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Bullock v. Fox

Supreme Court of Montana

February 28, 2019


          Argued: December 5, 2018

          Submitted: December 11, 2018

          ORIGINAL PROCEEDING: Petition for Declaratory Relief

          For Petitioners: Raphael J.C. Graybill, Chief Legal Counsel, Office of the Governor, Helena, Montana

          For Respondent: Timothy C. Fox, Montana Attorney General, Rob Cameron, Melissa Schlichting, Deputy Attorneys General, Helena, Montana,

          For Amicus Curiae Anaconda Sportsmen's Club: Peter Michael Meloy, Meloy Law Firm, Helena, Montana

          For Amicus Curiae Public Land/Water Access Association, Inc.: James H. Goetz, Goetz, Baldwin & Geddes, P.C., Bozeman, Montana Paul S. Burdett, Public Land/Water Access Association, Billings, Montana


          Mike McGrath, Chief Justice

         ¶1 Petitioners Steve Bullock, in his official capacity as Governor of Montana, and Martha Williams, in her official capacity as Director of the Department of Fish, Wildlife, and Parks, invoke this Court's original jurisdiction to declare whether Montana law requires FWP to bring conservation easement transactions of more than 100 acres or $100, 000 in value before the Board of Land Commissioners for final approval.

         ¶2 We restate the issues as follows:

         1. Whether the Governor and FWP Director have standing within prudential limits.

         2. Whether "land acquisition" per § 87-1-209(1), MCA, requires FWP to bring conservation easement transactions of more than 100 acres or $100, 000 in value before the Land Board for final approval.


         ¶3 The parties do not dispute the facts. The sole dispute between the parties is a matter of law. The Attorney General believes that Montana law requires the Department of Fish, Wildlife and Parks (FWP) to seek final approval from the Board of Land Commissioners (Land Board) for conservation easement transactions pursuant to its Habitat Montana Program (Habitat Montana), while the Governor and FWP Director do not. Because the parties dispute only a question of law, and the Governor and FWP Director petitioned this Court directly for declaratory relief, no factual record directs this Court's inquiry. However, a brief factual and procedural background explains how the issue came before the Court.

         ¶4 Habitat Montana emerged from legislation passed in 1987. See § 87-1-241, MCA; Admin. R. M. 12.9.508(2) (1994); Admin. R. M. 12.9.511 (1994); Admin. R. M. 12.9.510 (1994). Through Habitat Montana, FWP uses fees from hunting licenses[1] to purchase conservation easements, enter into lease agreements, and purchase fee title lands to conserve wildlife habitat, maintain traditional agricultural uses of land, and provide increased public access to land across the state of Montana. FWP initially purchased few conservation easements due to their relative novelty as a conservation tool and general landowner skepticism. Over time, interest from the agricultural community grew. As of December 2016, FWP held forty-three Habitat Montana conservation easements covering 240, 452 acres across the state. "Habitat Montana," Report to 65th Montana Legislature, Montana Fish, Wildlife, and Parks, January 2017.

         ¶5 Years of upfront costs and collaboration between private landowners and FWP go into conservation easement transactions. The process begins when private land owners voluntarily reach out and work with FWP regional staff to determine whether a project on their property is viable. The Fish and Wildlife Commission (Commission) assesses the project and provides an initial endorsement. The landowner and FWP then collaborate and negotiate until an agreement is reached, which often requires land appraisals, attorney fees, and surveys. Successful projects return to the Commission for public comment, deliberation, and, pursuant to § 87-1-301(1)(e), MCA, final approval. FWP often, but not always, brought these conservation easement transactions before the Land Board for additional approval. The Land Board generally approved the projects.

         ¶6 FWP is currently in the process of negotiating and approving thirteen conservation easement transactions across the state, three of which previously received final approval from the Commission and faced deadlines for completion before January 1, 2019. Combined, these three transactions would put 18, 614 acres of private land across Montana under conservation easement with FWP.

         ¶7 On September 18, 2017, the Land Board voted down an amendment to the Keogh Ranch Conservation Easement, and on February 20, 2018, the Land Board indefinitely postponed consideration of the approximately $6.1 million, [2] 5, 000-acre Horse Creek Conservation Easement near Wibaux, Montana. FWP did not resubmit the projects. Instead, Governor Bullock directed FWP to finalize the Horse Creek Conservation Easement without the Land Board's final approval. While § 87-1-209(1), MCA, requires final approval from the Land Board for "land acquisition involving more than 100 acres or $100, 000 in value," Governor Bullock reasoned that "land acquisition" did not include conservation easement acquisition; Montana law did not obligate FWP to bring its conservation easement transactions before the Land Board.

         ¶8 On August 1, 2018, Senate President Scott Sales requested an Attorney General opinion as to whether § 87-1-209(1), MCA, required the Land Board's final approval on FWP's conservation easement transactions. On October 15, 2018, Timothy C. Fox, in his official capacity as Attorney General of Montana, issued an Opinion (A.G. Opinion) precluding FWP from finalizing conservation easement transactions of more than 100 acres or $100, 000 in value without the Land Board's final approval. 57 Op. Att'y Gen., (Oct. 15, 2018).

         ¶9 While an A.G. opinion binds state agencies, an A.G. opinion does not bind the courts, which have the authority to overrule opinions incorrectly interpreting the law. This Court is not bound by an A.G. Opinion. Section 2-15-501(7), MCA ("the attorney general's opinion is controlling unless overruled by a state district court or the supreme court"); O'Shaughnessy v. Wolfe, 212 Mont. 12, 16, 685 P.2d 361, 363 (1984).

