"The governor, superintendent of public instruction, auditor, secretary of state, and attorney general constitute the board of land commissioners. It has the authority to direct, control, lease, exchange, and sell school lands and lands which have been or may be granted for the support and benefit of the various state educational institutions, under such regulations and restrictions as may be provided by law."

History

Sources

1884 Montana Constitution (proposed)

Article XI, Section 4.

The Governor, Superintendent of Public Instruction, Secretary of State and Attorney General shall constitute the State Board of Land Commissioners, who shall have the direction, control, and disposition of school lands of the State, under such regulations and restrictions as may be prescribed by law; but no part of such lands shall be disposed of except after appraisal without regard to any improvements thereon, and at public auction to the highest bidder above the appraised value; nor shall more than one-tenth part of such lands be exposed to sale in any one year.

1889 Montana Constitution

Article XI, Section 4.

The governor, superintendent of public instruction, secretary of state and attorney general shall constitute the state board of land commissioners, which shall have the direction, control, leasing and sale of the school lands of the state, and the lands granted or which may hereafter be granted for the support and benefit of the various state educational institutions, under such regulations and restrictions as may be prescribed by law.

Other Sources

1889 Enabling Act

Under the 1889 Enabling Act, the federal government granted Montana the sixteenth and thirty-sixth section of each township in Montana "for the support of common schools."Ch. 180, 25 Stat. 676 (Feb. 22, 1889).

Text of the Enabling Act

That upon the admission of each of said States into the Union sections numbered sixteen and thirty-six in every township of said proposed States, and where such sections, or any parts thereof, have been sold or otherwise disposed of by or under the authority of any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one-quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said States for the support of common schools, such indemnity lands to be selected within said States in such manner as the legislature may provide, with the approval of the Secretary of the Interior: Provided, That the sixteenth and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this act until the reservation shall have been extinguished and such lands be restored to, and become a part of, the public domain.Ch. 180, 25 Stat. 676 (Feb. 22, 1889).

Elbert F. Allen, Sources of the Montana State Constitution (June 10, 1910) Mont. Const. Conv. Comm'n. Memorandums, "Sources of the Montana State Constitution," Memorandum No. 4, pg. 5 (1971–1972).

"Article eleven, education, is not based on any other single constitution. It may have been based on already existing school laws; probably the constitutions of of California, Colorado, Kansas, and Minnesota, but there was not enough information to make a definite statement. Likely, the education article originated with the committee and was prompted by unsatisfactory provisions of other states, with Iowa being mentioned."

Montana Constitutional Convention Occasional Papers Mont. Const. Conv. Occasional Papers,"Comparison of the Montana Constitution with the Constitutions of Selected other States," Report No. 5 (1971–1972).

In preparing to draft the new Constitution, the Constitutional Convention Committee researched other state constitutions for their study of the Montana Constitution. The committee looked at Alaska, Hawaii, Michigan, New Jersey and Puerto Rico, and none of those Constitutions had a comparable section regarding a Land Board for administration of public lands for school funds. It was noted, except for a few changes in wording, the section in the 1889 Constitution was adopted from Article IX, Section 4 of the proposed 1884 Constitution. Article XI, Section 4 was never amended, nor were any amendments ever proposed to alter its 1889 wording.

Drafting

Constitutional Revision Committee Proposal: Reported February 22, 1972Mont. Const. Conv., Comm. Report, Vol. II at 713-718, 726-727, Feb. 22, 1972.

The Education and Public Land Committee proposed new articles on Education, Public Lands, and Investments to replace the Education, Public Lands, and Trust and Legacy Fund Articles.The committee proposed keeping a Land Board comprised of four elected officials; the governor, the superintendent of public instruction, attorney general, and secretary of state. It was noted the board serves an important function, supervising the management of school lands and the income from those lands. The Land Board had worked well in the past and appeared to be able to do the same for the foreseeable future. The only change suggested was adding the word "exchange" to the list of activities within the board's power. This change was proposed because the state had been prevented from making advantageous exchanges of land because this power was not included in the 1889 provision. The committee also considered revising the board membership, dropping the secretary of state, but ultimately decided a board comprised of four elected members was an important source of direct popular control, and so long as a majority was required, a decision would be based on caution over expediency.

