Crazy Mountains Public Access & FS Management Lawsuit Filed Today

[RobG]

And unlike you, we put our money where our mouth is. The proof was in longstanding maps provided by the FS. So who should have been sued? Private landowners or the agency that already has imperfected easements? You're saying you'd rather us sue the private landowners and create unnecessary enemies? You, for one, have teamed up with them on the horrible land swap.

You created enemies of those landowners with your suit so I don't see the difference.

Yes, you should have sued the landowners, not the Forest Service, if you were concerned with access and didn't want to negotiate with the landowners. The Forest Service had no legal obligation to prove these easements existed, and it was ridiculous to believe so. So it was pointless to sue them. And the judge confirmed the FS had no legal obligation to sue (yet you continued with NEPA???).

The alternative to lawsuits would be to negotiate, which is where I fell. Mostly because the exchange improves the access situation over what could be obtained with lawsuits against the landowners, even if I felt they could be won.

How much did BHA spend on this? I think members deserve to know.

 

[Elky Welky]

Yes, you should have sued the landowners, not the Forest Service

That was a choice, and your opinion can differ. It would have cost significantly more to sue each of them individually. And again, your opinion is not that of an attorney. You asked some lawyers for their thoughts, although it would be interesting to know what lawyers and what bias they were bringing. Obviously it was a colorable argument, and plenty of other lawyers disagreed with yours, because it made it's way up as far as it did and wasn't simply dismissed on summary judgment.

And the judge confirmed the FS had no legal obligation to sue (yet you continued with NEPA?

Good lawyering involves using every argument at your disposal, which included NEPA and MEPA claims in this lawsuit from the onset. I really don't understand why you keep trying to make a big deal of that. One judge determining that the FS is not obligated to protect the public interest is something we'd fight all the way to the end.

How much did BHA spend on this? I think members deserve to know.

@John B. Sullivan III will happily share that information. I know you think you're shaming us for stepping up and spending the money to fight people like you, the private landowners blocking historic access, and the FS for not defending public access, but that is exactly within our mission and we'd do it again in a heartbeat.

 

[RobG]

Good lawyering involves using every argument at your disposal, which included NEPA and MEPA claims in this lawsuit from the onset. I really don't understand why you keep trying to make a big deal of that. One judge determining that the FS is not obligated to protect the public interest is something we'd fight all the way to the end.

Because NEPA has nothing to do with "determining that the FS is not obligated to protect the public interest."

 

[Elky Welky]

Because NEPA has nothing to do with "determining that the FS is not obligated to protect the public interest."

The NEPA process was created to ensure that agencies properly evaluate the environmental and related social/economic effects of their decisions. That falls squarely within protecting the public interest. And like I said, good lawyers use all the arguments they have. You're hung up on the wrong thing.

 

[DP_PublicLands]

If you all think this is the last we'll see of something like this, you're dead wrong. Its estimated that 75% of roads and trails historically utilized and maintained by the FS that provide public access to public lands through private lands don't have perfected easements. Back when Montanans were good neighbors, the easements weren't needed - no one was blocking access.

Exclusive access to public lands is the new hot commodity in Montana. Let that sink in - 75% of FS roads and trails could be in this same boat. If the agency isn't going to fight for public interest, then what's the point? ACCESS IS EVERYTHING.

The other side of the Crazies is a far bigger issue. The land exchange does not provide the same access - the public takes it in the shorts. We all need to be PRO PROPERTY RIGHTS. That means PUBLIC PROPERTY RIGHTS are equal to PRIVATE PROPERTY RIGHTS. If the Crazies issue was between two private landowners and not a private vs. public, there isn't a one of you that can responsibly say that it wouldn't have ended in a prescriptive use case regardless of what the outcome would have been. No landowner would have made the deal the FS did.

 

[RobG]

Exclusive access to public lands is the new hot commodity in Montana. Let that sink in - 75% of FS roads and trails could be in this same boat. If the agency isn't going to fight for public interest, then what's the point? ACCESS IS EVERYTHING.

I want to agree with you, but the take-home message of this defeated lawsuit is that the USFS is under no legal obligation to protect these trails. In fact, historically, they haven't protected these trails circling the Crazies. Just look at an old map and see that a trail circled the Crazies, but now it is all but gone. The same goes for the Sweet Grass trail. It's now permissive access. Public access to that one has been closed for nearly thirty years and the FS did nothing but write memos about it.

