Bullock vs. Fox: State Supreme Court hears arguments in conservation easement case

The Horse Creek conservation easement cost $6.15 million and was funded through a combination of Habitat Montana hunter license fee dollars, as well as federal Natural Resources Conservation Service funds. (Montana Wildlife Federation)

The Montana Supreme Court is deciding whether the state land board has the legal right to reject proposed conservation easements, and the ruling could change the way Montana Fish, Wildlife & Parks does business.

On Wednesday in Helena, Supreme Court justices heard arguments from attorneys for Gov. Steve Bullock and Attorney General Tim Fox on whether FWP can buy larger conservation easements without first seeking approval from the state land board.

The case hinges on what the Legislature intended when it passed laws dealing with land acquisition. But it’s also a matter of who has ultimate authority under the state Constitution.

“This is not a case about an agency’s prior practices, nor is it a case about whose interests are better served by any particular reading of the law. It’s a case about what the words mean, about what the law says,” said Bullock attorney Raphael Graybill.

In the past, once the FWP Commission approved buying an easement for wildlife and hunter access, the land board would hear and endorse the easement. But that changed this spring, when the land board, for the first time, tabled the proposed $6.15 million Horse Creek easement.

Bullock then approved the easement on his own authority, prompting a Republican legislator to ask Fox for an opinion regarding Bullock’s action.

In his Oct. 15 memo, Fox said the land board has the authority to reject any easement of more than 100 acres or which costs more than $100,000, because the law puts those limits on “land acquisitions.” Fox said that includes conservation easements.

Fox’s attorney, Robert Cameron, argued the attorney general could impose that requirement because the term “land acquisition” is ambiguous in the law governing the land board. Cameron added that the wording throughout the law is not “a model of clarity.”

For that reason, Cameron said, the court needs to consider the historic procedure. He argued that FWP has always presented easements to the land board and there’d be no reason to do that if the land board didn’t have authority.

Graybill countered, saying FWP didn’t bring easements to the land board until the mid-1990s, so the court shouldn’t consider that the rule.

“Custom and practice can never ripen into statute,” Graybill said.

Graybill pointed out that Cameron hadn’t brought up the question of ambiguity until the hearing. In fact, Graybill argued, Fox’s own opinion nullified any claim of ambiguity when he said it was clear that “land acquisition” and “interest in land” – in this case, conservation easements – are the same.

But they aren’t, Graybill said. An “interest in land” could include a situation where landowner A has an agreement for another landowner B to keep his trees shorter than 20 feet. Landowner A has an interest in the land of B, but hasn’t acquired the land.

“Does the term land acquisition require the acquisition of land? By following simple well established rules of construction, there is only a single supportable answer: Yes, it does. And a conservation easement is not land,” Graybill said.

Several of the justices’ questions indicated that the thrust of the case was clear and that they agreed with some of Graybill’s arguments.

Justice Dirk Sandefur startled the other judges by asking a direct question related to motive.

“This is a simple legal case that’s pretty straightforward and we’ll decide it on those grounds. But what’s going on here? Why are the governor and the attorney general fighting over the interpretation of these statutes? What’s the larger game in play here?” Sandefur said.

Graybill said the heart of the case was whether FWP is allowed to run the Habitat Montana program. A portion of sportsmen’s license fees is allocated to Habitat Montana to allow FWP to buy land and conservation easements.

“This court’s decision will have real-world effects. Tied up in that are dozens of families that rely on this program and hundreds or thousands of hunters and anglers who rely on the public access this program provides,” Graybill said.

Chief Justice Mike McGrath said it was really about which executive officer has the authority to oversee FWP. He questioned Cameron’s argument about ambiguity in the law.

“Let’s assume for a minute that the statute is ambiguous – which seems to me to be the bulk of your argument – don’t we have to begin our analysis and bottom the decision based on provisions of the Montana Constitution that seem to be quite specific in terms of executive power?” McGrath said.

“What it leaves us with is the Constitution says the executive power is invested in the governor. Period.”

The seven justices have taken the case under advisement, knowing at least three landowners are under time pressure.

One of the three easements that could be affected had a Nov. 30 deadline; however the landowner got an extension. Another landowner is battling foreclosure.

So the court could release a ruling within a few weeks.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.