Tuesday, February 27, 2018

Land Board delay raises questions about conservation easements as a public access tool

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Land Board delay raises questions about conservation easements as a public access tool

Finding a place to hunt on the two-thirds of Montana that is privately owned can be a tricky proposition.
Whether they are a result of changing demographics, financial reasons or convenience, stories of once accessible private property being shut off recur each year. While a landowner’s right to control access remains fundamental, hunters have increasingly cited the need for access as one of the biggest threats to the future of hunting in Montana.
One of the programs the state uses to push for public access is Habitat Montana, housed under Montana Fish, Wildlife & Parks. The program is simple on its face: a portion of hunting and fishing license sales goes into an account, and FWP uses it to acquire access.

But for more than 25 years Habitat Montana, with funding going to both land purchases and conservation easements on private property, has had its critics.
“Habitat Montana has been very well intended, very well conceived and been sternly if not unanimously supported by hunters and folks who want access,” said Glenn Marx, executive director of the Montana Association of Land Trusts. “But it has also always been at some level of controversy as it’s been implemented by the department, because it allows more government management to a degree on private land. There has always been a segment of the Montana Legislature and the Montana population who has concerns about more government in more places in more ways.”
The primary criticism of Habitat Montana centers on land purchases. FWP’s acquisition of entire ranches has met resistance to growing the state’s estate. In 2015 lawmakers took away FWP’s authority to purchase more land, restricting the account to private land easements. The purchase authority was restored last year but came with a continued legislative preference for easements.
Conservation easements are a contract between a private landowner and entities such as land trusts or government agencies. Easements come in many shapes and sizes, but typically landowners agree to limit development. In exchange, landowners may receive payment and tax incentives -- the incentives a result of depreciating the value of the property by agreeing not to subdivide. Easements may contain other provisions for public access or habitat conservation, and are often touted as a means of keeping land in agriculture.
State Board of Land Commissioners
Following unanimous approval by the Montana Fish and Wildlife Commission, last week’s split-vote by the Montana State Board of Land Commissioners to indefinitely delay a decision on an eastern Montana conservation easement has raised questions about the coexistence of oil and gas development with habitat, hunting and agriculture.
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Montana State Land Board
Current members of the Montana State Land Board include, from left, Secretary of State Corey Stapleton, Attorney General Tim Fox, Governor Steve Bullock, Superintendent of Public Instruction Elsie Arntzen and State Auditor Matt Rosendale.
The Horse Creek Conservation Easement near Glendive came before the Land Board after a year and a half of negotiations between the Stenson family and FWP. The Stensons agreed to allow walk-in public access, implement a wildlife-friendly grazing plan and limit development on about 15,000 acres. The cost of the easement is $6.1 million, with roughly $4.3 million of that from Habitat Montana.
The easement has become embroiled in a property rights debate after the owners of the mineral rights came forward with concerns that the easement will hinder oil and gas development. Both before the Montana Fish and Wildlife Commission and the Land Board, the mineral right holders testified that habitat protections cannot be legally guaranteed if mineral development takes place -- a stance challenged by both conservation groups and the oil and gas industry -- and that the $6.1 million price tag is too high.
FWP has defended the process and the independent appraisal that came with it. As the owners of only the surface rights, the Stensons have no legal authority to stop mineral development -- a legal principle stated several times in two public hearings and one that went without a formal challenge from either the attorney representing the mineral right holders or the Montana Petroleum Association. For their part, the Stensons say it is their private property rights, specifically the right to contract their surface rights, that are being tread upon.
