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Forever no more? Bill seeks to restrict state’s access to perpetual conservation easements

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Northwest Montana's Whitefish Range rises beyond the Grave Creek project site, where grizzly bear advocacy group Vital Ground and landowners Greg and Lisa Levine are partnering to conserve open space and wildlife habitat. More than 3 million acres are under conservation easement in Montana, according to s 2021 legislative report. PHOTO COURTESY OF VITAL GROUNDS VIA MTFP

Senate Bill 357 garners pushback from unlikely collective of opponents.

By Amanda Eggert MONTANA FREE PRESS

A broad assortment of industry groups, conservation nonprofits, ranching families and hunting and fishing access advocates on Tuesday testified in opposition to a bill that would impose term limits on many conservation easements acquired with state funding. 

If passed, Senate Bill 357 would put a 40-year term limit on many conservation easements purchased with state funding by agencies such as Montana, Fish, Wildlife and Parks. The measure includes exceptions for easements that are smaller than 1,500 acres or purchased with forest legacy program funds. Easements seeking to protect critical habitat for endangered and threatened species or further Greater Sage Grouse conservation efforts would also be exempted from the term limit.

Opponents argued that reducing property owners’ access to perpetual conservation easements could threaten landowners’ ability to keep agricultural properties in family ownership, compromise lumber companies’ access to working forests, and adversely affect the open spaces that support wildlife habitat and recreational access.

The lone Senate Bill 357proponent, United Property Owners of Montana Policy Director Charles Denowh, said perpetual easements create “lopsided” transactions that tend to shortchange both existing landowners and future potential property owners, who are “held hostage” by the terms of an agreement they didn’t necessarily agree to.

During his opening remarks, Sen. Steve Hinebauch, R-Wibaux described SB 357 as a property rights bill that seeks to address his concerns about the proliferation of conservation easements hampering the construction of power lines, pipelines and roads. That’s true, he said, even in remote parts of eastern Montana where he ranches.

“Even in our country, there are spots where we can’t build a powerline or a pipeline or a road because these easements won’t allow that — they don’t allow development,” he said. “That’s a big concern of mine — we’re going to block ourselves from things we really need.”

Hinebauch said he’s also concerned that cash-strapped landowners surrendering the ability to develop their property will be left with “pretty much peanuts” down the line. Future generations’ ability to secure a loan in order to purchase additional acreage or build a house could be hampered, he said.

“No bank is going to come in and loan money on a place that has an easement on it,” he said. 

Denowh said permanent easements create transactions that bestow easement holders with much longer-lasting benefits than the landowners selling development rights.

“If there is some compelling public interest to subsidize conservation easements, then why are we only subsidizing perpetual easements?” he added, arguing that the transaction could be executed without the investment of public funding that amounts to a “government tax break.”

Trust for Public Land Northern Rockies Director Dick Dolan countered that transactions for conservation easements involve willing buyers and willing sellers, and are essential to maintaining “the best of Montana.” Ravalli County voters’ recent decision to reauthorize an open space bond demonstrates Montanans’ support for conservation easements, he said. More than 70% of voters approved a $10 million bond building off of the county’s 2006 bond, which helped the Open Lands Program conserve more than 10,000 acres of open space in one of Montana’s fastest-growing counties.

Dolan also said properties with easements stay on tax rolls and support agricultural and timber jobs, which also support local tax bases.

At least three ranch families who’ve put property under a conservation easement in recent decades also testified in opposition to the bill, arguing that easements have aided in succession planning, supported public elk hunting opportunities or affirmed their families’ commitment to conservation and land stewardship.

“We willingly and consciously surrendered the opportunity to subdivide and develop in order to preserve the opportunity for my kids, and the generations after them, to live with and from the land,” Tyrell Hibbard with Sieben Livestock Company said of his family’s nearly 16-year-old easement. “There’s nothing broken that needs to be fixed.”

Lumber companies argued that perpetual conservation easements that allow for some timber harvest support sawmill jobs, family-owned lumber operations and the private property rights that are important to northwestern Montana communities. They also argued that the exception for Forest Legacy Program, which supports timber harvest, recreational and wildlife-related initiatives, fails to appreciate the complexity of that program given the multiple pots of funding that are sometimes used to execute an easement sale.

Dolan said there’s an oversight mechanism for easements purchased with state funding if that’s the concern. The Fish and Wildlife Commission, the seven-member, governor-appointed body that oversees wildlife and state park administration, must sign off on FWP-acquired easements, and the Montana Land Board has the ability, per a measure passed by the 2021 Legislature, to vote up or down on acquisitions involving more than $1 million or 500 acres.

The Montana Stockgrowers Association, Treasure State Resources Association, Montana Logging Association and Montana Wood Products Association registered opposition against SB 357, as did conservation and hunting-oriented groups ranging from the the Rocky Mountain Elk Foundation and the Montana chapter of Backcountry Hunters and Anglers to Wild Montana and Montana Conservation Voters.

The Senate Fish and Game Committee did not take immediate action on the bill.

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