On Monday, May 18th, the Montana Land Board voted to upend the rules that guide state land exchanges.
Montana Wildlife Federation testified in opposition and requested a 30-day extension, arguing that the process for a complex proposal was deliberately rushed.
Land Exchanges are controversial in nature. They require a willing landowner but must also serve the state’s best interests, often a difficult balance to achieve.
The driving force for this revision, however, was to remove the Department of Natural Resources and Conservation’s (DNRC) ability to flatly deny exchanges that are not in the public interest and/or not eligible under existing land exchange requirements. Now, only the Land Board may deny a proposed exchange. This removes agency authority to defend the public’s interest and places that responsibility solely in the hands of the five-member Land Board.
Additionally, the criteria used to determine whether the public benefits from these exchanges have become more nebulous and are now open to the Land Board’s interpretation and discretion. We are concerned that this will benefit applicants with influential lobbyists and paid consultants, but it might not benefit the public.
As a consolation, there are now more opportunities for public comment, but they only matter if the Governor and the rest of the Land Board listen. We’ve often been told that decisions like these are not a popularity contest. With less clear and quantifiable criteria, it’s now entirely possible to spin any proposal as a fair deal.
Another noted change is the emphasized use of consultants, now allowed to represent both the landowner and the DNRC to speed up approvals, paid for entirely by the landowner/applicant.
Under the new policy, consultants’ scope of work may include “preparing information to support the MEPA analysis,… obtaining surveys, timber cruising, planning and facilitating the public hearing… reviewing and summarizing public comments, etc.” Consultants can even pick the certified appraisers and surveyors they prefer.
This is alarming, and we question what applicants will pay consultants to execute a land exchange unless they’re confident they’re getting the better end of the deal. These consultants are not being hired to be fair, third-party facilitators; they’re being paid to do whatever is necessary to get an exchange approved.
Finally, it’s highly unusual for a Land Board member (Commissioner James Brown in this case) to propose and draft these changes. Typically, any revisions to a policy like this would come directly from DNRC. We are unaware of any problems or issues identified by DNRC that this proposal sought to solve. DNRC did not request this.
If these updates weren’t at the behest of DNRC, who then would benefit from these changes, and why were those interests so adamantly opposed to a 30-day public scoping period?
We believe answers to these questions have (and will) become clear.