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Ranch land in the proposed Horse Creek conservation easement near Glendive, Mont.
Ranch land in the proposed Horse Creek conservation easement near Glendive.
Citing a desire for more time to consider the proposal, Republicans Superintendent of Public Instruction Elsie Arntzen and State Auditor Matt Rosendale agreed with Secretary of State Corey Stapleton to indefinitely delay a vote. Stapleton stated his leeriness for contracts that go into perpetuity, and Rosendale said the five-day period between the Fish and Wildlife Commission and Land Board was too short for a full vetting.
Democratic Gov. Steve Bullock and Republican Attorney General Tim Fox dissented, with both stating that the commission had enough information to move forward.
What will the future bring?
With no specific date to reconsider the easement and the Stensons needing an answer due to a land purchase hanging in the balance, project supporters wonder about not only the viability of Horse Creek, but the future of Habitat Montana as an access program.
“By the time it makes it to the Land Board, it’s already been through an incredibly rigorous review, so I feel like this is really unprecedented,” said Nick Gevock, conservation director for the Montana Wildlife Federation.
Gevock says he takes the commissioners who wanted more time at their word but believes delaying a decision is concerning.
“Why would a landowner go through two years of rigorous review laid out in a popular program only to have it rejected?” Gevock asked. “It could have a very chilling effect on land conservation efforts, and I think if we start turning down easements that’ve been in the works for two years, that effectively kills Habitat Montana.”
FWP Director Martha Williams is also worried about setting a precedent if a high-profile easement such as Horse Creek falls through due to delay or is voted down.
“I worry about a landowner that has to navigate this very public process and I hope we can come out with some clarity, because these can take years to come together,” she said.
Fish and Wildlife Commission Chairman Dan Vermillion has concerns as well about the message to conservation-minded landowners and access proponents. While many organizations offer conservation easements, state-held easements typically come with a public access component.
“We spend so much time as a state talking about our hunting and fishing heritage, and we know there are certain parts where there isn’t a ton of public land, so we need to create access,” he said. “If a political leader is a strong believer in hunting and fishing, and almost all say they are, I have to ask, ‘How do you hunt or fish if you don’t have a place to hunt or fish?’”
Vermillion is familiar with the resistance to land purchases, but questions the debate over Horse Creek considering easements’ largely noncontroversial history.
“We’ve gone through this process and the department has worked really hard with some great landowners, and everyone knows this conservation easement has zero impact on the mineral rights,” he said. “So to hold this easement up on mineral rights when we’re only talking about surface rights, it’s mystifying to me.”
Regardless of how the Land Board proceeds on Horse Creek, Marx believes that private land conservation organizations and easements remain on solid footing.
He sees Horse Creek in navigating the public process as more complicated than most easements and this Land Board appears to be taking a harder look at proposals coming before it than past boards. Requests for more time and information may require an adjustment with scheduling between the Fish and Wildlife Commission and when projects come before the Land Board, he said.
“Habitat Montana was created to accomplish a goal, and this project fits extremely well within that goal,” he said. “I think the Stensons seem to be good neighbors, good stewards of the land and committed to agriculture. They want to find ways to make their agricultural operation sustainable in the short and long term, and I admire them for doing that. They approached all this with a really good faith effort and deserve an answer as soon as possible.”
Reporter Tom Kuglin can be reached at 447-4076 @IR_TomKuglin

