The Montana Wildlife Federation, Montana Sportsmen Alliance and Public Land/Water Access Association filed suit challenging the process used to adopt the Montana Land Board’s new state land exchange policy.
The lawsuit argues that the Land Board adopted a statewide policy, rule, standard or practice requirement without adequate public notice, meaningful public participation or compliance with applicable Montana law.
Land exchanges can be valuable tools to consolidate land ownership, protect large chunks of habitat, improve public access or otherwise serve Montanans. The concern is that the rules governing those exchanges were significantly changed through a rushed and opaque process that failed to provide the meaningful opportunity for the public to comprehend and comment on the proposal.
Why state trust lands matter
Montana’s state trust lands are public assets. They generate revenue for public schools and other trust beneficiaries, provide important wildlife habitat and offer hunting, fishing and outdoor recreation opportunities across the state.
Because these lands exist for the public’s benefit, decisions about how they are managed, valued and exchanged carry significant public interest. Montanans also contribute to the stewardship of these lands through the purchase of annual conservation licenses, further underscoring the public’s stake in how state lands are managed and accessed.
Trading public lands must be done carefully, transparently and in a way that clearly benefits Montanans.
A rushed Land Board vote
On May 18, the Montana Land Board voted to adopt a new policy governing state land exchanges. The proposal was introduced by State Auditor James Brown, a member of the Land Board, and represented the first major overhaul of Montana’s land exchange policy in roughly 20 years.
Although the rules had not been updated in decades, they had been amended twice before. In both prior instances, the process was led by the Department of Natural Resources and Conservation and included a 30-day public comment and scoping period.
That did not happen this time.
The full proposal was made available to the public less than a week before the May Land Board meeting, including a weekend. DNRC did not issue a public notice, publish a press release or conduct a public scoping process on the proposed change. The policy was brought by the Land Board and decided by the Land Board, rather than moving through the same DNRC-led public process used in the past.
During the meeting, MWF and others asked for a 30-day extension so the public would have more time to review and comment on the proposal. Gov. Greg Gianforte made a motion to add a 30-day public comment period, but the motion failed. The Land Board later approved the policy.
“Governor Gianforte agreed with us and made that motion, but it was voted down,” said MWF Board President Mike Mershon. “Clearly, we were not the only ones concerned that this process was inadequate for an action of such significant public interest.”
What changed under the new policy
The new policy makes significant changes to how state land exchanges are reviewed and evaluated.
One of the most concerning changes is the removal of DNRC’s ability to deny certain proposed exchanges before they reach the Land Board. Under the new policy, only the Land Board may deny a proposed exchange. MWF and its partners are concerned that this shift weakens the role of professional agency review and places more discretion in the hands of the five-member Land Board.
The policy also gives landowner-hired consultants a larger role in the exchange process. Under the new policy, consultants paid entirely by the applicant may help prepare information for environmental review, obtain surveys, assist with timber cruising, plan and facilitate public hearings, and review and summarize public comments. Consultants may also be involved in selecting appraisers and surveyors.
That raises serious questions about whether an applicant-funded process can fairly protect the public’s interest.
The policy also changes how publicly accessible lands and water-accessible parcels are valued and evaluated. MWF and its partners are concerned that the new novel criteria are less clear, making it harder to consistently determine whether a proposed exchange truly benefits the public.
Why the process matters
Land exchanges are often complicated and controversial. They require a willing landowner, but they must also serve the state’s best interests and protect the public’s stake in state trust lands. That balance is not always easy to achieve.
That is exactly why clear rules, professional agency review and meaningful public participation matter.
When the rules guiding land exchanges become more discretionary, it becomes easier for powerful applicants, paid consultants and influential lobbyists to shape the outcome. It also becomes harder for the public to know whether access, habitat, water resources and long-term public value are being fully considered and fairly valued
MWF and its partners believe Montanans should have had a real opportunity to review the proposed changes before they were adopted.
“If the five-member Land Board is going to rewrite the rules governing state land exchanges and give itself greater authority over those decisions, Montanans deserve to know exactly what is changing and have a legitimate opportunity to weigh in,” Mershon said. “They got neither. MWF believes this process needs a do-over — one that includes adequate notice, transparency and meaningful public participation.”
What the lawsuit seeks
The lawsuit does not challenge land exchanges as a tool.
Land exchanges can benefit the public when they improve access, resolve checkerboard ownership patterns, protect important habitat or create better long-term management outcomes. But the rules governing those exchanges should not be changed without giving Montanans time to understand what is changing and how those changes could affect public lands and public access.
MWF, Montana Sportsmen Alliance and Public Land/Water Access Association are asking the court to address the process used to adopt the new policy and ensure that major changes to public land policy follow the law.
Our groups believe the Land Board should redo the process with adequate notice, transparency and meaningful public participation.
Montanans deserved a real chance to weigh in before the rules governing state land exchanges were changed. Public land decisions should happen in public view.
Fighting for public access, public lands and public process takes resources. Please consider supporting Montana Wildlife Federation, Montana Sportsmen Alliance and Public Land/Water Access Association as we work to keep public land decisions transparent and accountable.
