MTPR

Montana Court Overrules Attorney General On Easements

Dec 11, 2018

HELENA, Mont. (AP) — The Montana Supreme Court on Tuesday overruled Attorney General Tim Fox's legal opinion that the governor can't unilaterally approve large conservation easements and they must instead be authorized by the state Land Board.

Six of the seven justices on the state's high court signed the order siding with Gov. Steve Bullock, who argued that he doesn't need the Land Board's approval because conservation easements aren't land acquisitions. Justice Laurie McKinnon is the only justice who didn't sign.

The order was published without an explanation of the court's reasoning. A full opinion will be issued "in due course," Chief Justice Mike McGrath wrote.

The decision comes in a dispute over a $6.1 million conservation easement in eastern Montana that Bullock approved earlier this year after the Land Board indefinitely delayed action on the proposal. The Democratic governor's sidestepping of the Land Board prompted the Republican attorney general to write a legal opinion that the board must approve all conservation easements that are larger than 100 acres (40 hectares) or worth more than $100,000.

Conservation easements protect private land from development in exchange for cash and without ownership of the land changing hands. The Land Board directs the sale and purchase of state trust lands with timber, surface and mineral resources for the benefit of schools.

Bullock and Fox are both members of the board, along with three other Republican statewide officials.

An attorney general's opinion is legally binding unless a court overrules it. Bullock petitioned the Supreme Court to do just that, with his attorney arguing that no land is actually acquired in a conservation easement transaction, so the deal is outside the scope of the Land Board's authority.

It had been common practice until now to seek Land Board approval for conservation easements, but state law does not require it, Bullock attorney Raphael Graybill argued to the court.

"The truth is, this case never had to happen," Bullock said in a statement. "We were only in the position of needing a court decision because the Attorney General chose personal ambition and party politics over Montana ranchers, hunters, and anglers."

Fox spokesman John Barnes said his office had no comment at this time.

The disputed easement is on 23 square miles (60 square kilometers) of land near Wibaux. The Land Board voted earlier this year to delay action indefinitely on the easement after the owners of the mineral rights below the land complained an easement would hinder them from drilling for oil and gas.