In the quieter months of winter and as the controversy over State land management and recreational access rears its head again, we thought our members might like to be equipped with the State lands management and access background. As Madison stated, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
Even back in the 1950s, recreationists were arguing that our Montana’s 5.2 million acres of school trust lands belonged to the public and should be open to recreational use. In 1967, the 40th Legislature, Senate Joint resolution No. 19 directed the Committee to Study the Diversified Uses of State Lands, “whose charge it was to develop means to provide for the overall use of the State-owned lands for both public recreation and agricultural pursuits.” The Committee was responsible for drafting the multiple use policy language written into statute in 1969: MCA 77-1-203. Multiple use, though written into statute, was not actually implemented, in fact, the Department of State Lands (DSL) authorized grazing and farming lessees to deny public hunting access on State school trust lands (1979). In the State’s Recreational Use Report, it wrote that the State’s allowing lessees to manage school trust land, “has resulted in a proprietary feeling among many of the lessees over ‘their’ state land.” Some farm and ranch operations were 70%, 80% and 100% school trust lands.
In 1971, the Department of State Lands began a survey – Recreational Inventory Program. The survey was to identify the types of recreational opportunities, locations of uses and general recreation potential. The survey wasn’t completed and they didn’t finish the report until 1982 – 11 years later, and still recreational access was not forthcoming.
In Oct. 1978 three Montana hunters, Jack Atcheson Sr., Jack Jones (BLM), and Steve Bayless (FWP) were sharptail hunting in Malta, north of the Milk River, on BLM land. They tried to hunt the connected “blue colored” Montana state school trust lands section on the map, only to have Mr. White (the grazing lessee), drive up in his pickup truck threatening them, “You guys get the hell off my land now!”
What exactly were those blue sections of land on the map? Wasn’t that supposed to be state public lands? And didn’t State public lands afford access? This incident sparked Jack Atcheson Sr.’s (the only one unencumbered by agency employment) quest to find out about these “blue” State school trust lands, later joined by Tony Schoonen and Jack Jones when he retired from BLM. The more these conservation hunters & anglers learned, the more they believed that Montana State public lands entitled them to public access, especially since their taxpayer dollars paid for State Lands administration – the State Land Board administration was funded by $2 million of Montana general tax payer dollars annually. The awareness they acquired spread throughout the hunting & angling recreation community, eventually leading to the recreation access we enjoy today.
How did these “blue” State lands parcels become state public lands? The U.S. Enabling Act of 1889, which was enacted on February 22, 1889, enabled the territories of North Dakota, South Dakota, Montana, and Washington to form state governments, to gain admission as states of the union, following the ratifications of their constitutions and elections of their state officers on October 1889. All of the states were subsequently admitted in November of that year.
The Enabling Act states, “That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof,… That provision shall be made for the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control… That upon the admission of each of said States into the Union sections numbered sixteen and thirty-six in every township of said proposed States, … are hereby granted to said States for the support of common schools, such indemnity lands to be selected within said States in such manner as the legislature may provide, with the approval of the Secretary of the Interior…”
Our Montana Constitution, Article X Education and Public Lands, Section 11 Public Land Trust, disposition states, “All lands of the state that have been or may be granted by congress… shall be public lands of the state. They shall be held in trust for the people…”
On March 31, 1980, Jack Atcheson Sr, Jack Jones, Tony Schoonen and some of the Skyline Sportsmen Association from Butte, created and filed the Montana Coalition for Access on State Public Lands, Inc. About a month later, seeing other issues with State Lands administration than just access, they changed their name to Montana Coalition for Appropriate Management of State Lands, Inc. On April 14, 1980, Tom Bugni and Jerry Manley leading, joined by Tony Schoonen and others from the Skyline Sportsmen Assoc., formed another coalition, the Montana Coalition for Stream Access, Inc. It was decided to first pursue Stream Access, which became law in 1985 (read: Did You Know You Have A Public Trust Duty? A Short History of Your Montana’s Stream Access Law).
With growing demand by public hunters & anglers to state lands, sportsmen were confronted with lessees not only denying access, but charging them a fee for access to state owned land. The State’s Recreational Use Report cited, “In some cases complaints were made that landowners were blocking access to isolated tracts of federal lands by posting adjoining state lands against trespass.”