There was no minority proposal.

Constitutional Committee on Style, Drafting, Transition: Reported March 15, 1972Mont. Const. Conv., Comm. Report, Vol. II at 997, Mar. 15, 1972.

The State Auditor was added to the list of board members following debate and resolution on the floor. Other than a few stylistic changes, including adding "exchange" to allowable board activities, there were no major changes to Section 4.

Floor Resolution on Style, Drafting, Transition Verbatim Transcript, Vol. VII, at 2574-75, Mar. 17, 1972.

Delegate Schlitz suggested changing Section 4 so that it would read, "It has authority to direct, control, lease, exchange, and sell school lands and lands which may have been granted."

Final Report: Constitutional Committee on Style, Drafting, Transition: Reported March 22, 1972Mont. Const. Conv., Comm. Report, Vol. II at 1069, Mar. 22, 1972.

The final resolution reads as: The governor, superintendent of public instruction, auditor, secretary of state, and attorney general constitute the board of land commissioners. It has the authority to direct, control, lease, exchange, and sell school lands and lands which have been or may be granted for the support and benefit of the various state educational institutions, under such regulations and restrictions as may be provided by law.

Delegate ProposalMont. Const. Conv., Delegate Proposals, Vol. I, 329.

• Delegate Proposal No. 175, February 4, 1972 (introduced by Delegate Harbaugh): A proposal for a new constitutional section concerning public school lands and replacing Article XVII, Sections 1, 2, and 3 and Article XI, Section 4 of the Constitution of the State of Montana.

Floor DebateVerbatim Transcript, Vol. VI, at 1990-2002 (Mar. 10, 1972).

The floor debate was primarily focused on the number of board members and possible restriction of the Land Board's power to sell land.

Delegate Conover spoke of how Section 4 remained practically unchanged, with the exception of one word, exchange. The committee opted to keep the four member board because it had worked well in the past. Delegate Conover stated the committee added the word "exchange" to make the provision more workable and flexible. Delegate Conover spoke of the enabling Act of 1889, which gave Montana certain sections of land for school support, but when the enabling act was amended in 1932 to include the language, "any of said lands may be exchanged for other lands, public or private, of equal value and as near as may be of equal area," the Montana Constitution had not been amended to include "exchange." Delegate Conover stated the committee hoped that by allowing the land board to exchange isolated tracts of land with other land, the board would be able to manage the land with minimum output but maximum benefit. The committee hoped that allowing the Land Board to exchange land would allow for greater legislative flexibility, and enhance the benefits obtained from the state lands.

Delegate Warden moved to amend Section 4 and delete the Secretary of State from being a member. Delegate Warden stated an uneven number of board members was more practical.

Delegate Arbanas discussed that the committee doubted whether it made a difference if there was a Land Board because the real work is done by the Commissioner of Lands, and the Land Board, when it meets, generally rubber stamped what the Commissioner had decided.

Delegate Woodmansey pointed out the State Land Commissioner is appointed by the Governor, and the Governor is on the Land Board. Delegate Woodmansy was concerned that reducing the board to three members was risky.

Delegate Warden's motion to amend Section 4 and remove the Secretary of State from the Land Board failed by a vote of 25-59.

Delegate Cate moved to amend Section 4 to take out the words "and sale." The effect would be to take away from the Land Board the power of selling the land, but they would still be able to exchange, control, and lease the land. Delegate Cate expressed concern over land being sold to private individuals, many from out of state.

Delegate Drum argued that it would be impractical and inefficient for the Land Board to operate unless it could sell land. Delegate Drum commended the Committee for allowing the Land Board to operate more efficiently by allowing it to exchange property. Finally, Delegate Drum noted the latitude of the Land Board depends on the Legislature, which had been very restrictive on limits given to the Land Board. Delegate Drum stated the delegates should support the Legislature and the proposal from the Committee.

