Montana Land Board updates land exchange policy for first time in two decades

The Montana Board of Land Commissioners voted to update its land exchange policy for the first time in more than two decades, with Gov. Greg Gianforte abstaining from the vote after the board overruled his request for a 30-day public scoping process. 

At its May 18 meeting, the Land Board — comprising Gianforte, and the state Superintendent of Public Instruction, Auditor, Secretary of State, and Attorney General — approved the first revisions to the land exchange policy since 2004, shifting some decisions-making power to the board and away from the Department of Natural Resources and Conservation. 

“This is probably the most pro-public lands proposal that’s been brought forth in a long time, because the idea is to try to deal with some long-standing issues that have hampered the land exchange process, but also to try to open up public access for those of us that are ordinary Montanans,” State Auditor James Brown said.

But Gianforte abstained from voting, after trying to amend the motion to adopt the new policy to provide a 30-day public scoping period, which he said was standard practice for the land board. 

“I think your intent to improve the land exchange process is a good one. I think the opportunity to streamline it, so that we can clean up some of this checkerboard and expand access, would be helpful to all Montanans. I support updating the policy,” Gianforte told Brown. But, “I had anticipated, in accordance with land board past practice, that we would first submit the proposal to public scoping before voting on it. It was first posted a week ago, and I don’t believe that that is sufficient time to allow adequate public input before going to public comment.”

The governor’s motion to add a 30-day public scoping period failed, with just Secretary of State Christi Jacobsen joining him. 

Among the powers given to the Land Board is the ability to exchange public State Trust Lands with other government agencies, or for private land “of equal or greater value” according to Montana statute. One main goal of swapping sections of public and private land is to consolidate state lands, and eliminate parcels the public isn’t able to access, such as those landlocked or cornerlocked by private holdings. 

Brown, who has been working to rewrite the internal guiding document for roughly nine months, told the Daily Montanan it was a “priority” project since taking office last year.  

A major goal for getting the policy approved on Monday was because land exchanges are a “slow moving process,” and streamlining and shortening the process will benefit Montanans, he said. 

“I had some frustrations as a private attorney that some Land Board decisions were being made at the (DNRC) level, and not reaching up into the Land Board itself,” Brown said in an interview. “This provides better optics for the application process for those who want to do these land exchanges. I’ve talked to several folks who wanted to do these exchanges, but the projects are shot down at the department level.”

The previously existing policy, adopted in 1994 and last revised in 2004, laid out the process for how the state facilitates land exchanges, with the Land Board ultimately tasked with approving changes that are considered a “good deal” for the state. 

Under the old policy, when an individual or corporation presented a proposal to the state, the Department of Natural Resources and Conservation would conduct a preliminary evaluation and could reject a proposal for not meeting requirements. If DNRC decided a proposal met requirements, they would solicit public comment and then send a preliminary report to the Board. 

Following a review by the land board, the proposed exchange would go back to DNRC for an official study to review its merits, environmental consequences, appraised land values and other factors for the board to weigh in its decision. Finally, a final review by the land board would authorize, or stop, the exchange. 

Under the newly revised policy, DNRC no longer has the authority to deny a proposed land exchange during its preliminary review. That power will solely reside with the Land Board at all stages of the process. 

It also highlights “at least seven” opportunities for the public to review and participate in the process, including submitting comments to DNRC during its preliminary review, during the Montana Environmental Policy Act review process and during the Land Board meetings where both preliminary and final reviews are completed. 

At Monday’s meeting, Brown described the revised policy as “a red-tape reduction” initiative that will “restore the financial and final decisions making back into the hands” of the Land Board. (During Gianforte’s first term, he prioritized streamlining and simplifying state processes and policy in both statute and practice under a policy he dubbed the “red-tape reduction.”) 

“We are the constitutional officers that are tasked with being the fiduciaries of the school trust, it is not the DNRC, it is us, and that’s where the decision making should be,” Brown said. “The policy is further designed to reduce existing barriers that discourage Montanans from coming to us with beneficial land exchange proposals.”

Brown said he’d been working on the policy for months, including reaching out to and meeting with DNRC staff numerous times to get input on the proposal. 