In 1982, the State Land Department, continuing to ignore the recreationist multiple use policy in statute, sent a letter to all lessees of state lands that some lessees of grazing or agricultural land were, “under a misunderstanding concerning hunting access rights on state trust land…the state has not issued hunting access rights on any state trust land and that the grazing or agricultural lessee could prevent unauthorized trespass on state land by hunters, but could not charge for hunting access without jeopardizing the lease.”
Sportsmen, complaining about the hunting exclusivity on state trust lands by lessees, prompted the DSL in 1985 to address the hypocrisy – “The Board has reserved hunting and fishing access. Strictly speaking no one is allowed to hunt or fish state land. However, it is not realistic to expect the lessee to keep everyone off. The lessee may post the lease to protect his leasehold interest. If it is posted no one, including the lessee may hunt on the lease. The lessee may allow hunting on the tract. However, if hunting is allowed, everyone must be allowed to hunt. The lessee may require everyone to check in before going on the tract to keep track of who is on it. However, no one may be denied. The lessee may not charge for hunting. All evidence that a lessee is charging for hunting should be submitted to the Department. The evidence will be pursued, and if there is sufficient evidence, the lease will be canceled.”
The Montana Coalition for Appropriate Management of State Lands, Inc. hired Jim Goetz, an attorney from Bozeman. In February 1988, the Coalition filed a lawsuit against Montana’s Department of State Lands and the State Land Board, at the district court in Helena, for failure to comply with the Enabling Act, the State Constitution, State laws, policies and the Montana Multiple Use Act.
Lessees pushed against public access by stating, “increased traffic would bring increased weeds, erosion, fire, vandalism, litter, unwanted roads, trespass on private lands, increased administrative burdens and greater overall risk to them.” They wanted the State to charge for access to compensate lessees.
The Coalition pushed back on ground conditions in the suit, by demanding the Department prepare an environmental impact statement on it’s grazing lease program. To push back on access fees, the Coalition alleged, if the State must charge for recreational access, it must develop a system of availability of state lands and compensation secured, as well as enforcing the minimum rates for grazing land be increased. The Montana Stockgrowers Association, Montana Farm Bureau Federation and individuals intervened as defendants.
The State Land Board is comprised of 5 elected officials; in 1988 they were: Governor Ted Schwinden (D), Attorney General Mike Greely (D), Secretary of State Jim Waltermire (R), State Superintendent of Public Instruction Ed Argenbright (R), and State Auditor Andrea Bennett (R). Negotiations were off and on for more than a year. In July 1990, the time of the first trial date, the Land Board consisted of Governor Stan Stephens (R), Attorney General Marc Racicot (R), Secretary of State Mike Cooney (D), State Superintendent of Public Instruction Nancy Keenan (D), and State Auditor Andrea Bennett (R).
The Coalition lawsuit was problematic for ag state lands issues, this would open up a can of worms most would not want opened, increasing polarization of public lands management. Some members of the ag public worried that if this case went to trial, it would be “Stream Access” all over again. One worried, “A sportsmen’s coalition has filed suit to open public lands and the courts could make any future action by the Land Board or the Legislature moot.”
This lawsuit certainly increased the conversation and scrutiny about state land management. Educated sportsmen began providing documentation that further evidenced the State’s mismanagement of our state public lands, especially funding schools, and the contradicting lack of access. Major points brought up were:
*10 other western states had public access without cost, Montana didn’t even have access, though it was technically on the books.
*Our state taxpayers funded the General Fund, which paid about 50% of the DSL’s budget. Bob Bugni with the Prickly Pear Sportsmen Association articulated, “Isn’t it ironic that recreational access by the general public has been delayed since the 1960’s. But the general public has been paying the tab all along.”
*Examples were provided of grazing leases for as little as little as $2.70 an AUM and in 1987 some leases went for 27 cents an AUM, leases were posted while lessees and their friends hunted, leases were illegally subleased. The 1983 Performance Audit showed that grazing rates were not maximized to fund the schools, nor did the Department seek competitive bids on state leases. The Butte Standard ran an article pointing out the Department of State Land’s (DSL) grazing leases were not fair market value, in fact, there was an estimated loss between $3.5 million to $5.2 million.
