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Fox says Bullock ignored the law when approving $6M easement

Posted at 8:03 AM, Oct 17, 2018
and last updated 2018-10-17 10:05:18-04

HELENA – Montana Attorney General Tim Fox ruled Monday that Gov. Steve Bullock ignored state law this summer when his administration finalized a $6 million conservation easement without approval from the state Land Board.

The easement, financed with federal money and state fish-and-game funds, provides walk-in access for hunters and other recreation on a 15,000-acre private ranch near Glendive.

State fish-and-game officials negotiated the easement with the Stenson family, which owns the ranch and received the money.

The state Land Board, composed of the five top statewide elected officials — including Fox and Bullock — voted 3-2 in February to delay action on the easement.

But Bullock decided to go ahead with the transaction and the state closed on the deal in June. He argued that it didn’t need Land Board approval because it wasn’t a direct acquisition of land.

Senate President Scott Sales (R-Bozeman) then asked Fox for a formal opinion on whether Bullock followed the law.

Fox said his office’s review determined that using state money to purchase an easement is the equivalent of the state buying an “interest in land,” and that state law requires Land Board approval of any “land acquisition” involving more than 100 acres or $100,000 of value.

Therefore, the Horse Creek easement should not have occurred without approval from the Land Board, Fox said.

“It’s pretty clear from reviewing the statutes that the governor is not allowed to have (the Department of Fish, Wildlife and Parks) close these conservation easements,” Fox told MTN News Monday.

Bullock, however, disagreed.

“It’s disappointing Attorney General Fox is doubling down on an incorrect proposition of law, one that will destabilize the conservation-easement process and create more uncertainty for families and landowners who want to do right by the public and make their land open to access,” said Bullock spokeswoman Ronja Abel.

Fox’s formal decision carries the force of law unless it’s overturned by a court or the Legislature. However, he told MTN News that his ruling doesn’t undo the transaction in the Horse Creek easement.

“But going forward, we have to return to what has been a 37-year legal process of getting Land Board approval for these conservation easements,” he said, referring to the 1981 law that required such approval for land purchases.

Fox also noted that he voted for the easement and has supported all easements that have come before the Land Board during his time as attorney general. Fox and Bullock voted against delaying the Horse Creek easement in February.

State Auditor Matt Rosendale, Secretary of State Corey Stapleton, and Superintendent of Public Instruction Elsie Arntzen, all Republicans, voted to delay it.

“I visited with the governor (after the vote) and encouraged him to exercise his considerable authority and persuasiveness that he has to work with the Land Board members, to answer their questions … and to get Horse Creek back on the agenda,” Fox said. “He instead just unilaterally decided that the law overnight has changed, and which it really hasn’t.”

-Mike Dennison reporting for MTN News