduct of separately elected constitutional officers, and yet the opinions are unreviewable as to those officers, that would significantly reorder our separation of powers,” Graybill told the court.
Graybill went on to argue that the two legal terms “land acquisition” and “an interest in land” are not synonymous as claimed by the attorney general’s opinion, citing other areas of the law where both are used independently.
“In this case the term ‘land acquisitions’ simply does not encompass conservation easements, because conservation easements aren’t land,” he said.
In an exchange mixed with seriousness and levity, Justice Dirk Sandefur interjected and asked Graybill what is at the heart of the lawsuit.
“This is a simple legal case that is pretty straightforward the way I see it, and we’ll decide it on those grounds, but what’s going on here?” Sandefur asked. “Why is the attorney general and the governor fighting over the interpretation of these statutes? What’s the larger game here?”
At the heart of the case is the administration of the Habitat Montana program, an account generated by hunting license sales to purchase access both via land purchase and conservation easements, Graybill replied.
Habitat Montana has become a political issue in recent years both due to FWP land purchases that did not enjoy local support as well as a general opposition among some Montanans about expanding state ownership and influence. Conservation groups have rallied support around the program as a critical tool for expanding public access.
Chief Justice Mike McGrath went a step further, saying the issue appeared to center on which executive officer, the attorney general or the governor, has the authority over FWP.
Deputy Attorney General Rob Cameron countered that despite the testimony, “Habitat Montana is alive and well” under the current Land Board, pointing to two recently approved FWP land purchases. The “emergency” that necessitated an expedited hearing before the Supreme Court is of Bullock and FWP’s own making, he said.
“Given the fact that the AG opinion is currently operative, why in the world have they not just gone ahead and submitted these conservation easements to the Land Board for approval?” he asked, noting that such submissions could be made with legal caveats.
“When you read their petition and look for a reason why they haven’t submitted these to the Land Board for these many months, the answer appears to be, the Land Board might say ‘No.’”
Cameron pointed out that while the Land Board delayed action on Horse Creek, it did not vote it down and has not voted down a new conservation easement.
The Land Board did vote down an amendment to an existing easement earlier this year.
Cameron also argued that the timeline of Horse Creek, which passed the fish and wildlife commission on a Thursday and came to the Land Board on the following Tuesday, showed the reasonableness of the majority’s vote to delay action.
While the court has not set a timeline for its decision, one easement in question secured an extension at the end of November pending the ruling and two other easements face an end-of-the-year deadline.