*Knapweed, part of the “weeds” argument, was introduced to eastern Montana through a large shipment of contaminated seed and hay from western Montana, during a drought in 1984 and 1985. Skyline President William Patrick sent repeated written requests of knapweed statistics to MT’s Department of Agriculture, receiving no reply. He also asked, “Much is being said these days about the recreation sites spreading knapweed. Since recreational use of state land has been extremely limited, what is the source of knapweed on state land?”
*70% of state land leases were nonresident landowners/lessees. Examples were provided, such as, “In Tom Miner Basin, Bruce Malcolm of Dunavant Enterprises, Inc. (owned by William B. Dunavant from Tennessee) leases one section of State school land, which is blocked to the public. By blocking this one section of public land, thousands of acres of Forest Service are blocked also. Only his wealthy clients have use of these lands.”
*In a 1987 request to the Department of Revenue about the exclusive use of state public lands posted against trespassing should be subject to taxation under 15-24-1203 privilege use tax, the Administrator of the Property Assessment Division, Greg Groepper, replied, “If an individual enjoys the exclusive use of public land which is otherwise tax exempt, then our responsibility is to assess privilege use tax under 15-24-1203, MCA.” In the example provided of the grazing lease posted against trespass, Groepper replied, “If that is the case, it would be my judgment that land should be subject to privilege use tax.”
The Legislative Auditors 1991 report on the Department of State Lands not only found that below fair market grazing rates were not maximizing income to the trust fund, but asked the question, “Are trust lands to support public schools or to subsidize agriculture?” The Audit further stated that MCA 77-1-203 required the department to manage state lands under the multiple use management concept, which involves, “using all the various resources of the lands in the combination that best meets the needs of the people and the beneficiaries of the trust. If a parcel with one classification, for example grazing, has other multiple uses or resource values, then it should be managed to maintain or enhance these multiple-use values. Other multiple uses include recreation use, wildlife use and public use.”
Rep. Ben Cohen would rightly state during the 1991 legislature, that he was concerned that HB 778 is a broader invasion of the Sage Brush Rebellion, recommended amending the bill to the way it was on the House Floor, as it recognized the right of the people to free recreational use.
In October 1989 the State Land Board directed the Department to explore parameters for settlement of the Coalitions suit.
On behalf of the Coalition, Goetz tried to negotiate a settlement with the agriculture groups, which proved fruitless; in 1990 settlement negotiations broke down leaving the Coalition with no choice but to go to court. The trial was originally slated for July 1990, but the State District Court recommended the parties address the issue through legislation, the Coalition opted to try again, the trial was moved to April 22, 1991.
Beginning in May 1990, the Commissioner of State Lands held public meetings in Glasgow, Miles City, Billings, Great Falls, Butte, Bozeman, Kalispell and Missoula to determine what decisions should be made and how they should be implemented. The Commissioner then reported his findings to the Land Board on August 1990, suggesting alternative recreational access programs that the Board could adopt.
The Board instructed the Commissioner to perform a 30 day environmental assessment under the Montana Environmental Policy Act (MEPA). The Board intended, after the assessment process was completed, to choose one of the alternatives, then seek the necessary funding and legislation. However, since the process required the more extensive formal Environmental Impact Statement (EIS), they could not more forward in that direction. The Legislature would now need to appropriate $250,000, the money would not be available until after July 1 – after the Legislature adjourned, which would extend the process out to 1993 – a 3 year delay.
Atcheson Sr. stated that decision was made with assurances that some sort of access arrangement to state owned lease lands would be made by this fall or next. Now the Land Board had pushed any administrative/legislative decision back to mid 1993. “We think they lied to us, this is a breach of faith by the government. We will proceed with all the rigors of the original suit, including a requirement that ‘fair market value’ be returned by the state school trust lands.” The Coalition also wanted an EIS conducted to see the impact of grazing on state lands.
The Coalition lawsuit stated, “It is the position of the plaintiff that judicial action is necessary to compel the state defendants to administer the public lands of the State of Montana according to the requirements of the Montana Constitution and the Multiple Use Act, MCA 77-1-203. As demonstrated below, the DSL and the Board have long stifled public efforts to get those departments to manage the state public lands on a multiple use basis and to allow public recreational use. For years, the agencies have promised one thing (that they were developing a meaningful recreational inventory and working on a program to accomplish public access) and done another. They have bureaucratically stifled any progress on public access.”
