Personnel, politics and public access to public lands


Yes, it looks like Forest Service employees should be concerned about how Trump might affect their careers.  Here’s an example about offending private landowners who block access to national forests.  (And, without any facts beyond earlier stories, I’ll suggest that you not think of these as long-term rural residents, but more likely some recent, possibly seasonal transplants, with money and political connections.)

Here’s one version of the story from a private property rights promoter:

Such cooperation, however, changed under the Obama administration as the Forest Service took a more strident approach in asserting claims to “traditional public access” routes. The dramatic change is reflected in a posting by Yellowstone District Ranger Alex Sienkiewicz who publicly advocated “NEVER ask permission to access the National Forest Service through a traditional route shown on our maps EVEN if that route crosses private land. NEVER ASK PERMISSION; NEVER SIGN IN. … By asking permission, one undermines public access rights and plays into their lawyers’ trap of establishing a history of permissive access.”

According to Sienkiewicz and access advocates, traditional public access is sufficient to establish a legal right, known as a prescriptive easement, to cross private property. Centuries of legal practice, however, have required that individuals or agencies wanting to establish prescriptive easements must prove that access was continuous, open, notorious, and hostile to the owner. In other words, the access must be without expressed permission by the landowner, a burden of proof that has been difficult, to say the least.

This doesn’t sound like the complete story.  The federal government does try to protect its existing legal interests, and that includes historic access that may not have been formalized, which it tries to negotiate.  I doubt if it often pursues litigation, but does sometimes end up in court to defend public access, as in this case involving access to the Lee Metcalf Wilderness on the Indian Creek trail, cited by the author of the op-ed above as a good example of negotiation (at least until it apparently went bad).  The Forest Service met its “difficult” burden of proof in this case.  There is a risk that asking permission now could undo the historic rights that already exist, but I don’t think it’s large, and I am a little skeptical that the Forest Service would “post” statements like that above except in cases where a particular landowner had made it clear that they were declaring war on public access, such as in this example.

Here’s another version of the same story from a recreation outfitter:

Recently, the U.S. Forest Service removed District Ranger Alex Sienkiewicz from his position in the Yellowstone Ranger District pending an internal investigation into his efforts to defend historical Forest Service trails and easements along the Crazy Mountains.

When legal access to public land does exist, I believe Montanans fully expect the Forest Service to defend and maintain that access for Montanans. As with so many of these issues involving political pressure on public agencies, a look behind the curtain reveals a very troubling story. According to media reports, U.S. Sen. Steve Daines, and Congressman Pete Sessions from Houston, Texas, both contacted Agricultural Secretary Sonny Perdue regarding Sienkiewicz’s efforts to protect legal, established accesses to landlocked public lands. According to Mary Erickson, forest supervisor, “the reassignment was made after allegations from an assortment of landowners in the Big Timber area were raised to the level of the Secretary of Agriculture, Sonny Perdue, and Sen. Steve Daines.“

Here’s the background on the Crazy Mountains access.

Blocking and posting no trespassing signs at the head of Trail 115/136 prompted Yellowstone District ranger Alex Sienkiewicz to organize a trail clearing and marking trip this past summer. Prior to that the agency traded letters with the Langhuses’ Livingston attorney, Joe Swindlehurst, who has denied there is an old forest trail at that location.

It’s not a stretch to see this as politicians ordering a personnel move to keep public lands from public hands.  Dangerous on both counts.



18 thoughts on “Personnel, politics and public access to public lands”

  1. U.S. Senator Daines (R-Mont.) needs to step up to the plate on the Crazy access issue. He has been aware of this issue for some time. (I sent a FOIA response to Jon & Matthew to post).

    Senator Daines is also blocking the public from accessing over 16,000 acres of federal land along the CDT in Montana. The lead researcher for the U.S. Sheep Experiment Station has said it is “not that big of a deal” if the area is not grazed and thus opened to the public. (I sent Jon & Matthew that FOIA response also). Commissioners for the MT Fish, Wildlife and Parks have sent a letter to Senator Daines asking that the federal land be opened to the public. How has Senator Daines responded: he has passed two appropriations riders that effectively keep the area closed to the public and said he will pass more.

    There are two sides to every story, and I would love to hear Senator Daines try to explain why the public should not have access to these pieces of federal land.

    • I posted this in 2011 in a post called “Nibbled to Death by Neighbors”:
      “One of the issues that you usually don’t hear much about in the press are “lands” issues. Lands people, in my opinion, are among the unsung heroes of the Forest Service.

      If you talk to them, you will find out some of the problems facing public lands-
      neighbors attempting to cut off access to the public, through
      land exchanges, trespass and subsequently being granted the land through efforts of their Congresspeople, putting gates on public roads, signing public roads as private, removing Forest Service signs, and probably other approaches I have not yet heard about.

      Because of the relative tininess of each individual action, it is difficult to get a handle on the overall size of the problem. I have heard that it is difficult to get the courts involved, again, due to the individual size of each incursion and the workload of the Justice Department- although some are successfully litigated. My understanding is that there simply aren’t enough people funded to keep an eye on these kinds of things to keep up with the need.”

