Below is part of a press release from Enhancing Montana’s Wildlife & Habitat and others concerning an issue that’s been getting lots of attention in Montana.
HELENA, Mont. – A coalition of conservation-based groups filed a lawsuit on June 10 against the U.S. Forest Service to maintain traditional public access opportunities in the Crazy Mountains of Montana.
The groups’ challenge hinges on the Forest Service’s continued lack of progress and unresponsiveness in maintaining the public’s right to access public lands and waters in the Crazy Mountains. In February, the coalition submitted a letter to the Forest Service summarizing concerns over public access in the Crazies and notifying the agency of its intent to sue should access issues fail to be resolved.
“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. “Due to the Forest Service’s negligence, we had no choice but to appeal to the court.”
The coalition contends that the public, has longstanding and permanent public access to Montana’s Crazy Mountains. The lawsuit charges that until recently the Forest Service supported and maintained the public’s access to the trails, but certain Forest Service leaders now are abdicating their duty to protect and preserve public access there. The suit specifies four trails, two on the west side and two on the east side of the mountain range, that are mapped as public trails, are well known and have been traditionally used by the public but where certain landowners now are illegally and impermissibly attempting to deny public access (Porcupine Lowline #267, Elk Creek #195, East Trunk #115/136 and Sweet Grass #122).
“Hearing about attempts to obstruct public access in the Crazy Mountains, I began over 1,100 hours of documentation, FOIA requests to the Forest Service, and historical research that verified these trails are public,” said Kathryn QannaYahu of EMWH. “Especially compelling were the county railroad grant deeds of private land, containing the words ‘easement in the public.’ What I found angered me, because the public has easement interests on these four trails, which the Service isn’t protecting on our behalf. On the contrary, they’re allowing certain landowners to attempt to obstruct public access and undermine my and the public’s ability to access historic trials in the Crazy Mountains.”
In a response to Sen. Steve Daines dated Oct. 2, 2015, Forest Supervisor Mary Erickson wrote, “The Forest Service maintains that it holds unperfected prescriptive rights on this trail system, as well as up Sweet Grass Creek to the north based on a history of maintenance with public funds and historic and continued public and administrative use.”
“The Forest Service is bound to do its job and maintain access to these trails,” said Matthew Bishop of the Western Environmental Law Center. “It’s just that simple. This means managing and maintaining the trails, replacing and reinstalling national forest trail markers and signs, and ensuring public access on our public trails in the Crazy Mountains.”
In the words of the Forest Service’s own attorneys regarding one of these trails: “Indeed, it would be irresponsible of the Forest Service to simply abandon these easement rights or fail to reflect their existence in the travel plan simply to avoid the souring of relationships between landowners and recreational groups.”
Photos and maps of the trails are available here.
I looked at the parties listed in the lawsuit’s caption. It’s quite bizarre. If adjoining private landowners are allegedly blocking access to public land, why aren’t the plaintiffs suing them along with, or instead of, the Forest Service? I’m not sure the Forest Service is even a proper party to this lawsuit, or that it belongs in federal court rather than the Montana state court system.
Scratching my head . . . .
Lourenço , if I had the time I would call thes Public Land and Water Access folks and ask them.. they seem to know all about how all of this works and are very active (including lawsuits) on the topic. If I lived in Montana I would be donating to them.. https://plwa.org/
Thanks, Sharon. I don’t have time to ask PLWA either. If the PLWA people see this thread, maybe they’ll reply.
I looked at their website and believe I understand their mission. It seems reasonable to me. Yet I still can’t fathom why they aren’t suing the entities allegedly blocking access to public lands, nor why they are suing the Forest Service, unless it’s affirmatively participating in the blocking of that access. If that’s in the complaint, I didn’t see it.
Admittedly, that allegation could be somewhere in the complaint. The complaint is an astounding 114 pages long and some poor clerk in the judge’s chambers will have to wade through it. I don’t have time for that either. As far as I got, the suit seems predicated on the theory that “The Service is … tolerating the landowners’ illegal gates, fencing, ‘no trespassing’ signs and obstruction efforts.” (P. 7.) And that the Forest Service is building a reroute to some or all of the public lands in question to resolve the dispute, when it should be battling with the landowners. (P. 2.)
But I can’t think of a legal theory under which a court can order the Forest Service to engage in litigation with the landowners, and I very much doubt that it will disapprove of the Forest Service’s attempt to accommodate everyone by building a reroute.
Here’s our previous discussion of this story:
https://forestpolicypub.com/2017/07/06/personnel-politics-and-public-access-to-public-lands/
It includes some similar musings about jurisdiction.
Here is an article that summarizes the five claims:
https://www.bozemandailychronicle.com/news/environment/groups-sue-over-trail-access-in-crazy-mountains/article_02d00dcf-cfea-57fa-84f9-4f3597754fa7.html
Three involve the forest travel plan and failure to take actions that it allegedly requires (which is usually a hard case for plaintiffs to win). Specifically:
“Failure to manage and maintain the four trails for their designated and “emphasized” uses”
“Failure to protect existing access rights”
“Failure to take action to resolve disputes”
One alleges the Forest Service has made an illegal “decision to relinquish the public’s existing
access rights or ‘easement interest'” in the existing access.
There is also a claim that there was no analysis of the alternative trail construction as required by NEPA.
It’s kind of interesting to think about..
(just thinking about this as a non-legal person)
if the FS doesn’t prosecute many easement cases because they are not priority for DOJ, then will suing the FS change that? If there is a court order directly to DOJ? How would that work?
So you make DOJ, who doesn’t care as much as you do, take the case- are they going to do as good a job as you would if you went after the landowner directly? I’m not saying bad things about DOJ here, but they have to litigate everything government-wise from soup to nuts and might end up losing the access case, when these plaintiffs might have won. Not to speak of all the extra people and (taxpayers’) money involved.