Delegate Davis spoke in favor of the Land Board and its ability to sell land, noting they have been a great guardian of the trust and he did not think the Land Board would sell lands unwisely.

Delegate Cate's motion failed by a vote of 10-77.

Delegate Studer moved to amend Section 4 to include the State Auditor on the Land Board because a four person board could lead to a deadlock.

Delegate Dahood supported Delegate Studer's proposed amendment, noting not even the Supreme Court has an even number of people deciding matters in controversy.

Delegate Studer's motion to add the State Auditor to the Land Board prevailed, 48-40.

Other Floor Debate regarding the Land Board

A topic of debate concerning proposed changes to the Education provision was whether the Superintendent of Public Instruction should remain an elected official or should be an appointed position, and the potential effect on the Land Board. There was concern over the impartiality of a Superintendent appointed and not elected serving on the Land Board. Delegate Conover, opposing an appointed Superintendent, stated Montana's public lands are very sacred to the state, and Montana was only one of two states left in the nation who had reserved all their school lands.Verbatim Transcript, Vol. IV, at 866 (Feb. 24, 1972).

Delegate Harbaugh pointed out the other (then three) members of the Land Board were elected, so he did not see how it would be an issue whether one member was appointed or elected. (At this time it was still unclear how the appointment process would work, it had been proposed the board of education would appoint the Superintendent).Verbatim Transcript, Vol. IV, at 866 (Feb. 24, 1972).

Another amendment floated was that the Attorney General be an appointed position. Delegate Siderius opposed the proposed amendment "for the main and simple reason that the Attorney General also sits on the Land Board, and I think he should be elected."Verbatim Transcript, Vol. IV, at 869 (Feb. 24, 1972).

Adoption

Section 4 was passed by the Convention on March 18, 1972 by a vote of 62-33. Verbatim Transcript, Vol. VII 2669-2670 (Mar. 18, 1972).

Ratification

Brown Collectionavailable at: http://www.umt.edu/law/library/montanaconstitution/brown.php.

The collection includes a January 28, 1972 article from the Tribune Capital Bureau. State Superintendent of Public Instruction, Dolores Colburg, urged the two Constitutional Committees to not tamper with provisions that ensure income from state lands go to support public education. Superintendent Colburg is quoted as saying "it would not serve public interest to eliminate the constitutional provision that provides for the Land Board." Superintendent Colburg lobbied for the State Superintendent to stay on the board as "the only tie between the management of school lands and the use of monies derived from these lands for the state school." Further in the article, State Land Board Commissioner Ted Schwinden states that Montana retains 5.1 million acres of the original 5.8 million acres the federal government granted at statehood. Schwinden noted the convention does not have the right to change some of the conditions on the use of state land imposed at statehood.

Gerald J. Neely. A Critical Look: Montana's New Constitution (1972)Gerald Neely, The New Montana Constitution: A Critical Look (1972) (available at https://www.umt.edu/law/library/montanaconstitution/campbell.php).

Neely noted there were revisions to the basic aims of the education system, but did not touch on the changes to Section 4, the Land Board.

Proposed 1972 Constitution for the State of Montana: Official Text With ExplanationProposed 1972 Constitution of the State of Montana, "Voter Information Pamphlet" pg.15 (1972).

The Proposed 1972 Constitution for the State of Montana Official Text with Explanation (Voter’s Information Pamphlet) highlighted the change to the Land Board, namely adding the state auditor to board of land commissioners and adding the power to exchange lands.

Campbell Collection

Delegate Campbell's collection includes a summary of the Proposed 1972 Constitution drafted by Professor Richard RoederRichard Roeder, 1972 Constitution Newspaper Supplement, 5.. Roeder's summary had the following to say regarding the proposed changes to Section 4: "Section 4, 5, and 11 deal with public school lands. Membership of the State Board of Land Commissioners will be increased from four to five with the addition of the state Auditor. The power is clearly given the power to exchange state lands for other lands when it is to the state's advantage."