      I have also seen legislated land exchanges for the same reason.. but to me it seems more the “rich person influence” than a partisan thing. Here are my thoughts:
      1) We need people to keep an eye on this issue locally..perhaps retirees of various stripes?
      2) It would be good to have a joint BLM/FS advisory group on “retaining access to public lands” which would make recommendations for national policies and needs. If we had an idea of the problem nationally, we could develop national policies, so that local line officers would not be hung out to dry. I think this is one of the rare areas that everyone on this blog agrees on! OMG a first!

    • Thanks, John. According to the landowner’s attorney, “It is not up to my clients to prove that no prescriptive easement exists.” But in order to prosecute a trespass, wouldn’t someone have to prove ownership? And could this be done without the Forest Service being involved (or in federal court)? And if not, would the Trump DOJ support the agency and public access (despite Senator Daines apparently not)?

      • But as I and Michael D. have said before, there was never an appetite among the legal folks to go after these issues, due to a variety of factors.
        I don’t think it’s a partisan thing, it’s more like (there are so many, where would you start?) x (probability of winning any individual case based on easements that maybe don’t have a great legal paper trail in the first place). Again, if you have a question of whether to prioritize defending something big or something small, I can see how DOJ would not prioritize the small. That’s why I called the previous post “nibbled to death by ducks”- individually each one is tiny, but it adds up to a lot.

        That’s why a national policy would be helpful in my view… it could be jointly developed with a legal strategy.. we need to establish x kind of claims based on y, because they are the major part of the problem.. and so on..

      • I wonder if a person or group could file a lawsuit against the Forest Service asking for a declaration that the land is open to the public and requesting positive injunctive relief requiring the Forest Service to remove down the private property signs and take any other action that is necessary to secure public access.

        • Somehow it would be helpful if the agency as a whole could rumble to life on this one… it’s probably all about the (negotiated with Congress) ideas of budget and priorities.

      • At least one hunter has already been prosecuted for criminal trespass. My limited understanding is that the DOJ has not stepped up and the Forest Service removed the employee that was working on the issue.

  2. Sometimes a party can be brought into a lawsuit involuntarily. My knowledge of the rules on this stuff is puny, but here’s a case where the FS apparently told the trespasser it would be ok. That might create an obligation to participate, but how vigorously to do so would still be a question. Also, if a conviction requires certainty about the ownership, I think the only way to do that would be in federal court with the government as a party.

  3. Seems like the FS is doing its part to restrict pubic access to public land. I see their plans on the Umpqua NF includes more road closures and campsite restrictions.
    Off topic. I see there is a lightning fire that got started in the Marble Mountain wilderness area of the Klamath NF. It is being monitored for resource benefit. Wonder how big it will get and how many millions we will spend on it by the end of summer.

    • The type of access (closed roads etc.) is a little off-topic. You have to have access before you can argue about what kind of access.

      • I’m not sure, what I heard Bob saying that the FS closing roads and private entities closing roads, while one is legal and the other isn’t, can have the same (negative) impact to recreationists.

        • I don’t think the effect of denying any access to all is the same as for limiting the type of access (which arguably excludes or makes it more difficult for some).

  4. Two more things about this…

    People do get reassigned when the fit between the community and powerful political forces/ or just grumpy people with phone numbers of the higher-ups, gets too great.

    I remember Dale Bosworth telling a group of employees about getting crosswise with (ah.. memories.. getting crosswise with a Senator (?) in Utah about a ski area (?) and he had to move. His version of the story was that sometimes people get moved for the good of the agency as a whole. It was a very helpful story for the people he was talking to (whose boss had been moved for reasons not related to public policy). It was meaningful that he sat down with them, and took time out of his over-scheduled schedule, because they really needed to hear those words from him. For me, that was the ultimate in Chief-hood.

    When you have a big organization and can move people around, it is a great gift in some respects. . Internal or external groups can scapegoat an individual or just develop really bad chemistry through time. Internally, a job change can be much better than years of grievances, mediation and so on. when mistrust has already developed. Keeping our eyes on the policy “prize” here, what is key is that the new person follows the correct, if uncomfortable, rules, regulations and policies. It sounds like she or he will be carefully watched by both sides.

    Second, I think it’s important to draw a distinction between “doing buddies favors” and “policy changes directed by the administration.” I think it’s especially important with the folks who like to create fear of the Trump administration (I’m not saying some things aren’t scary, but I want to save my powder for those things that really are). If we look at the other side, when an undersecretary, say, weighs in on a timber sale because he has friends who don’t want it, that to me is a “buddy favor” decision and not evidence of a administration policy change. We have seen these kinds of things on both sides. To discern the difference it helps to think “how local is this?” and “who is the “buddy”?

  5. You make some valid points. However, here the existing ranger WAS apparently following the rules. The right way to make a policy change is to announce it and then apply it. Here it looks like landowners with a vested interest, assisted by their Texas senator “buddy” have caused the agency to violate existing policy. Also, I think it would generally be bad policy to reward bad behavior (blocking public access) by giving the bad actors what they want (a new ranger) – at least without the mutual agreement from the employee that it is in everyone’s best interest.


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