Since the FS can't be held accountable, it will be up to the people to take on the landowners when they block trails. On the east side nobody seems to want to step up so I see no point in stomping my feet at the landowners. Negotiating is a valid tool. If the Yellowstone Club were to buy the ranches on the east side the loss of access would be far worse than if the exchange went through.

 

[DP_PublicLands]

I want to agree with you, but the take-home message of this defeated lawsuit is that the USFS is under no legal obligation to protect these trails. In fact, historically, they haven't protected these trails circling the Crazies. Just look at an old map and see that a trail circled the Crazies, but now it is all but gone. The same goes for the Sweet Grass trail. It's now permissive access. Public access to that one has been closed for nearly thirty years and the FS did nothing but write memos about it.

Since the FS can't be held accountable, it will be up to the people to take on the landowners when they block trails. On the east side nobody seems to want to step up so I see no point in stomping my feet at the landowners. Negotiating is a valid tool. If the Yellowstone Club were to buy the ranches on the east side the loss of access would be far worse than if the exchange went through.

If you want to believe me, then just do it

The agency is tasked with managing the nation's natural resources "for the greatest good, for the greatest number, for the longest time". I can quote FS goals, objectives, mission statements, purpose statements, etc. all day long that show without a doubt that their priority is for the good of the public. There's never going to be a hard and fast rule, and every situation will be different, especially with prescriptive use easements. In this case, myself, and almost every organized recreation group in the state and beyond believe that the forest service should have fought for a prescriptive use easement. Like I said, if that's never going to be on the table as an option, or if push comes to shove and the agency doesn't have the gumption to actually do it, there's a LOT more public access that's in danger than the crazies.

Negotiation is a valid tool for sure - if the outcome is fair and equitable. And remember, there's a clock on prescriptive use.

PLWA has the gumption to take on legal cases when its clear the access is public - but they are overwhelmed. Every day gates are going up on roads and trails.

www.plwa.org

 

[RobG]

If you want to believe me, then just do it

The agency is tasked with managing the nation's natural resources "for the greatest good, for the greatest number, for the longest time". I can quote FS goals, objectives, mission statements, purpose statements, etc. all day long that show without a doubt that their priority is for the good of the public. There's never going to be a hard and fast rule, and every situation will be different, especially with prescriptive use easements. In this case, myself, and almost every organized recreation group in the state and beyond believe that the forest service should have fought for a prescriptive use easement. Like I said, if that's never going to be on the table as an option, or if push comes to shove and the agency doesn't have the gumption to actually do it, there's a LOT more public access that's in danger than the crazies.

Negotiation is a valid tool for sure - if the outcome is fair and equitable. And remember, there's a clock on prescriptive use.

PLWA has the gumption to take on legal cases when its clear the access is public - but they are overwhelmed. Every day gates are going up on roads and trails.

www.plwa.org

I'm not understanding your point. I have a 12" high pile of docs about the east crazies which contains all sorts of memos and policies about trail access, but if they choose not to abide by them there is nothing the public can do because there is no law that says the FS has to abide by their own policies. That is basically the gist of this lawsuit, and the judge said the FS could use their own judgement.

I'm a big supporter of PLWA and they have looked extensively at the Sweet Grass trail.

 

[DP_PublicLands]

What do you mean? Of course the FS has to abide by their own policies. The judge affirmed that they did abide by their policies.

My point is this. There’s no law that says “the FS must pursue prescriptive use access”. But they should be held to their mission statement and purpose. That seems to have been lost.

 

[Zac-K]

I want to agree with you, but the take-home message of this defeated lawsuit is that the USFS is under no legal obligation to protect these trails. In fact, historically, they haven't protected these trails circling the Crazies. Just look at an old map and see that a trail circled the Crazies, but now it is all but gone. The same goes for the Sweet Grass trail. It's now permissive access. Public access to that one has been closed for nearly thirty years and the FS did nothing but write memos about it.

