Sportsmen side with FWP in fight over conservation easement approval authority

As the question of which state body can approve conservation easements heads to the Montana Supreme Court, some organizations are backing the Department of Fish, Wildlife & Parks and the governor.

Last month, Gov. Steve Bullock appealed to the state's high court, asking justices to overturn an Oct. 15 opinion issued by Attorney General Tim Fox requiring approval by the state Land Board before conservation easements are finalized.

Now, the Anaconda Sportsmen’s Club and the Public Land Water Access Association have joined the suit in support of the governor, who believes approval authority rests with FWP.

The Supreme Court has scheduled oral arguments for Dec. 5.

“The type of uncertainty created by the (attorney general's) opinion will kill projects before they even start. Reasonable landowners will not approach FWP to begin such a lengthy, expensive project with the current risk of having the project summarily denied by the land board,” wrote PLWA attorney Jim Goetz.

In his opinion, Fox said the state Land Board had the authority to reject Fish, Wildlife & Parks’ lease of any conservation easement of more than 100 acres or costing more than $100,000. That’s because the law puts those limits on “land acquisitions.”

That's counter to how the five-member Land Board has operated in the past. For years, the board deliberated on land purchases but not conservation easements, which were presented to the board almost as informational items. They were not considered land acquisitions.

But this year, the Republican-dominated board started withholding approval of conservation easements. It came to a head when three members voted to delay the $6.1 million Horse Creek easement, which covers more than 15,000 acres in Wibaux and Dawson counties in eastern Montana.

Often, such a delay means the death of an easement because land trusts or Fish, Wildlife & Parks often rely on other sources of funding that have short drop-dead dates.

After reviewing state law, Bullock approved the Horse Creek easement a few months later in time for the deal to survive. The governor concluded that the FWP Commission, not the Land Board, has the authority to approve or deny easements. And the FWP Commission had unanimously approved the Horse Creek easement.

Now, Fox’s opinion has put three more easements in jeopardy, and it’s coming down to the wire. At least one easement needs approval by Nov. 30, and FWP Lands Program Manager Darlene Edge said that hadn’t changed.

Montana Wildlife Federation spokesman Nick Gevock said landowners can get extensions under special circumstances like this, as long as it doesn’t drag on.

“We certainly hope they get an extension because we’d hate to lose a real quality project,” Gevock said.

Both the PLWA and the Anaconda Sportsmen’s Club are concerned with the implications if Fox’s opinion is allowed to stand.

The PLWA is no stranger to the Montana Supreme Court, having fought many public land access battles in state courts.

Most notably, PLWA used the state stream access law to argue before the Supreme Court that anglers should be allowed to use a bridge and surrounding easement to access the Ruby River. James Cox Kennedy, CEO of Cox Enterprises, an Atlanta-based media company, tried to block access that anglers had used for decades. After a decade in the courts, the Supreme Court ruled in favor of the PLWA in 2014.

The Anaconda Sportsman’s Club is also not afraid to enter the legal fray when sportsmen’s access and privileges are threatened.

In his brief, ASC attorney Peter Meloy called Fox out for devoting half of his opinion on arguing that a conservation easement counts as a “land acquisition.” Meloy pointed out that the law defines “acquisition” as the transfer of property ownership whereas an “easement” is the right to use someone else’s property.

“If the Legislature wants to subject acquisition of conservation easements to (land board) approval, it should do so, but it is not the role of this Court to mandate such an approval in the absence of a statutory directive,” Meloy wrote.

Depending on the Supreme Court’s decision, it’s likely a lawmaker could propose such a bill when the Montana Legislature meets this winter.

On Monday, the Land Board was back doing its usual duties of considering FWP land purchases. It approved a $470,000 purchase of land to be added to the Canyon Creek Wildlife Management Area near Helena and the purchase of a $550,000 inholding in the Dome Mountain WMA north of Yellowstone National Park.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.