Montana governor sues attorney general over land authority

October 22, 2018 GMT

HELENA, Mont. (AP) — Montana Gov. Steve Bullock sued the state’s attorney general Monday over whether his administration has the authority to unilaterally approve conservation easements without going through the state Land Board.

The Democratic governor’s petition to the Montana Supreme Court seeks to clarify the governor’s and state agencies’ powers amid a dispute over a $6.1 million conservation easement in eastern Montana that Bullock’s Fish, Wildlife and Parks department finalized earlier this year without approval by the state Land Board.


Conservation easements protect private land from development in exchange for cash and without ownership of the land changing hands.

The Land Board, which Bullock and Attorney General Tim Fox are both members of, along with three other Republican statewide officials, directs the sale and purchase of state trust lands with timber, surface and mineral resources for the benefit of schools.

Fox wrote in a legal opinion this month that Bullock ignored state law by finalizing the easement on the 23-square-mile (60-square-kilometer) Horse Creek property near Wibaux. Bullock approved the deal despite the Land Board’s earlier vote to delay action indefinitely on Horse Creek after the owners of the mineral rights below the land complained that an easement would hinder them from drilling for oil and gas.

Bullock and Fox both voted against the delay, but it passed with yes votes from State Auditor Matt Rosendale, Secretary of State Corey Stapleton and Superintendent of Public Instruction Elsie Arntzen.

The Land Board must approve all conservation easements that are larger than 100 acres (40 hectares) or worth more than $100,000, Fox concluded in his opinion.

An attorney general’s opinion is binding unless a judge overturns it, prompting Bullock to file his lawsuit.

Fox was wrong in concluding that a conservation easement is a land acquisition that must be approved by the Land Board, Bullock chief legal counsel Raphael Graybill wrote in the petition. It’s been common practice until now to seek Land Board approval for conservation easements, but state law does not require it, he wrote.

“No land is acquired in a conservation easement transaction,” Graybill wrote in the petition. “The landowner continues to own her land in fee, occupy it and pay taxes on it.”

Three conservation easement purchases that have been approved by the state Fish and Wildlife Commission are in limbo because of Fox’s opinion, and those deals must be completed by the end of the year, Graybill wrote.


Fox wrote in his opinion that the state legislators who wrote the law on land acquisitions intended for easements to be included in the definition.

“Gov. Bullock should be working with his fellow Land Board members instead of wasting taxpayer dollars by suing the state of Montana to overturn 37 years of legal precedent,” Fox spokesman John Barnes said Monday.