In 1991 Representative Dave Brown, of District 72 Butte-Silver Bow, introduced two bills to address the State lands recreation access: HB 401 and HB 778.
HB 401 authorized the State Land Board to implement various programs, it was eventually tabled, with portions merged with HB 778.
HB 778 was in response to Marc Racicot, the State Attorney General’s failure to strictly interpret the statue regarding this issue. “HB 778 declares by statute that all state lands are open to recreational use in the State. It allows the State Lands Board to close any section it deems appropriate to close, such as cropland, cabin sites, wildlife habitat and isolated sections within private property.”
Rep. Brown commented that HB 778 was, “a fragile compromise, but is a step forward.” Secretary of State, Mike Cooney, voiced this was the most important issue to people during his 1988 campaign, he believed HB 778 was a step in the right direction, a very valuable compromise. In a joint guest editorial by Cooney and Marc Racicot, they stated, “… it is important to recognize that school trust lands are meant to benefit all the people of Montana.”
After the merging of HB 401, HB 778’s final version stated it was, “An act revising the laws relating to the use of state lands; providing that allowable use of state lands includes general recreational use by the public; requiring the Board of Land Commissioners to adopt rules to authorize and govern the recreational use and closure of state lands; requiring purchase and possession of a recreational use license by persons 12 years of age or older for the general recreational use of state lands; providing for the enforcement of the license requirement by the wardens of the Department of Fish, Wildlife, and Parks; providing penalties; providing for the statutory appropriation of the license fees and penalties; providing compensation for damage to a lessees improvements, growing crops and livestock; and providing a delayed effective date.”
During the House committees, they struck from the “general recreation” definition- “swimming, boating, rafting, tubing, camping, picnicking, hiking, nature study, photography, bird watching, water skiing, horseback riding, winter sports, viewing & enjoying historical or scenic sites.” They defined hunting & fishing as general recreation, other uses as special.
HB 778’s 3rd House reading passed with a vote of 65 to 32; passing the Senate 49 to 0.
On April 25, 1991 Governor Stevens sign HB 778 into law, making the effective date March 1, 1992.
HB 2, which also passed in 1991, directed an economic study to be performed by the DSL of “surface uses of state lands, with emphasis on recreation uses…” “The study of recreational uses must be performed by an economist with experience in analysis of the economic values of recreation.” This legislature allocated $250,000 for the study. The Study was presented at the February 3rd 1993 Land Board Meeting. Some of the takeaways from the study were that too many people did not even know there was recreational access to school trust lands or that they could buy a State Recreation license, some wanted additional forms of general recreation and some still adamantly felt the public should not have to pay for access already paid for by state taxes.
In 1993 recreationists continued the fight on State trust lands. A number of hunting/angling groups orchestrated petitions to have 4 Administrative Rules changed addressed in the April Land Board meeting minutes: Expand the General Recreation definition to include the original forms of outdoor recreation, such as camping, hiking, berry & mushroom picking, horseback riding, photography, etc; Recognize roads and vehicle use; State parcels involved with FWP Block Management agreements should not be restricted differently than other public lands; Drop the posting of State lands with orange paint, reserved for private property. The Land Board set a meeting in May to address the petitions.
In June the Land Board directed the Department to proceed with the formal rule making for the amendment of the 4 ARM rules. The Commissioner reworded the language in the recreation petitions, removing much of what the over 2000 signature petitions advocated, such as removing camping from the General Recreation definition. Hearings were held in Polson, Great Falls, Bozeman and Circle, with the public comment period ending on Aug. 16th. The Department received 1,255 oral and written comments, the majority of which supported the ARM amendments, even writing camping back into the ARM amendment.
In September, refuting the erroneous statement that sportsmen were satisfied with the rules as they were, Stan Fraiser stated, “The sportsmen’s groups have never been satisfied with the rules. The Department of State Lands and the previous Land Board went out of their way to subvert the intent of HB 778. It states quite clearly that the intent of that bill is that state school trust lands be opened up to the public to the greatest extent possible. The Board must decide today either to do what House Bill 778 says and open up either public land to the public or once again cave in to the stockgrowers.” Greg Hester pointed out that when a petition was submitted to the Board it was supposed to be acted on within 60 days – the entire process no more than 8 months. It had been 8 months since the original petition submission and they still did not have a rule change. Another sportsmen pointed out a Montana Supreme Court case between an individual lessee bidding for a lease, versus a grazing district, in which the Supreme Court ruled that the State cannot delegate management authority of State lands to the lessee. Agriculture lessees responded by closing nearly two million acres of private land to recreationists. They timed the closures to occur during the peak fall hunting season. The reality is that many of those lands had already been closed to the public recreationists.
