Crazy Mountains Public Access & FS Management Lawsuit Filed Today

[RobG]

Sounds like extortion to me, Sytes.

It's just the landowner exercising his legal right and the Forest Service exercising judgement on how to proceed. They've been working on a reroute for 17 years. If the USFS were to sue for a prescriptive easement they would be trading a certain solution for an uncertain one, plus the trail would be closed for another 5-10 years. At least that is what PLWA told me, and the lawyer they usually use (Devlan Geddes) told me a negotiated solution is better. PLWA, as you might have noticed, is not part of this lawsuit.

If the USFS were to lose they would have to pay the landowner's expenses because of EAJA. A similar lawsuit (Indian Creek AKA Wonder Ranch) cost the Forest Service over $1 million and the case there was rock solid; this case is not rock solid, and the cases on the east side are even weaker in spite of what some claim. If they lost this one there would be no reason for the east side landowners to continue negotiating and we'd lose all access.

I don't like that we can't force the USFS to open these trails (in fact suing the USFS was the first avenue I pursued), but we live in a country where private property rights are sacred. If the government were to aggressively try to take away landowner's ability to protect their property rights you can bet the USFS's ability to do so would be removed. At this time there isn't even a law that requires them to take on the landowner.

 

[RobG]

I was saddened and a little angered when Rob Gregoire caved in and plead out. I thought he was going to take it all the way to the SCOTUS. I'm sure he had his reasons but dayum, running your mouth, gathering support, promising to do this or do that ended up being a waste of all of our time

Your critical comments are very understandable. It was not a decision I took lightly and I know I let a lot of people down regardless of the facts that made it a poor decision to proceed.

Every attorney I talked to told me this case would do nothing to make this trail public, and in fact one respected attorney said if I lost it would be detrimental to the process. Nonetheless people who I won't name (but are party to this lawsuit) encouraged me to continue to raise money and fight this.

As it turned out I was certain to lose the first trial because of small town politics and it became increasingly clear that I had a very weak case that I might even lose on appeal. The fact is, whether or not anyone could prove a prescriptive easement was totally irrelevant to my case. It turned out that the only thing that mattered is what I knew when I crossed that no trespassing sign - and I was relying totally on private conversations I had with the district ranger and also their law enforcement.

As the process neared the end it was determined that the USFS would not be allowed to testify because of the touhey regulations. In fact government agencies are rarely allowed to testify even if the case is very serious, which would have been nice to know beforehand as I would have prepared differently. Recall my entire case was based on the fact that both the district ranger and LEO told me to ignore the signs and use the trail. Without their testimony that fact wouldn't be allowed and I'd have a very weak defense. Furthermore, the written record of the district ranger for prior inquiries specifically said that he did not advise people to ignore the no trespassing sign which destroyed any chance I could make a case to the contrary. My case was very weak.

Nobody believed I would win the first trail because of small town politics. Unfortunately, that loss would set the tone for anyone who wanted to use that trail: that is, anyone using that trail is going to have an expensive court case (around $3000). I didn't please either way - I did a deferred settlement which was the best move to avoid a guilty verdict which would have been more detrimental. Unfortunately very few recognize the difference and even the press often gets it wrong.

So I can understand your criticism and animosity and wish I could give you an easy to understand answer them. If it makes you feel better I gave the extra money to access advocates include BHA (over $1000), Montana Wildlife Federation (over $1000) and PLWA (over $1000). I never pocketed a dime and in fact I contributed more than $500 not including my time and travel expenses or additional contributions to these organizations. The only people who personally profited were the attorney and Kat (who undisputedly got paid a very low rate for her time).

I owe you guys an accounting of the expenses and will try to get it done today.

 

[RobG]

I owe you guys an accounting of the expenses and will try to get it done today.

The accounting is done here: https://www.hunttalk.com/threads/crazy-mountain-access-fund-accounting.291760/

 

[TheJason]

Don't worry Rob. Wykittielitter ran his mouth and got banned. Great explanation, and the small town politics aspect is not one to be taken lightly. Even less so with a weak case.

