By Brett French - June 11, 2019 - Originally published in the Billings Gazette

In an attempt to force the Custer Gallatin National Forest to assert a claim to public access on four Crazy Mountain trails, a coalition of outdoor groups filed a lawsuit in Billings District Court on Monday against the agency.

“We’re hoping the Forest Service follows its own regulations in administering this area,” said Kathryn QannaYahu, of Enhancing Montana's Wildlife & Habitat. She has done a large portion of the historical research for the case.

The lawsuit, drafted by the Western Environmental Law Center in Helena, contends the agency has failed to protect and defend public access rights in the south-central Montana mountain range which is checkerboarded with private land. The groups had threatened to sue in February unless the agency worked with them on their concerns.

"We haven’t seen the actual complaint yet and can’t comment on the merits of the lawsuit," said Marna Daley, forest spokeswoman, in an email. "However, the Forest Service believes we have taken major steps forward to securing long-term public access in the Crazy Mountains through many efforts."

4 trails

The coalition has identified four trails into the Crazy Mountains that it contends are legal routes for the public but are now illegally blocked by private landowners. The trails are: Lowline Porcupine Trail (No. 267); Elk Creek Trail (No. 195); Sweetgrass Trail (No. 122); and East Trunk Trail (No. 136, formerly No. 115).

“These four National Forest System trails were established in the Crazy Mountains in the late 1800s and early 1900s,” the lawsuit stated. “Since then, they have been managed, maintained and used by Service employees for official and administrative purposes. The four trails have also been used by Plaintiffs and other members of the public for commercial and/or recreational activities.”

Members of the coalition include Friends of the Crazy Mountains, the Montana Chapter of Backcountry Hunters and Anglers, Enhancing Montana's Wildlife & Habitat, and the Skyline Sportsmen Association.

The lawsuit is asking the court: to declare the Forest Service has violated and continues to violate the law; has no authority to relinquish the public’s access rights and easement interests on the Porcupine Lowline trail and on portions of the Elk Creek trail; to set aside the agency’s decision to approve the west-side trail project and remand the matter back to the Forest Service with instructions to comply with environmental laws; and direct the agency to comply with the travel rule, travel plan, forest plan, and its own direction and policy.

Reactions

The lawsuit is in part due to the treatment of a Livingston-based district forest ranger who in 2017 was temporarily reassigned, investigated and finally reinstated following criticism of his advocacy for public access to the Crazies. Sen. Steve Daines stepped into that fray admonishing the ranger and warning the agency that the ranger’s tactics seemed to be promoting “controversy and aggressive action.”

The lawsuit claims that following the brouhaha the Forest Service “decided to stop managing the four trails as National Forest System trails.” The suit also lays out a long paper trail showing how, prior to the blowup, the agency had for years been defending public access on trails like the Lowline Porcupine and East Trunk despite some landowners' attempts to “obstruct, interrupt, and block public access.”

“Forest Service leadership has stated that these trails are public, yet somewhere along the line their tune changed,” said John Sullivan, chair of the Montana chapter of Backcountry Hunters & Anglers, in a press release. “We have no intention of standing idly by while this faction engages in the very behavior it has deemed irresponsible.”

New trail

The legal action comes as the Custer Gallatin National Forest has begun work with an adjoining landowner to create an alternate route for the Lowline Porcupine Trail on the west side of the Crazy Mountains. The first phase of building the new trail was scheduled to begin in July. For now that work will move forward, Daley said.

The outdoor groups have criticized the new trail, saying it was created without public involvement, requires a steeper trail and unnecessarily replaces a route to which the Forest Service already had historical access. They also say the trail is being proposed without proper environmental review. The Forest Service has contended environmental review of the trail was already done under the forest and travel plans.

"The upper levels of the Forest Service chose not to respond or address our local public access concerns and repeated complaints of obstruction,” said Brad Wilson of Friends of the Crazy Mountains, a retired Park County assistant road supervisor and deputy sheriff, in a press release. “Due to the Forest Service’s negligence, we had no choice but to appeal to the court.”

Daley characterizes the Forest Service's actions differently.

"Our highest priority project is a negotiated reroute of the old Porcupine Lowline trail to provide a trail that is principally on National Forest System lands with donated easements from the landowner," she said. "We are also working on a land exchange proposal in the South Crazies, which will address land consolidation and trail access issues. On the eastern side of the Crazies, we are in continuing discussions with multiple landowners around a complex proposal using the management tools of land exchanges and easements to provide long-term public trail access. The agency believes that working respectfully toward collaborative solutions that address landowner and stakeholder interests is always the best approach when possible."

The access groups say that since negotiations with landowners began, “The Service is also tolerating the landowners’ illegal gates, fencing, ‘no trespassing’ signs and obstruction efforts. The Service has also stopped informing the public about its public access rights on the four National Forest System trails.”

Old lawsuit

To bolster their claim that the Forest Service and public already have access, QannaYahu has unearthed a 1948 lawsuit the Forest Service filed against a Crazy Mountain landowner after he repeatedly blocked access on a road along Big Timber Creek, the only public access that now exists on the east side of the Crazies.

In that case, the Forest Service pointed to historic Northern Pacific Railroad documents. The federal government deeded 50,000 acres in the Crazies to the railroad when it built its rail line westward in the late 1800s and early 1900s. Those lands specifically reserved in their deeds “an easement in the public” for “any public roads heretofore laid out or established, and now existing over and across any part of the premises,” the lawsuit contends.

The Forest Service had argued a similar stance in its 1948 lawsuit, which wasn’t settled until 1954 when the landowner finally agreed to grant a public easement.

“That 1948 case is totally predicated on that railroad grant language,” QannaYahu said.

The lawsuit also argues that the Forest Service has recognized the trails and access roads in its forest management and travel plans.

“Following publication of the forest plan’s travel map, all forest visitor maps subsequently issued for the Crazy Mountains show the four National Forest System trails open for use and subject to forest plan and travel management regulations,” the lawsuit contends.