Corner Crossing - Where to go from here?

[sweetnectar]

I know it is easier to rant and rave on the Internet and claw the ground then it is to pick up the phone and find out a little about what is going on.
So I did some visiting with Republicans from our legislature about the issue and why the no vote. From what I gather it comes down to a private property rights issue. If this bill went through it would be unconstitutional/illegal (apparently a lot of case law in the supreme court has already determined this) so the bill was no voted in committee by republicans. I asked what republicans think about helping hunters gain access to our public lands and they are looking for ways to legally do just that. So I found out that the republicans are drafting a bill to help gain access to more public lands....something to do with encouraging FWP to purchase easements to public lands instead of buying ranches. The main point being to help hunters gain access to public grounds at the same time protecting private property rights.

 

[BuzzH]

....and you just swallered the kool-aid?

WOW!

 

[Big Fin]

I know it is easier to rant and rave on the Internet and claw the ground then it is to pick up the phone and find out a little about what is going on.
So I did some visiting with Republicans from our legislature about the issue and why the no vote. From what I gather it comes down to a private property rights issue. If this bill went through it would be unconstitutional/illegal (apparently a lot of case law in the supreme court has already determined this) so the bill was no voted in committee by republicans. I asked what republicans think about helping hunters gain access to our public lands and they are looking for ways to legally do just that. So I found out that the republicans are drafting a bill to help gain access to more public lands....something to do with encouraging FWP to purchase easements to public lands instead of buying ranches. The main point being to help hunters gain access to public grounds at the same time protecting private property rights.

Maybe you know some of these guys and respect them, Nectar. My experience in dealing with the BS that legislators are willing to try pass off as fact, makes them the last people I would get any information from regarding property rights. Their track record on distinguishing private/public property rights is like Bernie Madoff's track record on managing investments.

I wonder what Supreme Court decisions that they mentioned? Wonder if they actually have any case law, or did they just read Krayton Kern's humorous fairy tale lawyering on his website, taking it as truth?

I picked up the phone and called the preeminent law firm in the state on the issue before "ranting and raving." According to these attorneys, there is no private property rights issue. None, only a public property rights issue. Hard to have a private property right issue when you don't own the public property in question.

I put a lot more faith in an attorney who specializes in these topics, than a group of legislators. Especially after spending two days a week up there and witnessing first hand their belief in campfire tales, bar stool stories, and their reliance on "my brother's neighbor's sister's cousin's babysitter said" kind of evidence to base their decisions on laws that have a big impact on all of us.

I can hardly wait to read this bill they are drafting. Not sure how they are going to get a new bill draft in, given they are past the deadline for such. Sounds like some good smooth talking to spin their way out of what they know is a decision that will haunt them big time, come November 2014 elections.

No doubt, these folks you talked to want to try force FWP into buying easements to this public ground, as they told you. That is a no brainer. If I could force a state agency into buying access to something I don't own (public ground), I would be very keen on that idea, too.

My opinion, based on years of trying to kill bills introduced by these guys, is that they have ZERO interest in helping hunters improve access to hunting ground, zero. Historically, their supposed interest in protecting private property rights is mostly a desire to convert public property rights into private property rights for their pals.

 

[sweetnectar]

Fin, do you think it would hurt if you got a hold of some Republicans that are drafting this bill and give them some input? Perhaps you could be of help in increasing hunter access to public lands...maybe not as much as corner hopping but not all public land is checkerboarded. If you think you've burned too many bridges already then I understand.
I'm not a legislature expert but I'm learning a bit more how things are done and am trying to lend some help in the matter...hopefully more help than harm. I happen to know a few legislators that are mostly concerned with other "more pressing issues" as they would likely see it, yet take the time to listen to me. Perhaps they do so because they know I'm not out to get them.
In any case I wish I was retired so I could devote more time to the cause. Makes me wonder if my generation will ever see a retirement or if government will keep taking it.