 

[katqanna]

EBS Crazy Mountain Flyover - interview with Adrian Bird Jr.

 

[katqanna]

Happy National Public Lands Day.

Here is the updated Crazy Mountains Legal page

Judges Watters had a very heavy case load and moved our case to the jurisdiction of United States Magistrate Judge Honorable Timothy J. Cavan.
He "will conduct all necessary hearings and submit to the undersigned proposed findings of fact and recommendations for the disposition of all motions" to Judge Watters.
https://www.emwh.org/public access/Crazy Mountains/legal/17 - Order.pdf
On Sept. 6, we filed our amended Complaint, adding 2 additional components to the complaint - FACA & FLPMA.
https://www.emwh.org/public access/Crazy Mountains/Crazy Mountains Public Access Legal.htm
These are just two of the shots I took on Trail #267 conditions this summer. These are from Ibex going north. There were 11 downed trees across the trail at the beginning of the trail, some from last year. Some of the trees you could step over or go under, others were so large you had to go off trail to go around. Horses and mountain bikes/motorbikes would not be able to navigate this, which are uses in the 2006 Travel Plan.

This is what we are fighting for - public access to our public lands.

 

[katqanna]

Update on case...

Sept. 30, 2019 United States Magistrate Judge Cavan ordered Motion to dismiss denied as moot. CV 19-66-BLG-SPW-TJC Order.CMP

We filed an amended complaint and the DOJ answered, so the previous Motion to Dismiss is moot, not denied as the Chronicle wrote.

 

[katqanna]

Forest Service just put out a notice that the relocated trail (first stage to North Fork of Elk Creek Trail #195) will be open to the public Oct. 11th.

"The Forest Service no longer asserts a claim to a Forest System trail on the route depicted in previous visitor maps as the Porcupine Lowline Trail. The Porcupine Lowline Trail will not be depicted in future maps."

 

[katqanna]

Three found guilty of trespassing in Crazy Mountains are appealing

Three Livingston men found guilty during a July jury trial of trespassing in the Crazy Mountains plan to appeal their convictions in District Court. Nate Howard, Joseph Bullington and Johnathan

"This case is about whether landowners can systematically destroy public trails and government trail signs, and then turn around and get the county to prosecute the members of the public who lose their way on those trails." - Bullington

They were sentence to 5 days in jail with 6 months deferred sentence (no jail time, convictions will be cleared in 6 months), ordered to share in cost of trial and waived fees for public defender, ordered to pay $85 in court costs each, ordered to pay $100 fine or serve 10 hrs community service. They each chose community service.

 

[802flyfish]

Is the access through White's property currently open to the public? or is that slated to open next year?

 

[R.K.]

Is the access through White's property currently open to the public? or is that slated to open next year?

Next year from the press releases I've seen. I would definitely wait, as he doesn't seem the type to suffer fools.

 

[802flyfish]

That what I thought, just wanted to verify. I don’t want to jeopardize future access so I will certainly wait for the green light.

 

[katqanna]

I have been TBI delayed from getting this webpage finished on the South Crazy Mountains Land Exchange Proposal, for weeks. So it does not have as in depth of a break down as I normally do.
I did focus on details that others have not addressed as much, with the documentation to go with it, such as the Daines & Perdue contributions and scanned easement pdf's (I had one, Ian Wargo had the other). I didn't upload all the RR grant deed easements yet.

Additionally, I have a copy of the 1986 Park County Attorney Nels Swandal Opinion PDF linked there stating it was permissible to travel across the corner of public to public land, making good faith effort to step across without trespassing - each case would depend on the facts of the case. I was given this Park County Opinion years ago, shared it with a recent Park County resident who had been accused of trespassing by corner crossing. The Opinion was used in the case and the trespassing charges were dismissed. I would suggest checking with the County Sheriff's office beforehand, this PDF Opinion could be utilized to cross from Section 4 into 34 & 32. The Sheriff was made aware of this opinion during the case and said he would look into the cases as they came up, but would respect the Opinion.