         ¶10 Governor Bullock and FWP Director Williams petitioned this Court to assume original jurisdiction and determine the A.G. Opinion incorrect as a matter of law. The Anaconda Sportsmen's Club and Public Land and Water Access Association, Inc. submitted amicus briefs in support of the Governor and FWP Director's interpretation of § 87-1-209(1), MCA. This Court established an expedited briefing schedule, heard oral argument from the parties on December 5, 2018, and on December 11, 2018, issued an Order accepting original jurisdiction and overruling the A.G. Opinion.


         ¶11 This Court may assume original jurisdiction when: (1) urgency or emergency factors exist making litigation in the trial courts and the normal appeal process inadequate; and (2) when the case involves purely legal questions of statutory or constitutional interpretation which are of state-wide importance. M. R. App. P. 14(4).

         ¶12 The Governor and FWP Director's petition meets the requirements of M. R. App. P. 14(4). This Court assumes original jurisdiction to determine whether "land acquisition" pursuant to § 87-1-209(1), MCA, includes conservation easement transactions and requires the Land Board's final approval.

         ¶13 This Court properly invokes original jurisdiction "in a declaratory judgment action where legal questions of an emergency nature are presented and ordinary legal procedures will not afford timely or adequate relief." Grossman v. Dep't of Nat. Res., 209 Mont. 427, 433, 682 P.2d 1319, 1322 (1984). Such is the situation here. Three conservation easement transactions, including the Horse Creek Conservation Easement, faced completion deadlines before the end of 2018, which has since passed. Prior to this Court's Order overruling the A.G. Opinion, these transactions hung in legal limbo. FWP gave its final approval to the projects. Governor Bullock directed FWP that Montana law did not obligate it to bring the conservation easement transactions before the Land Board, and that the transactions would be complete upon FWP's transfer of the necessary funds. The binding A.G. Opinion then precluded FWP from transferring funds and completing the projects without final approval from the Land Board, which had previously tabled discussion on the Horse Creek Conservation Easement indefinitely. Had this Court not accepted original jurisdiction and overruled the A.G. Opinion on December 11, 2018, district court proceedings likely would have resulted in the expiration of the projects. See Grossman, 209 Mont. at 436, 682 P.2d at 1324.

         ¶14 Habitat Montana conservation easement transactions require years of collaboration and financial investment from private land owners and FWP. Additionally, FWP uses its Habitat Montana funding to match federal dollars, and partners with various conservation organizations to financially ensure their viability. A district court opinion is not sufficiently authoritative to provide landowners and investors with a final resolution of the constitutional and substantive issues involved. See Grossman, 209 Mont. at 435-36, 682 P.2d at 1324. This Court assumes original jurisdiction to provide a timely and definitive opinion as to whether "land acquisition" includes conservation easement acquisition, and to ensure that the law, rather than uncertainty, guides landowner and investor decision-making and participation in the program.

         ¶15 The parties dispute the meaning of § 87-1-209(1), MCA, which is purely a question of statutory interpretation. Habitat Montana conservation easements, as of 2016, cover 240, 452 acres across the state. The three FWP-approved conservation easement transactions would add an additional 18, 614 acres. The process by which FWP finalizes these conservation easements is an issue of statewide importance. This Court properly assumed original jurisdiction over the issue presented.


         Historical Background: The Constitutional Convention of 1972

         ¶16 While the issues presented concern justiciability and statutory interpretation, full appreciation of this decision requires an understanding of the historical context preceding and enshrined in Montana's 1972 Constitution.

         ¶17 Montana became a state on November 8, 1889, operating under a constitution (1889 Constitution) hastily drafted with statehood in mind. "One interest above all dominated [the delegates to the 1889 Constitutional Convention's] thinking-the mining industry." Montana Constitutional Convention, The Movements for Statehood and Constitutional Revision in Montana, 1866-1972, January 1979, p. v. At the time, Montana's politics revolved around copper, the railroad, timber, and the likes of Marcus Daly and William A. Clark. Private economic interests determined the language adopted in the 1889 Constitution, and set "the tenor of later contests, including a major battle in the Clark-Daly [f]eud and the cause of the scattering of state institutions." Movements for Statehood, p. v.

         ¶18 In 1970, Montanans voted for a constitutional convention, [3] and in 1972, one hundred delegates from across the State met in Helena, Montana, and embarked on creating a new constitution. Central to the 1972 Constitutional Convention (1972 Con Con) was a desire to re-organize the executive power, which according to the delegates, "had been whittled to insignificance by creation of more than 160 state agencies with little executive or legislative supervision," and to re-establish "the fundamental concept of checks and balances by separate branches of government." Montana Constitutional Convention, Committee Proposals, February 17, 1972, pp. 449-50 (hereinafter Convention Committee Proposal). The delegates took on the "1889 Constitution's inherent contradiction -- the delegation of executive power to the governor, yet restricting that power due to diffusion in Constitutional boards"-and clarified it. Convention Committee Proposal, p. 448.

         ¶19 The Constitution adopted by the 1972 Con Con and ratified by the people on June 6, 1972, provides, "[t]he executive power is vested in the governor who shall see that the laws are faithfully executed." Mont. Const. art. VI, § 4(1). The drafters of this language commented:

[Due to] the people having decisively voted to implement a well-ordered executive department of government in place of the 103 or more boards, bureaus, commissions, etc., it is clear that a strong and responsive chief executive is desired. W[e] have clarified his powers and duties accordingly.

Convention Committee Proposal, p. 442. The drafters further commented:

Previously, the divided powers of boards of elective officials, such as the board of examiners, made a mockery of [the provision]: 'The supreme executive power of the state shall be vested in the governor, and shall see that the laws are faithfully executed.' The governor, under reorganization and in this article, has the responsibility and the accountability to the electorate and the legislature. This fundamental principle of delegation of power is an important breakthrough in the continuing effort for ...

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