Monday, February 26, 2018

MSA ALERT: All hands on deck! Horse Creek CE delayed or tabled by Land Board


Thursday, February 22, 2018

Land Board delays action on conservation easement embroiled in property rights debate

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Montana State Land Board

Land Board delays action on conservation easement embroiled in property rights debate


On a split vote Tuesday, the Montana State Board of Land Commissioners indefinitely postponed a decision on an eastern Montana conservation easement that has sparked debate about private property rights and the coexistence of oil and gas development with agriculture and hunting.
The governor-appointed Montana Fish and Wildlife Commission last week unanimously approved the 15,000-acre Horse Creek Conservation Easement between the Stenson family and Montana Fish, Wildlife & Parks, which put a final decision before the Land Board Tuesday. The Land Board is made up of Democratic Gov. Steve Bullock, and Republicans Secretary of State Corey Stapleton, State Auditor Matt Rosendale, Superintendent of Public Instruction Elsie Arntzen and Attorney General Tim Fox.
Citing a desire for more time, Stapleton, Rosendale and Arntzen voted to indefinitely postpone a vote, with Bullock and Fox opposed.
The proposed $6.1 million easement is funded by both federal and state dollars. About $4.3 million would come from the Habitat Montana program funded by hunting and fishing license revenue. Under the terms, the Stensons would provide walk-in public access and manage for wildlife habitat and agriculture while foregoing subdivision.
While the Stensons own surface rights to their ranch, they do not own the mineral rights. The easement has recently come under scrutiny over concerns from mineral right owners Hodges Ranch LP that oil and gas companies will shy away from property under easement. Lilia Tyrrell, an attorney representing the mineral interests, also argued last week and Tuesday that the terms of the conservation easement cannot be guaranteed if oil and gas development proceeds.
“Everyone in this room can value the need for conservation easements in this region. … A vote today is not a vote against those principles, it is a vote for fiscal responsibility,” she told the Land Board. “You’re not getting what you think you’re paying for.”
While her clients are “not looking to clearcut land or devastate wildlife habitat,” legal decisions have granted mineral development rights that can significantly impact the surface, Tyrell said. She closed by further criticizing the $6.1 million cost, which she believed did not accurately reflect the value of a property with split surface and mineral rights.
Adele Stenson called the easement a “collaborative effort” and said “this project should not be the battle, it should be celebrated.” While the family wants a place at the table if mineral development does proceed, she says her family has no interest in standing in the way of Hodges’ rights.
“We remain very confident that this easement harms nobody and provides a lot of benefits for a lot of people,” she continued. Giving the mineral right owners a say in the conservation easement treads on her family’s surface property rights, and “if they wanted to keep the surface rights they shouldn’t have sold us the land.”
A denial or delay of the easement could put the purchase of five sections of land they currently lease in jeopardy, Adele Stenson said, which is land they need to keep the ranch economically viable.
The easement fulfills a need for securing public access in predominately privately owned southeastern Montana, FWP Director Martha Williams told the board. Her agency followed procedures laid out in Montana law and language of the easement mirrors that of other easements held by FWP, including those that have seen oil and gas development.
Following last week’s meeting, the actual potential of mineral exploration remained under dispute Tuesday. Tyrrell cited interest in oil and gas exploration in the region, while FWP determined a low probability based on dry and low producing wells in the area.
Hunting and conservation groups, as well as the Montana Association of Land Trusts, testified in support of the easement.
Land conservation attorney Andrew Dana testified that conservation easements with split surface and mineral rights are not uncommon, and said there are dozens of wells currently producing on land under easement.
Montana Petroleum Association Executive Director Alan Olson said his organization came into the issue only recently.
“So that it’s very clear to everybody, our members are supportive of conservation easements and in this case, the access it brings for hunting opportunities,” he said. “We’re also supportive of the landowner’s rights to pursue conservation easements.”
Olson said he was contacted about a week ago by the mineral right owners, and believes there needs to be a meaningful discussion to ensure that all have a seat at the table. Olson went on to note that the easement puts FWP at the table if mineral exploration were to occur, and expressed concerns that FWP has “protested” oil and gas on state and federal lands.
Under questioning from Bullock, Olson said he believes FWP should make greater efforts to locate and include mineral right owners in the easement, a process that Williams testified could cost up to $1,000 per acre. Objections from the Hodges came in relatively late in the process, she said.
During commissioner questioning, Fox explained his background in geology and mineral law, and said he agreed that oil and gas development is not incompatible with a conservation easement.
“When you sell the surface you lose control of the interest … it’s not a harsh reality, it’s just a reality,” he said, going on to say he does not believe the easement puts mineral development at risk.
Arntzen was the first to ask for a delay, saying she believed access is important, but she needed more information “to understand the rights below the ground as above the ground.”
Stapleton agreed to the delay, saying he felt it is poor public policy to enter agreements that go into perpetuity.
“Forever is a long time,” he said, noting other entities involved.
Rosendale said the easement was more complex than most, calling it a “disservice” to have a five-day period between the fish and wildlife commission’s decision and the Land Board's.
Bullock asked what more could be learned if the project were delayed against what is at risk if the easement falls through.
“A delay could mean killing this opportunity to have hunting here in perpetuity," he said.
Fox agreed, saying “There’s nothing left to learn in delaying anything here,” and went on to respond to Stapleton, saying “if you’re spending this kind of money for this kind of conservation easement, you’d better get it in perpetuity.”
Tyrrell declined to comment.
Adele Stenson issued a statement following the meeting.
“To say we are frustrated and disheartened by this delay would be a huge understatement,” she said.
“We have worked alongside FWP for the past year and a half to follow every step this process requires. Yet, three members of the Land Board have chosen to delay this decision so they can get more information on a project that meets every parameter required for a Habitat Montana easement, including overwhelming support from the sportsmen and women whose dollars pay for the bulk of this easement. We and FWP have done everything possible to communicate with the board members and their staff to provide them information, and we will continue to do so over the next month. We just hope that the Land Board will take this extra time to objectively judge this easement based on its merits and see the tremendous value it has for the hunters and other outdoor enthusiasts of Montana.”

Saturday, February 17, 2018

Keeping a way of Life: Land Near Glendive Could Get Permanent Protection, Public Access


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15,000 ACRES SLATED FOR CONSERVATION EASEMENT