Legislation

Statutes

• Montana Code Annotated §§ 77-1-201 to 236 govern the duties and requirements of the Land Board. The Legislature enacted Montana Code Annotated to assist the Land Board in fulfilling its duties as trustees of Montana public lands held in trust for the common good of public education.

• Montana Code Annotated §§ 77-2-201 to 217 govern exchanges of land and requirements of the Land Board.

Administrative Rules

• The Land Board the "authority to direct, control, lease, exchange and sell school lands" and other lands granted for the support of educationMont. Admin. R. 36.25.103.

Interpretation

Other Montana Constitutional Provisions

Article X, Section 2:Public School Fund

The public school fund is a constitutional provision related to the Board of Land Land Commissioners.

Article X, Section 5: Public School Fund Revenue

The public school fund revenue is another constitutional provision related to the Board of Land Land Commissioners.

Article X, Section 11: Public Land Trust, disposition

Disposition of public land trust is often seen as a companion to Section 4, board of land commissioners.

Cases

In re Powder River Drainage Area<ref>216 Mont. 361,702 P.2d 948,(1985).</ref>

In Powder River The Montana Supreme Court noted school trust lands are endowments for the benefit of Montanans to fund public education and the Land Board owes a fiduciary duty. "The 1889 Montana Constitution accepted these lands and provided that they would be held in trust consonant with the terms of the Enabling Act. The 1972 Montana Constitution continued these terms." The Court stated the Board of Land Commissioners are administrators of the trust and their duty is administer it in such a way to secure a legitimate and reasonable advantage to the State. Finally, the Montana Supreme Court, adopting principles articulated by the United States Supreme Court,set out three important principles to govern school lands: 1) that the enabling acts created trusts similar to a private charitable trust which the state could not abridge; 2) that the enabling acts were to be strictly construed according to fiduciary principles, and; 3) that the enabling acts preempt state laws or constitutions.

Montanans for the Responsible Use of the School Trust v. State ex rel Bd. of Land Comm'rs<ref>1999 MT 263, 989 P.2d 800</ref>

In MONTRUST v. Board of Land Commissioners, the Montana Supreme Court reinforced the fiduciary duty the Land Board owes to Montana citizens. "The state board of land commissioners, as the instrumentality created to administer that trust, is bound, upon principles that are elementary, to so administer it as to secure the largest measure of legitimate advantage to the beneficiary of it."<ref>Id. ¶14</ref> The Board of Land Commissioners "owe[s] a higher duty to the public than does an ordinary businessman."<ref>Id.</ref>

Commentary

Alex Sienkiewicz, "A Battle of Public Goods: Montana's Clean and Healthful Environment Provision and the School Trust Land Question."

The article discusses and analyzes the conflict between the Land Board and its Constitutional requirement to manage and generate revenue from state trust lands in support of public schools with Montana's constitutional guarantee of the right to a clean and healthful environment. In his article, Sienkiwicz suggests that while Montana's right to a clean and healthful environment holds "an almost sacrosanct place" in Montana, there is no guarantee that other compelling state interests, such as supporting public schools, might override the right a clean and healthful environment. Sienkiwicz suggests diversifying the Land Board, and including non-elected officials such as scientists, University Presidents, and administrators looking for a better long-term result, as opposed to elected officials seeking, short-term revenue maximization. <ref>"A Battle of Public Goods: Montana's Clean and Healthful Environment Provision and the School Trust Land Question," 67 Mont. L. Rev. 65, Winter 2006.</ref>

Alex O'Day, "School Trust Lands: The Land Manager's Dilemma Between Education funding and Environmental Conservation, A Hobson's Choice?"

The article provides a comprehensive history of the evolution of the school land trust doctrine and the emergence of the trust concept. The article briefly discusses Montana's creation of a trust and the fiduciary duties of the Land Board. <ref>SCHOOL TRUST LANDS: THE LAND MANAGER'S DILEMMA BETWEEN EDUCATIONAL FUNDING AND ENVIRONMENTAL CONSERVATION, A HOBSON'S CHOICE?, 8 N.Y.U. Envtl. L.J. 163</ref>

References