Image courtesy of Don Thomas
Readers and BHA members outside of Montana may have never heard of the Crazy Mountains, although that is likely to change. One of Montana’s dozen isolated “island” ranges, the Crazies lie an hour’s drive northeast of Bozeman. They offer spectacular wilderness terrain and are home to native cutthroat trout, an over-objective elk herd, deer, mountain goats and large predators galore. Their current notoriety derives not from this natural bounty, but from a heated dispute over the public’s ability to enjoy it even though most of the range lies on public land.
In November 2016, Montana resident and BHA member Rob Gregoire went elk hunting on public land in the Crazies. He walked in on Forest Service Trail 136, which runs across some private land, a common situation given the checkerboard pattern of public and private land ownership in the Crazies. (Blame the old federal railroad land grants for that!) The trail already had become a subject of contention between recreationists and private landowners on the east side of the Crazies, but prior to his hike Gregoire had spoken with District Ranger Alex Sienkiewicz, who told him that the Forest Service considered the trail public.
Gregoire didn’t find any elk that day, but he did find county law enforcement waiting for him when he returned to his rig. Gregoire received a trespassing citation, which, thanks to lobbying from the Montana outfitting industry, carries a fine of over $500 these days.
That trespassing charge brought the longstanding conflict over public access to a boiling point. Now the situation has become a matter of national significance reaching all the way to Washington, D.C. BHA has an expanding role in the matter.
Alex Sienkiewicz based his position that this trail was a public access on a century-long record of evidence establishing that the Forest Service had built and maintained the trail in just the kind of “continuous, notorious, and uninterrupted” pattern of use that establishes an unperfected prescriptive easement, which had never been abandoned. A prescriptive easement is secured by regular use and long-term use. These type of easements cannot be granted, negotiated or bartered for in any way, or acquired by fee title. They are, however, a right to use property without gaining title to ownership in any way (this is not to be confused with adverse possession, which is another legal term with a separate definition of conditions).
Forest Service memoranda that preceded Sienkiewicz’s arrival in the state confirmed that position as official policy. Yet as the Gregoire case began to draw attention, due to political pressure from private interests, Sienkiewicz was booted from his position at the USFS and assigned elsewhere.
Pressure from the small group of landowners who control – or would like to control – access to the eastern side of the Crazies was directly responsible for Sienkiewicz’s reassignment, as a USFS statement in the wake of his transfer acknowledges. That pressure eventually reached all the way to Washington.
Sienkiewicz already had drawn the ire of the local Stockgrowers Association and the Montana Outfitters and Guides Association, some of whose members offer expensive elk hunts on public lands to which they now control exclusive access. After some landowners threatened members of his staff attempting to perform routine trail maintenance, Sienkiewicz circulated an internal memo reaffirming the Forest Service position. The memo eventually wound up on Facebook, although Sienkiewicz didn’t put it there.
That memo prompted the Montana Farm Bureau to write Sen. Steve Daines in January 2017, accusing Sienkiewicz of “encouraging trespassing” and posting the memo “using his official title and authority,” although subsequent investigation confirmed that he was not responsible for the Facebook post. In May, a group of private landowners addressed similar complaints to Daines and Agriculture Secretary Sonny Perdue. In June, Sienkiewicz was reassigned. Regional USFS Supervisor Mary Erickson explained that decision: “All I can share is … it relates to ongoing issues around access in the Crazy Mountains and allegations from landowners about how Alex has navigated some of these disputes.” Two years earlier, the same supervisor had asserted, “The Forest Service maintains that it owns unperfected prescriptive rights on this trail system” – rights that Sienkiewicz was trying to defend.
In response to a Freedom of Information Act request by local public lands advocate Kat QannaYahu, Sienkiewicz supporters were able to review a letter from Rep. Pete Sessions of Texas requesting Sec. Perdue issue a directive precluding the Forest Service from pursuing prescriptive easements anywhere in the country. A major Sessions campaign donor owns ranch property near the Crazies, although there is no direct evidence that he influenced Sessions’ letter to Perdue. Given that millions of acres of public land are currently isolated by private holdings, this proposal constitutes a direct threat to hunters, anglers and other outdoor recreationists everywhere.
Meanwhile, Rob Gregoire was learning some unhappy lessons about the local system of justice. The county sheriff, the officer who had issued the citation and the county attorney prosecuting the case all had family ties to the landowner group that had complained to Daines and Perdue. Gregoire and his supporters had hoped that a not-guilty verdict on the trespass charge would establish that the trail was public, but his attorney informed him that it would not accomplish that goal. He also told Gregoire that he would not prevail at trial in Sweet Grass County, and that pursuing a change in venue would be too expensive and offer no guarantee of success. Gregoire settled for a deferred prosecution agreement seven months later and paid $500 to the Sweet Grass Community Foundation, a local charity whose treasurer is married to the county attorney. (Gregoire had previously declined a bizarre offer to settle for $250 donations to both the local Stockgrowers Association and the Montana Farm Bureau, although neither had any standing in the case.)
