The Fight for Public Land in Montana’s Crazy Mountains by Chris Solomon

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by Chris Solomon, Outside Magazine

“The Crazy Mountains—brief, tall, rugged—resemble a crown that a careless ruler has dropped among the sage. Lakes of golden trout sit in the lap of their rugged cirques. Elk bugle in uncrowded forests. In the Last Best Place, they are one of the last best places.

The problem is, you increasingly can’t get there.

In the last 18 months, long-simmering disputes have boiled over amid claims of trespassing, political meddling, government bullying, and retaliation. Some worry that what’s happening there may harbinger what’s to come on public land across the nation. It’s enough to call the situation, well, you know…

For the past eight years, the main defender of those public-access corridors has been Alex Sienkiewicz, the district ranger for the million-acre Yellowstone District, which encompasses most of the Crazies. Every year since he started his job, in 2011, Sienkiewicz, who has a law degree, reminded his staff not to sign in or ask permission to use many of the trails around the Crazies. The Forest Service’s stance is that the agency possesses historic access to many of these routes. Signing in or asking permission could later be used in court to show that the public had given up its right to access, Sienkiewicz told his staff in memos…

Across the nation, trails cross private land to reach public places. Very often, no legal document exists in these instances giving the public the right to do so. This doesn’t mean the public is in the wrong, though. That’s thanks to a legal concept called ‘prescriptive easement.’ The idea, which dates to centuries-old English common law, allows the public to access another’s property if that access has been known, open, and continually used over a certain period of time. (In Montana, it’s five continuous years.) Under a prescriptive easement, the public doesn’t have to pay to access the land, nor ask for permission (hence Sienkiewicz ordering his staff not to sign ranchers’ logbooks)…

And so Sienkiewicz appeared to be doing what the job called for. Take a 2002 briefing by the then-Gallatin National Forest—one of many documents Outside links to in this story that were obtained through a public records request by Kathryn QannaYahu, a hunter, angler, and self-described ‘public trust advocate.’ That document said it was ‘critical’ for the forest to maintain its trail system across private lands, to defend historic trail access rights if challenged,’ and to legally ‘perfect’ such rights ‘whenever that opportunity exists.’ (Roughly put, ‘perfected’ means that the access has been filed in documents at a courthouse. Disagreements are much more likely to arise from ‘unperfected’ access.) The paper also called on the forest to ‘take prompt action in the event that landowners take action or threaten to close or obliterate the trail.’… Prescriptive easements exist in countless places nationwide, says advocate QannaYahu. Such a change would, in the name of private property rights, restrict public access in large swaths of the nation, she says. ‘This is a huge land grab.’…

Meanwhile, the Public Lands / Water Access Association, a group that fights for public access in Montana, is gathering information about historic access to various Crazies trails. ‘I know there’s lots of evidence there. We’ll get it,’ says Bernard Lea, the group’s president and a former Forest Service realty specialist who’s spent hours digging through musty courthouse records. When his group finds historical documentation proving access, Lea says that courts ‘have ruled in our favor, almost every time.’ ”

 

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