State land watchdogs sue over new land exchange rule
Laura Lundquist
(Missoula Current) Hunters, anglers and public land watchdogs are suing the Montana Land Board for not providing enough notice or opportunity to comment before passing a rule to streamline state land swaps.
Last Wednesday, three Montana organizations filed a complaint in Lewis and Clark County district court taking the Montana Land Board to task for its May 18 decision to change a Department of Natural Resources and Conservation rule regarding state land exchanges. The plaintiffs - Montana Wildlife Federation, Public Land and Waters Access Association, Inc., and Montana Sportsmen Alliance - say little was normal about the way the proposed rule was rushed through the process.
“Plaintiffs do not challenge Defendants’ authority to consider lawful updates to
land-exchange policy. Plaintiffs challenge Defendants’ decision to adopt a statewide
policy overhaul without adequate notice, meaningful public participation, and required
rulemaking procedures,” according to the complaint.
Less than a week before the May 18 Land Board meeting, State Auditor James Brown proposed a change to the way the DNRC conducts exchanges of state land for private land. It was an unusual move, because normally the DNRC, not land board members, is responsible for proposing changes. Brown’s proposal would allow landowners to hire consultants to broker land exchanges, taking much of the evaluation process out of the DNRC’s hands. Some sportsmen said this makes the process unfair because only rich landowners can afford to hire consultants.
In addition, the DNRC would be required to discount the value of landlocked state lands that are inaccessible. Brown said this would encourage the elimination of landlocked parcels, but plaintiffs say it robs the state and the school trust of some money.
“Allowing state lands currently providing access to either adjacent public lands or public waters to be traded for parcels providing less access is unacceptable to a majority of Montanans. While well-intentioned land swaps are appropriate, this sort of business smacks of cronyism, smoke and mirrors and rewarding wealthy landowners at the expense of our citizens,” said Jeff Herbert of the Montana Sportsmen Alliance.
The plaintiffs also say that, in addition to the proposal’s short notice, the proposed rule was published in a way that made it difficult for the public to know what changes had been made to the old rule.
Then, during the Land Board meeting, Governor Greg Gianforte made a motion to put the proposal out for a 30-day comment period. But the motion failed. The Board took minimal public comment during the meeting and voted 3-1 to pass the proposal, with Secretary of State Christi Jacobsen voting no and Gianforte abstaining.
“Plaintiffs allege that the Governor’s motion and abstention are evidence that at least one Board member recognized the inadequacy of the public process and the need for a longer public comment period before final action,” the plaintiffs said in their complaint.
The complaint alleges that the Land Board violated two rights of the Montana Constitution: the right to know and the right to participate. The late notice of the change violated the public’s right to know, and then the Board allowed the public insufficient opportunity to comment on the change before the Board approved it.
Along those lines, the Land Board also violated the Montana Administrative Policy Act, which requires an agency to provide at least 20 days’ notice of a hearing regarding rule adoptions and provide at least 28 from the date of notification for public arguments or data.
Finally, the state lands are a public trust and the Constitution requires the Land Board to manage them in the best interests of the people. The plaintiffs question whether land swaps enabled by the new rule would be in the best interests of anyone other than the landowners and consultants involved.
“Some of Plaintiffs’ members raised concerns about provisions encouraging applicants to hire independent consultants to help review and facilitate exchanges, including the concern that such a process could become oriented toward closing deals rather than protecting the public interest,” according to the complaint.
The plaintiffs are asking the judge to put a hold on any new land swaps until the Land Board provides sufficient opportunity for public comment or until the lawsuit is decided.
“Montana’s public and sportsmen get little opportunity for public comment. The Land Board, (Fish and Wildlife) commission and the state government in general have done all they can to minimize public involvement and ignore transparency. They ignore our input in the rush to service billionaire buddies. Slimy lobbyists and dark money organizations are being allowed to write (policy) to pad their own pockets. Our trained agency folks are not allowed to participate and do their jobs in deference to politics,” said Joe Perry of Montana Sportsmen Alliance. “I think folks are fed up and ready to hold lobbyists, dark money, and politicians accountable.”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.