A number of interesting developments have transpired since then. Alex Sienkiewicz has been reinstated to his original position following intense public outcry – without apology or any attempt to restore his reputation by the Forest Service. (Supervisors had launched an internal misconduct investigation at the time of his reassignment and now refuse to discuss the matter publically out of respect for Sienkiewicz’s “privacy,” which he has never invoked.) BHA and Enhancing Montana’s Wildlife & Habitat filed FOIA requests for correspondence among USFS supervisors, Daines and Perdue that have gone unanswered for nearly a year. In a potentially encouraging turn of events, local landowners, including signatories of the infamous Daines letter, have convened a working group to explore negotiated settlements to disputed access sites. The landowners set the agenda and determined the group’s composition, which includes representatives of the Rocky Mountain Elk Foundation, Park County Environmental Council (a Livingston-based environmental group), Friends of the Crazy Mountains (a new group with particular interest in the west side of the range), and the state Fish and Game Commission. However, the names of several key players are notable for their absence. But at least people are talking to each other, and tentative progress is currently being reported on one contested access trail on the west side of the Crazies.
Working toward a common goal of improving access to the Crazies has brought together a number of groups of varying backgrounds and membership. Documenting historical trail use with specific data – who, where and when – helps establish the criteria for a prescriptive easement. Now BHA, EMWH, Public Land and Water Access Association, and the Montana Wildlife Federation have partnered on a survey that will allow hunters, anglers and other recreationists to contribute to that record by reporting their own experiences in the Crazies. This information could prove crucial if these conflicts lead to litigation. The better the documentation of continuous use, the easier it will be to establish that a legal easement exists.
While cooperation among access groups is gratifying and necessary, differences of opinion have developed – no great surprise given the complexity of the issue and the passion it arouses. More aggressive parties suggest that others are too conciliatory, while those more diplomatically inclined worry that others are being too confrontational. While each of us will have to find his or her own position along this spectrum, internal dissension among those fighting for access can only benefit those who want to lock up the Crazies.
Will the conflict wind up in court? Some of the landowners who signed the Daines letter requesting Sienkiewicz’s removal specifically reject the concept of an unperfected prescriptive easement and contend that there will never be any easement on these trails unless a court orders one. Perhaps the intense public reaction to the events described earlier has made some of them reconsider that position and come to the negotiating table. While PLWA has a remarkable record of prevailing in similar land access disputes around Montana, the group’s official policy is to go to court only as a last resort. Nonetheless, the two sides started out so far apart that a negotiated solution, no matter how desirable, would represent a remarkable triumph of diplomacy. Hopefully, we may see one on the west side of Crazies.
Why should access to the Crazy Mountains matter to BHA members who live in other parts of the country? Some wars are fought by proxy, and this is turning into one of them. We now face an unprecedented assault on the basic concepts of public land, the North American Model of Wildlife Conservation and the Public Trust Doctrine, which have allowed American citizens unparalleled enjoyment of wildlife and wild places. As most readers now realize, that attack includes the proposed transfer of all federally managed lands to private parties. A lot of eyes are focused on the Crazies now. If a handful of private landowners there can deny the public access to its own land along roads and trails that have been in continuous use for a century, locked gates and closed roads could be coming soon to a national forest near you.
Landowners closing public trails in the Crazies have consistently maintained that their position is based on defense of private property rights. I don’t know anyone in any of the advocacy groups I’ve mentioned who disputes the rights of private property owners to manage and control their own land. BHA frequently partners with private landowners and acknowledges their importance to conservation and the need to respect private property rights and promote working relationships. However, the concept of prescriptive easement is well established in our legal system, and abundant evidence supports the contention that such easements exist along many of these disputed roads and trails. Public easements simply supersede private property rights. One might also point out that many of these landowners benefit from deeply discounted livestock grazing rights and exclusive commercial outfitting permits on public lands they don’t own.
While recent progress on negotiated settlements is encouraging, it is important to realize that the problem is not confined to this mountain range. In Montana alone, PLWA, a small, all-volunteer group that struggles for funding, has successfully settled over two dozen contended access disputes through negotiation or litigation over the past two decades, and eight more are pending at the time of this writing. Success in the Crazies can help elsewhere, but we can expect the fight for public access rights to continue.
Unfortunately, expensive, divisive litigation may well be required to settle the matter. The future of hunting and fishing on public lands (which is to say, the future of hunting and fishing) may well turn on the outcome. If the public does secure the access it’s entitled to in the Crazies by whatever the means, there can be no doubt that the public outcry raised in response to the malfeasance described earlier will have been crucial. The time to get involved is now. Support the organizations, including BHA, that are defending your rights. Visit their websites. Express your opinion, make donations and inform your friends about the issues. Write to your representatives, and don’t let them hide.
As Edmund Burke wrote 300 years ago, “The only thing necessary for the triumph of evil is for good men to do nothing.” Today it might be appropriate to update “good men” to “good people,” but the principle remains unchanged.
A resident of central Montana, Don has written extensively about hunting and fishing for numerous publications. He now directs more of his attention to the politics of wildlife and wild places, simply because without them there will be no more hunting and fishing to write about – or for any of us to enjoy. This piece was published in the Spring 2018 issue of Backcountry Journal. Join BHA now to get your copy.