1. Why did BHA initiate legal action against the U.S. Forest Service?
BHA’s letter requests a meeting with the U.S. Forest Service to discuss BHA’s concerns and come to a mutually agreeable resolution in a timely fashion. We feel this is an important first step before filing a lawsuit. Time is of the essence, however. The status quo is unacceptable. The Service’s inaction has allowed illegal obstruction of access on historic and public trails in the Crazies used by BHA members and supporters.
If the Forest Service fails to provide a meaningful response and/or propose a timely solution, BHA will be compelled to go to court. In so doing, BHA will assert that the Service has failed and continues to fail to protect and maintain public access on public trails in the Crazy Mountains, as required by the National Forest Management Act, NFMA’s implementing regulations, and the Service’s own policy, forest plan, and 2006 travel plan. BHA also will ask that the Service be required to evaluate the impacts and alternatives to a proposed trail re-route before conducting on-the-ground activity and before relinquishing the public’s right to access historic trails, as required by the National Environmental Policy Act. More analysis and transparency is needed.
2. Why does BHA care about public access in the Crazy Mountains?
Insufficient access is the No. 1 reason cited by sportsmen and women for forgoing time afield, and BHA’s mission is dedicated to sustaining and expanding opportunities for the public to access places to hunt, fish and enjoy the outdoors.
Located an hour’s drive north of Bozeman, Montana, the Crazy Mountains encompass prime backcountry lands and waters, providing habitat to elk, whitetails and mule deer, mountain goats and robust predator populations, as well as healthy native trout fisheries. Public access opportunities, however, have caused friction between public lands users and private landowners ever since “checkerboard” tracts were transferred from the federal government to railroads in the 1800s and ultimately to private ownership.
BHA members, supporters and staff who rely on access opportunities in the Crazy Mountains have been and continue to be confronted with locked gates on public trails, “no forest service access” where historic access has existed, improperly placed “no trespassing” signs, “permission required” for public trails and “keep out” signs at public trailheads and along public trails. In addition, they have encountered downed fences, brush piles in the middle of public trails, spots where National Forest signs and trail markers have been removed, and intimidation from landowners, all on well-known public trails they have used for decades.
These actions have had a negative effect on members of the public and their confidence in using public trails in the Crazy Mountains. Some are concerned for their safety. Others are simply unwilling to deal with the hassle and intimidation from landowners or risk the confrontation and consequences (including a potential trespass citation – valid or not) that comes with climbing an illegal fence or cutting an illegal lock on an illegal gate on our public trails.
3. What is the Forest Service’s obligation regarding upholding public access to public lands, including those in the Crazies?
The five trails noted in BHA’s letter are well-known, historic, public trails that have been and continue to be properly identified by the Service as “public trails.” They are maintained by the Service and appear on all forest plan and visitor maps of the Crazy Mountains. The five trails also are discussed and displayed in the Service’s most recent 2006 travel plan and related maps. As such, the Service has a legal obligation pursuant to NFMA, NFMA’s implementing regulations, and its own forest and travel plans and policy to do the following:
(a) protect and defend the public’s use and access on these public trails; and
(b) resolve any disputes concerning access on such trails as soon as is feasible. At present, the Service is failing to protect existing access rights on contested trails, failing to take action necessary to defend such rights, and failing to resolve such disputes in a timely fashion.
4. How did the Forest Service fail to uphold its mandate?
BHA’s lawsuit targets the Service’s decisions and related failure to protect, defend and restore public access to public lands in the Crazy Mountains on five specific trails:
(a) the Lowline Porcupine trail (No. 267) and the Elk Creek trail (No. 195) on the west side; and
(b) the Sweetgrass trail (No. 122), East Trunk trail (No. 136, formerly No. 115), and the Swamp Lake trail (No. 43) on the east side.
The public has a right to access each of these five trails. When the Northern Pacific Railroad deeded its sections of the checkerboard land to private parties, on both the west side and east side of the Crazies, an easement for “public use” of these five existing routes across the property was expressly reserved.
