Supreme Court weighs legislative say-so for land conservation

By Scott Lauck
BridgeTower Media Newswires
 
ST. LOUIS, MO — The Missouri Supreme Court is debating whether the state legislature still retains some power over the Department of Conservation’s purse.

In 2020, lawmakers appropriated $21 million for conservation purposes but removed from the bill language allowing the money to be used for “land acquisition” or “financial assistance to other public agencies.” Such language had routinely appeared in the department’s budget bills in previous years.

As a result, the department was unable to complete its intended $1 million purchase of 510 acres of prairie intended to expand the Linscomb Wildlife Area in St. Clair County.

If it had been another agency, that might have been the end of its land purchasing authority during that fiscal year. However, the Conservation Department —and its funding — were created by a series of constitutional amendments to stand outside the normal give-and-take of the state budget process.

In arguments before the Supreme Court on Oct. 20, the Missouri Attorney General’s Office defended the legislature’s move, arguing that lawmakers still must appropriate funds for the otherwise independent agency to use them.

But an attorney for the department’s governing Conservation Commission argued that allowing lawmakers to cut off its purchasing ability undermined the purpose that voters had in mind when they created it.

“It would wrongly elevate the General Assembly’s authority over the people’s authority to amend the constitution as they did,” said Heidi Vollet of Cook, Vetter, Doerhoff & Landwehr in Jefferson City.

The Conservation Commission resulted from a 1936 amendment to the Missouri Constitution. Among its powers was to acquire property by purchase, gift and eminent domain. Its funding was to be used “for the control, management, restoration, conservation and regulation” of conservation matters and “for no other purpose.”

Voters further refined the department’s scope in 1976 by passing an 0.125 percent sales tax that is dedicated to conservation funding. And in 1980, a third amendment allowed the department to make payments to local governments to offset the loss of property tax revenue that occurred when land was turned over to conservation purposes.

“Given the broad power granted to the Conservation Commission in these various amendments that were initiated by the people, could we determine that this appropriation was impliedly mandated by the constitution?” asked Judge Mary R. Russell.

Deputy Solicitor General Jesus Osete argued that the change lawmakers made to the budget bill wasn’t inconsistent with the constitution. For instance, he said, the constitution declares that funds for the state road fund “stand appropriated” without further action of the legislature.

But Vollet argued that the conservation-related amendments operate as a “constitutional appropriation” of the money, indicating that voters themselves had authorized the expenditures.

“Who are they authorizing?” Judge W. Brent Powell asked, noting that the department’s money still has to flow from the state treasury to the commission.

Judge Zel M. Fischer asked what would happen if the legislature cut off the department’s purchasing authority for years, allowing money from the sales tax to pile up indefinitely. Osete said “theoretically and as a matter of law” that could happen. But, he added, the land acquisition appropriation was restored in this year’s budget bill, and there was no evidence that lawmakers were trying to eliminate the commission.

“If they want to take away that discretion, the constitution and your honors’ precedents give them a way to do that,” Osete said. “They can create language, submit to the voters and get it approved.”

The case drew an amicus brief from the Conservation Federation of Missouri, represented by former Gov. Jay Nixon, now of Dowd Bennett. Nixon, recounting various attempts by lawmakers over the decades to increase their control over conservation matters, wrote that the purpose of the conservation amendments was to insulate natural resources from political whims.

“Mother nature does not have term limits. The Missouri Legislature does,” Nixon wrote. He added: “The stakes of this case are higher than the two items the General Assembly attempted to carve out of the Commission’s budget.
The Commission and Department as we know them are at risk. As are the forests, habitats, and wildlife they oversee. Decades of progress for Missouri’s outdoors are on the line.”