My gut tells me a corner crossing initiative will make it. Then leave it up to the courts if people want to go there. As for encouraging fwp to purchase easements vs ranches things can be done a lot of different ways....by force, by incentive from our state surplus. For example: FWP not allowed to purchase ranches for 15 yrs and x amount of dollars coming from somewhere in the state to help fund the purchase of easements as a possibility. I don't know which way one side is writing something or written something....I'm wasn't savvy enough to ask. I do think it is a good idea to address access issues on multiple fronts though. Good luck.

 

[ingomar]

The Goetz law firm wrote a Memorandum pertaining to HB 235 wherein their last paragraph states "For the reasons set forth herein, HB 235, if passed into law, will not constitute a taking and is constitutional under the Montana and Federal Constitutions". This is the same law firm that represented the Montana Stream Access Law in the Supreme Court and won. To read the entire Memorandum go to www.montanasportsmenalliance.com under the 2013 Legislature tab.

 

[Big Fin]

Nectar - I sent you a PM.

 

[Bugle 'Em In]

Dumb question, but I have to ask (with the risk of showing my ignorance on details)...

What would it take to get HB 235 (or equivalent) on a ballot for the common public to vote on? Let it be decided by the average voter, just like 161 was. Why shouldn't the majority rule on public lands access as opposed to a select few (when private property is not compromised)?

I know there are a few gents on here that understand the process better than probably anyone in the state, that is why I ask this honest question. Thanks in advance to anyone willing to answer in a Reader's Digest version.

 

[mdunc8]

I think you need about 25,000 signatures for a ballot initiative in Montana. It's dependent on voter turnout in the previous election, so it's not a static number. This is an option; however, as Randy pointed out to me yesterday, the legislature could overturn a ballot initiative in the following session. Probably not the smartest political move in the world, but it's possible.

 

[jryoung]

What would it take to get HB 235 (or equivalent) on a ballot for the common public to vote on? Let it be decided by the average voter, just like 161 was. Why should'nt the majority rule on public lands as opposed to a select few?

Legislating by ballot initiative is a dangerous game, I see it everyday here in California. We live in a republic founded to protect individual freedom over the whims of the majority. It can work great, and it can go horribly wrong. Given that MT has elected many opposing hunting who's to say those same votes couldn't be cast on a ballot initiative.

 

[Big Fin]

These legislators have put themselves in a no win situation on this topic. The evidence piled high that this is not a 5th Amendment concern.

Interesting how these legislators make property rights an issue of convenience when it protects the status quo for them and their friends. Yet, they introduce bills that infringe on property rights all the time. When one of their own introduce a bill that is an egregious violation, not a single one of these legislators will testify against it.

On Tuesday, I testified against a bill in the House Local Government Committee. HB 246. It was introduced by Kerry White, a supposed guardian of the Republican property rights crowd.

http://data.opi.mt.gov/bills/2013/billhtml/HB0246.htm

That will bill would subject every landowner to county approval before they could sell/donate/transfer a property interest to any other group/entity/person if the property right being transferred was in the form of a conservation easement. WTH?

Yeah. That is what it does. If a big rancher wants to donate/sell the residential development rights of his ranch he cannot do so without county approval. So, if he wants to sell these rights under a conservation easement, the county can kill that deal, depriving him of the cash from that sale. If he wants to donate these rights and get a very large Federal income and estate tax deduction, the county can keep him from doing that, costing him hundreds of thousands in taxes.

And these same supposed property rights legislators want to talk about the socialists in Washington, DC. This is a terrible bill and probably the biggest violation of property rights of any bill I have seen in the legislature over the last decade.

Where were these Republicans who are the supposed "guardians" of private property rights? Nowhere to be found. Not a single one of them were there to testify against the bill. Not one.

Yet, they are supposedly so concerned about property rights that they want to keep the public hunter off the public land. Give me a break.

Representative Kerns, the guy who flip-flopped on the corner crossing bill, has sway in the party. He could have killed the communist county conservation easement bill before it ever got to a House committee. Nope. Wasn't convenient to him or his cause. He let one of his fellow property rights hypocrites introduce the bill.