Furthermore, each of these five trails was built, maintained and mapped by the Service well before private land ownership occurred in the region. These five trails have been maintained and continuously used by Service employees and rangers for administrative purposes (timber sales, grazing, public access) and members of the public to access National Forest lands in the Crazies for hunting, hiking and other recreational pursuits. This is well documented by the Service.
During the 1987 forest planning process and, more recently, upon issuance of the 2006 travel plan for the Crazy Mountains, all five of these trails were analyzed, mapped and included in the 2006 travel plan as public trails (and roads) open to public access.
5. Why is BHA initiating legal action now?
The Forest Service is aware that the five trails at question are public and that the Service likely has a record easement for such trails (from the railroad deeds) and – at the very least – “retains a prescriptive easement” on each of the trails. The Service is also aware that these five trails are being “illegally” obstructed or blocked at various access points.
To date, however, the Service has not taken meaningful steps to address illegal obstructions, even though it now concedes it is a problem that is getting worse and becoming “increasingly common” across the Custer Gallatin National Forest and the Northern Region.
Importantly, while negotiations with stakeholders, including landowners, on both the west side and east side of the Crazy Mountains continue (and while public access continues to be obstructed), landowners vested in eliminating public access are actively engaging in efforts to undermine the public’s ability to assert its rights to use the trails.
6. What is the purpose of the BHA litigation?
Should it officially file suit, BHA would challenge the Service’s decision to forgo new NEPA on the west side of the Crazies for a proposed trail re-route and, relatedly, pursue additional claims on both the west side and east side for non-compliance with NFMA, NFMA’s implementing regulations, the forest plan, 2006 travel plan, and the Service’s own directives and policy, all of which impose a duty on the Service to protect and defend public access to our public lands in the Crazy Mountains.
Before relinquishing the public’s access rights on the west side and building new trails in important big game habitat, the Service should consider input from the public, consider the direct, indirect and cumulative effects of its decision, and carefully evaluate all reasonable alternatives to the action. This has not occurred, and BHA will ask for such a review from the court. BHA also will ask the court for an order stating the following:
(a) affirming and declaring each of the five trails to be a public, Service trail; and
(b) ordering the Service to take all reasonable and necessary steps to ensure each trail remains open and available for public use.
7. Is BHA working with the Forest Service to resolve the problem?
BHA’s letter to the Forest Service represents an attempt to work with the Service on this issue. BHA has attempted to participate in its process regarding the west side trails until that process ended. BHA’s letter invites the Service to meet and discuss – and hopefully resolve – these issues with regional leadership and personnel. These trails have been improperly blocked for more than two years, and the collaborative processes currently underway have not resulted in the opening of trails. Access disputes in the Crazies go back at least 50 years. This scenario is not acceptable, and BHA will use any means necessary, including litigation, to make sure that the public has legal access to public lands.
8. Why isn’t BHA working with private landowners to resolve the problem?
BHA respects property rights, both private and public. BHA believes that the Forest Service has a duty to work with the public and private landowners to ensure that the public has legal access to public land, especially in the cases where easements cross private land. The Service has made clear in its historic travel plans and documents that these easements exist and the trails are public, and we expect the Service to do its job in keeping these trails open.
9. Did BHA exhaust administrative remedies before undertaking legal action?
Yes. BHA representatives attempted to participate in every public process regarding the Crazies that has been made available to the organization.
10. How would BHA prefer to see public access managed in the Crazy Mountains?
BHA would like to see the Service return to its practice of enforcing the public’s right to legally access public lands. This includes adhering to its own procedures and the law, up to and including filing statements of interest, especially in cases where the Service has a clear and unambiguous history of identifying trails as public that subsequently have been illegally blocked by private citizens.
Still have questions? Please contact the Montana Chapter of Backcountry Hunters & Anglers.