The online comment portal has been down all day, don't know how long it has been that way or if it will be working tomorrow. There is a week left for comments.

If you can't get thru the online portal, and since no other comment submission address was provided in the Preliminary EA Proposal, I would suggest emailing your comments to

Project 56687 - South Crazy Mountains Land Exchange
Dee Closson, Realty Specialist, [email protected]
CCing Supervisor Mary Erickson [email protected]

Mail: Forest Supervisor Mary Erickson, P.O. Box 130, Bozeman, MT 59971;
Fax, (406) 587-6758;
or personally to 10 East Babcock Street, Bozeman, MT

Even if you have already commented, you can submit an amendment or changed public comment.
https://www.emwh.org/public access/Crazy Mountains/South Crazy Mountains.html

I updated the website with the YCT info from the FWP YCT Conservation Strategy Plan and the Rock Creek Ranger Station being located on Section 8 info.

 

[MTGomer]

Wrote my 250 words of input.

Beware of public access loss in proposed Crazies land swap

I’ve spent my lifetime on Montana’s public lands and my career working with land. I know that land exchanges, when done correctly, are a proven method to increase public access,

billingsgazette.com

 

[katqanna]

In my comments, I expressed concern for the CMR water rights -
"The CMR will permanently reserve rights to operate and maintain the Rock Lake dam and outlet tunnel in the deed through which CMR conveys Section 11 to the Forest Service. CMR would retain its water rights for the volume of water from full pool to the bottom of the outlet tunnel. As water rights and in-stream flow issues grow with the Climate Crisis, this is no protection for the public or natural resources/fish, especially since CMR would maintain irrigation rights."

Just found a video on CMR's Rock Lake water diversion set up. "In the late 60s they put in a tunnel system to drop the lake level down another 50 feet."

 

[katqanna]

I have been downloading all the public comments submitted on the land exchange projects, since the FS took them down a couple days after on the Porcupine Relocation project.

I saw FWP submitted a comment:


I contacted the writer to let them know that there is public access here, offered to send the links to the easements and the FS updated faq sheet acknowledging the easement on Rock Creek Road #199. FWP explained they couldn't correct their comment before the deadline, but would keep the info for futher reference. She did state that she received that info of no access from the Forest Service. The FS didn't put out an updated FAQ sheet about the public access until confronted with the Park County recorded easement.

Why is the FS telling other agencies there is no public access to sections 8 & 4 when there is?

 

[katqanna]

I just got an email from FWP. Thankfully, they reviewed the easements I sent them, got approval from all needed and submitted an amendment to their comment to the Forest Service. FWP provided a pdf of their amendment, which I am attaching here.

"Because there is access in both sections, we wish to withdraw the statement; 'We believe this land exchange would be positive for habitat conservation, hunter opportunity, and recreational access.' FWP remains neutral on the land exchange."

 

[RobG]

Thanks. A bunch of us wrote FWP but I didn't have the actual Road 199 easement. If you didn't know, PCEC poked around and found Robinson Bench Road had an easement on it from 1968. It's attached. There were also huge errors in their information on fisheries and it still wasn't corrected three weeks after I told them about it. I guess people can read all abou tit if they wish in the attachments.

 

[RobG]

Wow, I wish I had seen that video earlier. I wonder how much water is left when it's down.

The trail to Rock lake is open to motorized, but I guess it looked more scenic "hiking in five miles" than riding a motorcycle. I'd like to know more about the water management. Some segments of the stream go dry and there isn't fish in the 8 miles stretch below Rock Lake.

 

[John Salazar]

Mac White is not one of the Crazy Mountains landowners involved in the actions in our case. That is a separate situation that might have a good outcome.

It did have a good outcome. A new trail on the north end of the crazies. Unfortunately a bit of it is on fire right now.