So, when these legislators who voted against the corner crossing bill start talking property rights, I laugh out loud. I have no problem pointing out the hypocrisy of their positions.

And now we get to the 5th Amendment issues of corner crossing. Good news is, most the legal minds have issued the opinions that corner crossing is not a property rights violation.

I called a Wyoming county attorney last year and asked if I would be cited for corner crossing in my elk hunt. He told me he would not prosecute. He has limited time and budget and was not going to waste it on a case he would probably lose. Ask the county attorneys in Montana if they will prosecute. Most will give you the same answer.

The entire legal community seems to have folded the tent on this one. The one group still trying to keep the public hunter off public land are the legislators of the west, the fringe operators who have taken over the Republican party. Imagine that. The same people who want to keep landowners from selling/donating property rights also want to keep public hunters off public land.

So, if you are a legislator, you really have three choices.

One, find a way to escape the political problems you created by killing this bill. Try build some smokescreen bill that will lower the temp of the pot that is now boiling. Given the hunters know we have a four Aces against a pair of Sixes, I don't think the hunting community is going to be real quick to accept some half-baked idea.

They know the political fall out of this bill is going to be heavy, come 2014. If hunters let them off the hook on this one, shame on us. They have to be squirming about the mess they have created.

Second option, let this issue eventually be settled in the courts. Wait until some guy decides to corner cross and will take it to the highest court needed to get a final decision. The courts will find the correct legal opinion, and it will most likely be an opinion these property rights hypocrites do not like.

Third option, sign on to this bill and put the issue behind us. Egos being what they are, the odds of that happening are very slim.

Hunters need not negotiate on this topic. We are in the drivers seat. Not in the legislature, but in other ways that are far more powerful than some legislative voting block who is grasping to the final rail.

This topic will be finalized in the courts, if not in the legislature. If no county attorney will take a corner crossing case and allow it to work through the courts, then I guess the hunters win by default. We corner cross without concern, being careful to not trespass.

No matter which path it takes to get there, clarification on the right of hunters to access public land via corner crossing is going to be sorted out in the coming years.

 

[jryoung]

ZUGZWANG! (like bazinga, but different)

 

[El Jason]

If a big rancher wants to donate/sell the residential development rights of his ranch he cannot do so without county approval.

I was told by a group that conservation easements are "an unreasonable infringement upon private property rights for future owners".'

I can't believe some of the crap these folks come up with.

 

[Lawnboy]

I was told by a group that conservation easements are "an unreasonable infringement upon private property rights for future owners".'

Isn't that like me oogling over the old man neighbors new truck hoping that when he dies I will buy it from his wife, then when he does die I find out he puts in his will that it should go to his son. I'm a future possible owner of that truck but now because he put it in his will I can't buy it.

I'm being infringed upon!!

 

[El Jason]

Making sense is optional theses days.

Maybe the counties should review wills too?

 

[Pierre]

Shoots-Straight, that is one scary picture.
Folks, stand up and be counted on corner-crossing. We need to fight for the right to debate this in the light of day.

 

[ingomar]

Received this Teddy Roosevelt quote today from a friend. Seems very appropriate.

The Man in the Arena

“It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat.”

“Citizenship in a Republic,”
Theodore Roosevelt’s Speech at the Sorbonne, Paris, April 23, 1910

We need more men and women in the arena on Feb. 18th at 12:15 in Helena at the Capital.

 

[Bugle 'Em In]

Legislating by ballot initiative is a dangerous game, I see it everyday here in California. We live in a republic founded to protect individual freedom over the whims of the majority. It can work great, and it can go horribly wrong. Given that MT has elected many opposing hunting who's to say those same votes couldn't be cast on a ballot initiative.

I can appreciate your statement of it being a dangerous game. I think its difficult to compare residents of CA vs. MT. I'm having a tough time understanding how your statment about living in a "replublic to protect individual freedom over the whims of the majority" is relevant as it pertains to HB 235 and/or a public vote of HB 235. If passed by the majority, nobody's individual freedom would be compromised as I understand it.