By Justin Schaaf
Take a hike with me if you will.
It is springtime in Eastern Montana, we are within eyesight of one of Montana’s greatest hidden treasures, Makoshika State Park.
Kip Stenson, the landowner, points us to an area across the Horse Creek bottom to begin our hike. We begin hiking from a homestead that looks as though it has sat vacant for the last fifty years. The house and outbuildings that sit on land now managed by the Bureau of Land Management tell a stark tale. A tale about a family that had invested everything and was unable to make the finances work and ultimately decided it was better to walk away from it all.
Horse Creek Easement, Kip Stenson, Conservation Easement, Dawson County, Wibaux County, Montana, FWP, Land Board
Landowner Kip Stenson and the author check out a mao of the Horse Creek Easement. Photo by Hayden Clark.
It isn’t long until we begin to climb in elevation as we walk through badlands from the Hell Creek Formation, riddled with sandstone hoodoos, dinosaur fossils, and other formations that could only be described by seeing with your own eyes. Our sights are set on a juniper- and cedar-crested butte on the horizon where we plan on taking a break and eating lunch.
On top of the butte we sit down under the shade of a mature cedar tree. To the north of the butte you notice the landscape transition from the rough badlands to rolling ash-timbered draws. On closer inspection you see mule deer, whitetail deer, sharptail grouse and even turkeys. As we turn our attention to the south we stop for a moment and notice a Mule Deer buck stand up out of his bed on the adjacent butte. After 10 seconds of studying, the old buck takes four bounds and disappears over the butte never to be seen again.
With our attention on the southern end of the parcel we see the landscape transition once again from the badlands down to a plateau of vast sagebrush fields. We notice a large herd of antelope in the middle of the largest field ready to stretch their legs if anything were to disturb their grazing. There has been one commonality across all the different landscapes that is impossible to overlook, this is first and foremost a cattle ranch. This is a ranch that has figured out how to make all these moving parts coincide with each other. 

A GIFT TO THE FUTURE
Kip and Adele Stenson first approached Montana Fish Wildlife & Parks about the possibility of an easement on their land several years ago.
“We sat down and talked about what it might look like in the end,” Kip recalled.
Horse Creek Easement, Kip Stenson, Conservation Easement, Dawson County, Wibaux County, Montana, FWP, Land Board
Photo courtesy Kip and Adele Stenson
The department immediately noted the value that these thriving landscapes provided both the wildlife and people in Dawson and Wibaux Counties.
“An easement of this size can stand on its own and provide habitat and security for generations to come,” says Melissa Foster, an FWP wildlife biologist based out of Baker.
The Stensons view the easement as a guarantee into the future for local family ranching out of Eastern Montana, a departure from the trend of cattle ranching growing larger and larger while pushing local families out.
“I hope that someday my grandchildren are able to drive down the hill to our ranch and see that this land is still providing the same benefits now that it was when their grandparents were ranching it,” says Adele.
The Horse Creek easement would be funded by Habitat Montana, a program that collects funding from hunting and fishing license purchases, earmarked specifically for conservation easements; and by the U.S.Department of Agriculture.
“Considering how much hunters and fishermen contribute to conservation, I am glad they will be able to enjoy the easement for years to come,” Kip says, referring to the easement’s public access guarantee.
When the easement is completed hunters will have access to over 15,000 acres that have previously been closed to public access.
“There is no doubt a void of public access in this area and in areas where public access is difficult it only increases the strain between landowners and the department when we aren’t able to manage the wildlife within those borders,” says Foster, of FWP.
Horse Creek Easement, Kip Stenson, Conservation Easement, Dawson County, Wibaux County, Montana, FWP, Land Board
Photo courtesy Kip and Adele Stenson
The easement is arising from a local collaborative effort between landowners and FWP. No single party will be able to claim they won the easement, but every party involved will be able to walk away from the table pleased with the positive outcome.
For the Stensons, it provides the long-term commitment to a ranching lifestyle that Adele’s parents instilled long ago during the family’s years spent on the Rocky Mountain front. For Montana Fish Wildlife & Parks, the easement provides invaluable habitat and winter range for the wildlife in the area. For hunters, it provides hunting opportunities on almost 24 square miles of land. 
“When the Montana land board meets to vote on the easement we have agreed to with the Department, I hope they keep our private property rights in the back of their mind and not what they believe we should be able to do with our property rights,” Adele says.
Ranching in Eastern Montana is the foundation of our way of life. Montana has a golden opportunity to keep the status quo.
The Montana FWP Commission gave its unanimous approval to the Horse Creek Conservation Easement Feb. 15. Next, it needs a passing vote from Montana’s Land Board, consisting of Gov. Steve Bullock, Attorney General Tim Fox, Secretary of State Corey Stapleton, Superintendent of Public Instruction Elsie Arntzen and Auditor Matt Rosendale. That vote is expected Feb. 20.
For more information on the Horse Creek Complex Conservation Easement, you can read the decision notice from the Department of Fish, Wildlife and Parks here:http://fwp.mt.gov/news/publicNotices/conservationEasements/pn_0033.html
To comment on the Horse Creek Complex Conservation Easement, you can send an email to landboard@mt.gov
Contributed by Justin Schaaf. Justin is a hunter and conservationist whose roots in Eastern Montana stretch back to the turn of the last century. After growing up in Glendive, he is now raising his young family in Fort Peck near the Charles M. Russell National Wildlife Refuge.
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Montana Capitol, Helena 

Saturday, February 17, 2018

Keeping a way of Life: Land Near Glendive Could Get Permanent Protection, Public Access