Whitefish’s Thanksgiving Turkey

By Beacon Staff

When is an easement keeping 1,500 acres of state trust lands west of Whitefish “open and undeveloped for all generations to come” not a conservation easement? When it’s a Beaver Lakes Area Deed of Public Recreation Use Easement, of course!

Prior to 2001, Montana Code Annotated (MCA) said nothing for or against conservation easements on state trust lands, even though the Land Board had previously allowed a handful.

In 2001, per request of the Montana Department of Natural Resources and Conservation (DRNC), Sen. Lorents Grosfield (R-Big Timber) sponsored SB 159, a narrowly targeted bill amending MCA 77-2-101 (governing “easements for specific uses”) to allow the sale or lease of “conservation purposes” easements to Montana Fish, Wildlife and Parks.

According to “Trust Lands in the American West,” a 2005 Sonoran Institute analysis by Peter Culp, Diane Conradi and Cynthia Tuell, Grosfield’s amendment “limited” Montana’s Land Board “in its authority to grant easements for conservation purposes. Only the Department of Fish Wildlife and Parks (DFWP) and two specified nonprofits may hold a conservation easement over trust lands.”

However, the Whitefish School Trust Lands Neighborhood Plan (WSTLNP, prepared by consultant Marty Zeller in 2004) contains no specific discussion of 77-2-101, only general passages such as “DNRC, if allowed in the future, could sell conservation easements in certain limited cases to public entities or qualified nonprofit groups.”

Minutes from the November 2004 Land Board hearing approving WSTLNP show Attorney General Mike McGrath specifically asked DNRC’s Tom Schultz about the legality of implementing conservation easements as part of WSTLNP. Schultz replied, “Right now our ability to do conservation in legislation is very limited.” McGrath then declared “a need to address the conservation easement statute system.”

So, newly elected Whitefish legislators Sen. Dan Weinberg and Rep. Mike Jopek attempted to “address” MCA 77-2-101 in both the 2005 and 2007 sessions by deleting the limiting clauses. Both tries failed.

Critically, as Weinberg’s last bill died late in the 2007 session, Jopek succeeded in passing a resolution only two days before adjournment. Jopek’s HJ 57 tasked the interim Environmental Quality Council (EQC) committee with studying “conservation easements on state trust lands” and preparing a report for the 2009 Legislature.

As part of that study, EQC members (including public member Diane Conradi) tasked attorney Todd Everts with analyzing existing Land Board authority to grant conservation easements.

Everts cited 77-2-101’s limitations on conservation easements. Then, after determining it “noteworthy that an easement for ‘conservation purposes’ is not defined within the trust land administration statutes,” Everts moved on to Montana’s Conservation Easement Act (MCA 76-6-104), which defines a conservation easement as a restriction of “rights to construct improvements upon the land or to substantially alter the natural character of the land.”

The Beaver/Skyles easement deed certainly restricts development like a conservation easement. A tiny sample: “Right to Restrict Development. Grantee has the right to enforce residential and commercial development restrictions within or on the Easement Area.”
But Everts hit the legal jackpot: He determined the Land Board has the power to grant easements for “other public uses” under another section of 77-2-101.

These “other public uses” are neither specifically defined in trust land law, nor limited to those public uses enumerated in Montana eminent domain statutes.

In short, the intent of Montana law is obvious. But Everts found equally obvious gaps in the letter of the law. Therefore, under the letter of Montana law, if a conservation easement on state trust lands is called anything else, it’s legal.
That’s why the Whitefish Trail folks are calling their 1,500-acre turkey a goose, and the Land Board is certain to agree.

Presciently, the EQC also asked Everts if Montana trust beneficiaries could sue to terminate the disposition of a property interest granted by the Land Board. Yes, Everts concluded, but if the Land Board and DNRC get “full market value for the disposition,” then “success on the merits is unlikely given that the Montana Supreme Court held that the Board and the DNRC have large discretionary power in managing state lands.”

Will the beneficiaries get full market value? Maybe I’ll be able to write about that next time.

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