He said he didn’t receive feedback from the department earlier this year and in February asked the Land Board to put it on their May agenda “because I wasn’t getting the kind of cooperation I would otherwise expect from DNRC staff on this matter.”

A spokesperson for DNRC did not respond to questions by publication. 

At the meeting, Attorney General Austin Knudsen praised the auditor for being “absolutely relentless” in pursuing the policy change, and said the collaborative nature of the auditor’s effort was on display with support from both ranching and conservation groups, which isn’t always common in Montana. 

Public comment on the land exchange policy was largely supportive from all groups. 

“I would not be standing here today if I didn’t believe that this policy, as it’s being proposed, enhances transparency, that it increases public participation in land exchanges,” said Clayton Elliott, with Montana Trout Unlimited. “We applaud the opportunity to revise the policy of this board. We think it’s timely.”

Representatives from the Montana Stock Growers Association, the Montana Association of State Grazing Districts, and the Montana Farm Bureau Federation also spoke in favor of the revisions. 

“Montana Stock Growers and the Grazing Associations have long worked on solutions to unlock public lands, and we feel like this really does allow for that tool to be put into place,” said Raylee Honeycutt. “There are some concerns out there regarding how these land exchanges could potentially work, but I think it’s important to know one of those new components to this proposal is allowing public interest groups and actually encouraging them to engage in the process … we really think that is another opportunity for those groups who want to work towards solutions to engage.”

But some organizations said that while they supported revising the policy, the changes were quite large and the public should be allowed more time to weigh in. 

Russell Fruits, with Backcountry Hunter and Anglers, said his organization had some concerns with another provision that emphasizes an applicant for a land exchange should hire an independent consultant to “assist the department in reviewing the land exchange proposal and to facilitate the state’s administration of the land exchange process.”

Previously, the policy stated that the land exchange process “may, at the department’s discretion, be facilitated by the proponent of the land exchange,” through a contractor. 

“When one party as the agent is supposed to facilitate both sides of a transaction, the process becomes oriented towards closing and not towards protecting each party’s interest,” Fruits said. “This is exactly the structure that this proposal creates, except the underrepresented party isn’t a private buyer, it’s the public. This policy change was not requested by DNRC, the agency that actually administers these lands.”

Multiple groups agreed with Gianforte in requesting a 30-day public comment period. 

“With all due respect to Commissioner Brown, and given the overwhelming public support for public lands in Montana, we find the proposed changes to the land exchange policy as currently written to be ill-advised and difficult to identify in the context of the document. This proposal was advanced belatedly and in a nontransparent manner,” said Jeff Herbert with Montana Sportsmen Alliance. 

While Brown discussed adding the policy to the May agenda during a February land board meeting, published an opinion piece in the Bozeman Chronicle in April and published a draft document on the his office’s website last month, the final version of the revised policy was only officially released as part of the the Land Board agenda in recent weeks. 

In a statement to the Daily Montanan, a spokesperson for the Auditor’s office said there has already been “significant opportunity for public input” on the proposal, “both directly and through Land Board members elected by and accountable to Montanans.”

“Before today, much of this process was controlled behind closed doors by unelected bureaucrats,” said spokesperson Tyler Newcombe. “Auditor Brown is proud to bring more transparency and accountability to the process. At this point, calls for additional ‘scoping’ are simply delay tactics aimed at keeping power in bureaucratic hands instead of with elected officials.”

Ryan Weiss, Deputy Administrator for Trust Lands at DNRC, said during the meeting that previous board policies historically were first discussed and developed by the department, not board members, and included scoping periods. Most recently, Weiss said, a current livestock grazing proposal is being scoped out with the public before it will come back to the Land Board for final consideration. 

In a statement to the Daily Montanan after the vote, Gianforte’s office said “while the governor supports updating the land exchange policy, the historic practice of the Land Board has been to do 30-day public scoping when it is updating its policies.”

Additional changes to the land board policy included putting an emphasis on affirmative action by the Land Board — the old policy explicitly stated the board has the power to disapprove exchanges while the updated one repeatedly states the converse, that “it is the Board’s duty to approve any exchange which in its opinion would be advantageous to the state.”