Politics wrongly threatens conservation program

Jim Goetz
Bozeman attorney
Thursday, December 6, 2018

Guest Commentary

In 1987 the Montana Legislature directed Montana Department of Fish, Wildlife and Parks to establish a statewide wildlife habitat system to better conserve “our wildlife resources and pass them intact to future generations.” This program, called “Habitat Montana,” turned out to be one of the most successful conservation and public access programs in the West. A recent opinion by Montana Attorney General Tim Fox, however, places the power to approve all conservation easements funded by the program in the hands of the Land Board. This oversight by an obstructionist Land Board interferes with FWP’s management of Habitat Montana and threatens the long-term sustainability of the program.

The money for the program comes from a small fee on hunting licenses (92 percent of the funding comes from nonresident hunting license fees). While FWP can purchase some land outright, FWP can also obtain conservation easements from willing landowners. The beauty of the conservation easement approach is that private landowners continue to own their land while the easements protect habitat and ensure recreational access. As of December 2016, FWP held 43 Habitat Montana wildlife conservation easements covering 240,452 acres.

Many federal agencies, private companies and conservation organizations have partnered with FWP to use Habitat Montana to protect tracts of important habitat, including the Nature Conservancy, Rocky Mountain Elk Foundation, Trout Unlimited, Flathead Tribes, U.S. Forest Service, BLM, Montana Wildlife Federation, Northwestern Energy, and PPLMontana.

Conservation easements are also essential to farmers and ranchers. The funding for a conservation easement is a strong tool to protect open space and help keep family ranches intact. By entering into voluntary agreements with FWP, agricultural producers can pay off debt, expand their operations, and address a host of other financial needs. These Habitat Montana conservation easements provide families a vital asset to secure their financial future.

In the past, most, but not all, of the FWP easements were routinely submitted to the Land Board for approval, although it is questionable whether this is a legal requirement. As long as the Land Board deferred to FWP’s expertise, no one ever raised the question whether taking these projects before the Land Board was founded on custom or law.

Since the 2016 election, however, the composition of the Land Board has changed—and so has its attitude toward conservation easements. After years of deference to FWP, the Land Board (consisting of five statewide elective officers including the governor and attorney general) began rejecting or delaying Habitat Montana conservation easements. Currently, FWP has over a dozen easements in the works, several of which need to close by the end of the year. Three have received final approval by FWP. Just these three easements alone will protect over 18,000 acres of land and will provide public access to them.

A technical legal question has arisen as to whether the Land Board’s approval is required for implementing a conservation easement. Montana law requires Land Board approval for “land acquisitions” of a certain size. The attorney general has prepared an opinion arguing that conservation easements must receive Land Board approval—Gov. Bullock disagrees because the placement of a negative easement does not amount to land acquisition. Gov. Bullock has brought this issue to the Montana Supreme Court, which scheduled argument for Dec. 5, 2018.

While the legal issue presented is narrow, the impact of this decision will make a difference in the lives of sportsmen and other outdoor recreationists across Montana for years to come. The viability and continued success of the Habitat Montana program is at stake. Habitat Montana has been used by FWP for over three decades to put together land deals that benefit landowners and provide public access to both public and private land for every Montanan.

The opposition of four members of the Land Board to FWP’s conservation easement program is puzzling. This program is critical to keeping agricultural land in the hands of Montana families with the added benefit of being an invaluable public access tool. The program is a win-win for everybody because it protects open spaces and recreation and habitat values, while keeping lands in private, economically productive ownership. With this vital conservation program threatened by politics, it is the public who stands to pay the price through loss of that wildlife habitat—and the loss of access to thousands of acres of lands.

Jim Goetz, Bozeman attorney, drafted the original Montana conservation easement legislation in the early 1970s at the request of a group of Blackfoot River ranchers. Paul Burdett is the in-house attorney for the Public Land/Water Access Association (PLWA). Goetz and Burdett recently filed an amicus brief with the Montana Supreme Court for the PLWA supporting the governor’s petition.

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