You're absolutely correct, there may be enough opposed to HB 235 to vote it down, but in all honesty, I'd welcome the opportunity for Montanan's to have a say. Being a betting man, I'd be willing to wager on the outcome.

Respectfully,
SW

 

[Big Fin]

From a really good website if you are interested in seeing where politicians are getting their money. Not that politicians are influenced by who gives them money. I always read this site when it deals with Montana topics. Found this one interesting and timely.

Some of the best elk hunting in North American could be had by corner crossing and hunting the public land adjacent to lands owned by these guys.

http://www.followthemoney.org/blog/...rcent-of-montana-republican-legislators-2012/

Texas Fracking Billionaires Gave Money to 70 Percent of Montana Republican Legislators, 2012

Posted on February 1, 2013 by Institute Staff


Montanans make up the vast majority of individuals who give to Montana candidates, but they were not the top donors to legislative candidates this past election. Two Texas billionaires and their wives gave the most money to Montana’s 2012 legislative candidates. The Wilks brothers, Dan and Farris, made their billions in fracking and oilfield services with their Texas-based company FTS International (formerly Frac Tech Services).

Dan and Farris Wilks, along with their wives, Staci and JoAnn, entered the world of Montana campaigns with a bang in 2012, giving a collective total of $51,040. Each of them gave to more than 70 candidates, all Republicans, and in most instances, they each gave the maximum allowed by law. See the contributions from Dan, Staci, Dan and Staci, Farris, JoAnn, and Farris and JoAnn at our site.

Sixty-four of the candidates they supported won; 63 are now legislators, and Tim Fox is the attorney general. Across both chambers, 70 percent of Republican legislators and 42 percent of the legislative body as a whole received contributions from the Wilkses during the 2012 election.

The brothers have attracted attention recently for their large land purchases in eastern Montana. They own big tracts in other states as well, including Idaho, where they are the second-largest landowner in Idaho County. Given their interest in hydraulic fracturing, some are concerned they are amassing land to frack.

Regulation of fracking is largely left to the states; the EPA has limited authority to regulate the industry. Consequently, state lawmakers and officials determine the regulations and permitting requirements for drillers.

Outside of Montana, the Wilkses and their company began making campaign contributions in 2010, mostly to candidates in Texas. In 2010, Frac Tech Services gave $58,000 to legislative candidates in Texas, and in 2012, the Wilks brothers gave $70,000: $10,000 to the state Republican Party, $50,000 to Governor Rick Perry, and the remainder to other Republican legislative and judicial candidates. All of it went to Republican candidates except for two 2010 contributions totaling $7,500 that went to Democrats.

Frac Tech Services gave an additional $20,000 in 2010 split evenly between Republican gubernatorial candidates Tom Corbett in Pennsylvania and Susana Martinez in New Mexico. An additional $6,000 went to Corbett from Staci Wilks and FTS employees. Both candidates won their elections, and went on to govern states with significant fracking activity.

 

[Curtis.mullin]

Is there any information on the rally for the this bill that is supposed to be held on Presidents' Day?

 

[jryoung]

I can appreciate your statement of it being a dangerous game. I think its difficult to compare residents of CA vs. MT. I'm having a tough time understanding how your statment about living in a "replublic to protect individual freedom over the whims of the majority" is relevant as it pertains to HB 235 and/or a public vote of HB 235. If passed by the majority, nobody's individual freedom would be compromised as I understand it.

You're absolutely correct, there may be enough opposed to HB 235 to vote it down, but in all honesty, I'd welcome the opportunity for Montanan's to have a say. Being a betting man, I'd be willing to wager on the outcome.

Respectfully,
SW

It's not necessarily relevant to HB235, but relevant in general to the ballot initiative process. If the majority supports HB235 then that is a great thing, but what other issue may come up that may not have a majority support (due to misinformation or people voting party line). I'm just stating that it is a risky game as in California and Montana too many voters don't do their research.