Between November 1993 and January 1994, a committee assigned by Gov. Racicot labored over agreements. In March and July 1994 the Administrative Rules adopted the revised rules. Instead of listing all the different types of General Recreation (which were restored) in 36.25.145 (then 26.3.180), preventing the need to administratively amend each time a new recreational use wanted inclusion, the rules are generally inclusive and simply list what you can’t do on State lands – “General recreational use” means non-concentrated, non-commercial recreational activity”. The orange paint for closures was changed in 36.25.150 to, “Except for closure for fire danger pursuant to (1) (e) , the lessee shall post categorically closed lands at all customary access points with signs provided by the department or duplicated from signs provided by the department.” Vehicles and roads were restricted to – 36.25.149 federal roads, state roads, dedicated county roads, other county roads that are regularly maintained by the county and those roads on state lands that are designated by the department as open for motor vehicle use. New rules involving Block Management were addressed under 36.25.163, not really changing anything as they used the word “may”, instead of “shall” or “must”, “State lands may be enrolled in block management areas”.
While many hunters/anglers and other recreationists enjoy the benefits of some increased recreational access on our State school trust lands, it was paid for dearly, primarily by Jack Atcheson Sr. who personally contributed about $150,000 and Tony Schoonen who contributed $15,000, as well as the research, time and advocacy efforts by additional conservation hunters/anglers such as Jack Jones, Paul Berg, Bill Holdorf, Gary Sturm, John Gibson and Allan Rollo, to name just a handful.
Disappointingly, the state trust lands battle does not have the victories that Stream Access has enjoyed. There are still implementation issues with recreational access on State trust lands, as well as the original conflicts brought up by the Coalition. A Recreational Inventory of State lands has not been produced and the person in charge of recreation is the ag/grazing management administrator. Far too many public recreationists are unaware of recreation opportunities on State lands, or holding State Trust Lands management accountable or standing firm for those hard fought rights.
In FY 2015, 498,556 conservation licenses were sold generating $997,112 in gross revenue. A total of 6,558 general recreational use licenses were sold with revenues of $72,361. Special recreational use licenses generated $163,629. Not to belabor the point, but as the Coalition members and other recreationists have pointed out time and again, Montanans pay into the general fund, which pays for State land management administration; as hunters/anglers, we pay a second time when we purchase our base hunting license, of which $2 dollars goes towards State lands for hunting and fishing only; if you wish to do any other form of general recreation on State lands, if you are between 17 and 60 years old, you would need to purchase an additional license, good from March to February of the next year, for $10. On top of that, your recreation use may fall under the “special” category, requiring yet another license.
As recreationists, it looks like we have our State lands management work cut out for us.
We owe a debt to those who began this decades long battle and have continued the process, though many were unaware. Perhaps, this State management and access history will assist the public in overseeing and demanding the lawfully required administration of these school trust lands, as well as utilizing and defending our recreational opportunities on the 5.2 million acres, which our Constitution states, “…shall be public lands of the state. They shall be held in trust for the people…” – all the people of Montana!
History compiled from interviews with Jack Atcheson Sr., Tony Schoonen, Jack Jones, and Stan Fraiser; Montana Legislative History, Chapter 609 1991 HB 778; Senate Judiciary Committee minutes and exhibits, April 10, 1991; Montana House of Representatives, Committee of Natural Resources, HB 401 minutes and exhibits, February 18, 1991; Senate Judiciary HB 778 minutes and exhibits, April 10, 1991; Final Status of Natural Resources Legislation in the 52nd Montana Legislature, November 1, 1991; Montana Law Review, Issue 2, Summer 1999 – Negotiated Rulemaking: Involving Citizens in Public Decisions; Department Of Natural Resources Board of Land Commissioners Meeting Minutes 1993, 1994; The U.S. Enabling Act of 1889, Montana Secretary of State Trust Land Amendment changes, March and July 1994, Montana DNRC Trust Lands Management Division – Annual Report FY 2015.