Since the FS can't be held accountable, it will be up to the people to take on the landowners when they block trails. On the east side nobody seems to want to step up so I see no point in stomping my feet at the landowners. Negotiating is a valid tool. If the Yellowstone Club were to buy the ranches on the east side the loss of access would be far worse than if the exchange went through.

Your last sentence makes no sense.

Really can’t do much worse then the current proposed land exchange.

The proposed land exchange defacto gets rid of 50% of the access to the East side of the crazies, Sweet Grass creek. Big Timber canyon is a perfected easement for the remaining 50% and is not going away unless some other ridiculous proposal is floated to get rid of that.

Which after watching this last proposal unfold with a bunch of wolves in sheep’s clothing trying to sell a raw deal should not surprise me at this point. Said this before, should we be surprised that a group that kicked out any dissenting opinions early on, the very landowners that are illegally blocking access, and a conglomerate of a bunch of for-profit billionaires would come up with a terrible deal for Joe public?

Hell, if it all just went to Yellowstone club I would probably at least have the option to pay $350 a day to ski it!

Instead I’m getting sold on how great a 20 some odd mile trail with ridiculous amount of elevation gain and loss is somehow awesome and worth giving up status quo that I can already pick a better path to traverse the same country.

 

[Zac-K]

Your last sentence makes no sense.

Really can’t do much worse then the current proposed land exchange.

The proposed land exchange defacto gets rid of 50% of the access to the East side of the crazies, Sweet Grass creek. Big Timber canyon is a perfected easement for the remaining 50% and is not going away unless some other ridiculous proposal is floated to get rid of that.

Which after watching this last proposal unfold with a bunch of wolves in sheep’s clothing trying to sell a raw deal should not surprise me at this point. Said this before, should we be surprised that a group that kicked out any dissenting opinions early on, the very landowners that are illegally blocking access, and a conglomerate of a bunch of for-profit billionaires would come up with a terrible deal for Joe public?

Hell, if it all just went to Yellowstone club I would probably at least have the option to pay $350 a day to ski it!

Instead I’m getting sold on how great a 20 some odd mile trail with ridiculous amount of elevation gain and loss is somehow awesome and worth giving up status quo that I can already pick a better path to traverse the same country.

Correction, not the same country, similar country.

 

[RobG]

What do you mean? Of course the FS has to abide by their own policies. The judge affirmed that they did abide by their policies.

My point is this. There’s no law that says “the FS must pursue prescriptive use access”. But they should be held to their mission statement and purpose. That seems to have been lost.

I'm not trying to be confrontational, but how do you hold them to their mission statement and purpose? I agree about the no law part.

Perhaps we are differing on the meaning of policy, but they had a memo that clearly spelled out what they were supposed to do when a trail was closed down by the landowners, and they chose not to do it on the Porcupine and East Trunk trail. (IIRC, unfettered public access was closed down Sweet Grass long before the memo.)

 

[RobG]

Your last sentence makes no sense.

Really can’t do much worse then the current proposed land exchange.

The proposed land exchange defacto gets rid of 50% of the access to the East side of the crazies, Sweet Grass creek. Big Timber canyon is a perfected easement for the remaining 50% and is not going away unless some other ridiculous proposal is floated to get rid of that.

Zac - I don't understand how you can say we are losing access. We don't get rid of 50% because we don't have it now. Access to Sweet Grass creek (and East Trunk) is legally at the pleasure of the landowners - the law is very clear on that - and the swap does nothing to change that.

The proposal actually increases access. It obtains some easements to cross private land, and a particular change of ownership ensures access to Cave lake. We also gain full access to Smeller Lake, which is transferred to public ownership (which is a big deal). In addition, the consolidation of land allows us unfettered access to the backcountry, where there is elk in spite of all the talk to the contrary. Unfettered access to the Sweet Grass canyon is eight miles. not twenty and I'm pretty sure the current proposal retains some land so you can walk down to Sweet Grass creek at that point.

If you want to go up the Sweet Grass from the trailhead, you legally will have to get permission from the landowner, just like you do now. You can't lose access you don't have. That stinks, but it's the reality.

I'll add, if conservation easements can be obtained, the protection of the area from development will increase.

Edit: From the map of the proposal, I can't tell if the retained block of land in section 10 includes the high water mark of Sweet Grass Creek, but its purpose was to retain wetlands, so I would think so.