Crazy Mountains Public Access & FS Management Lawsuit Filed Today

[Irrelevant]

I'll double post this

A Public-Access Lawsuit in Montana’s Crazy Mountains Claims Forest Service Is Catering to Private Landowners

The lawsuit that was filed against the U.S. Forest Service centers around four established hiking trails in Montana's Crazy Mountains.

www.outdoorlife.com

 

[Sytes]

Notably, Smith admitted that when the USFS included the four trails in its 2006 Travel Management Plan, it acknowledged the validity of these prescriptive easements. But he also maintained that the public’s claims to these easements had been degraded by the time the USFS decided to re-route the Lowline Porcupine Trail in 2018.

Thanks for sharing, Neffa. Good read.

 

[R.K.]

Is there a way to monitor the status of the case other than this thread? Possibly a website to see the status of the case, and rulings when they come out?

I would tag @katqanna but it looks like that username is no longer in the registry.

 

[RobG]

Is there a way to monitor the status of the case other than this thread? Possibly a website to see the status of the case, and rulings when they come out?

I would tag @katqanna but it looks like that username is no longer in the registry.

@Stikbow or me will let you know. I wish I knew how long it will take.

 

[RobG]

As expected, BHA et al officially lost. I have no kind words to say about this poorly thought out, baseless, and damaging lawsuit.



[edit, changed opening to "as expected" to be less confusing. Also, the final ruling hasn't happened yet.]

 

[COEngineer]

Yes, BHA et al officially lost. I have no kind words to say about this poorly thought out, baseless, and damaging lawsuit.

View attachment 212801

I don't understand what your "Yes" means. Were you answering a question further up in the thread? Or was it intended as an exclamatory statement, like "Yes! BHA lost..."?

I skimmed through the judgment and it seems like the gist of it is that the USFS can give up legal access across private land even if their guidelines say that they should not. Basically, the only way to have stopped this would have been to convince the USFS personnel to pursue legal claims to the historical trails instead of giving into the landowners' claims and looking for alternatives.

 

[RobG]

I don't understand what your "Yes" means. Were you answering a question further up in the thread? Or was it intended as an exclamatory statement, like "Yes! BHA lost..."?

I skimmed through the judgment and it seems like the gist of it is that the USFS can give up legal access across private land even if their guidelines say that they should not. Basically, the only way to have stopped this would have been to convince the USFS personnel to pursue legal claims to the historical trails instead of giving into the landowners' claims and looking for alternatives.

Yes, as in duh.

I haven't talked to anyone unbiased and familiar with the relevant laws that thought this had a chance. Mind you, I'm not against lawsuits. When I first learned the East Trunk trail was blocked by the landowner I looked into suing the Forest Service to "do their job" and open it up, but after learning about the issue it became obvious that they weren't breaking any laws so a suit would not have merit.

One major theme is that the Forest Service can't give up what it doesn't own. To your point, legal access isn't secured so they can't give it up. If the landowner says access is not legal then it is not legal until someone proves them wrong in court. Until then, they don't own anything.

The FS didn't own any prescriptive easements on these trails because they had not taken the landowners to court to prove the trails met the criteria for prescriptive easements. That doesn't stop the FS from claiming a prescriptive easement exists, but that's just their opinion and it doesn't carry any weight until they prove it in court.

It also can't be forced to defend what it doesn't own. As far as I can tell, this is what they lawsuit was wanting them to do. Again, just because they take the position that a prescriptive easement exists, it's just their opinion until they prove it in court. Sometimes they defend the trails, other times they don't. Private citizens can litigate to prove a prescriptive easement exists if the Forest Service doesn't want to.

rg

 

[Irrelevant]

The FS didn't own any prescriptive easements on these trails because they had not taken the landowners to court to prove the trails met the criteria for prescriptive easements. That doesn't stop the FS from claiming a prescriptive easement exists, but that's just their opinion and it doesn't carry any weight until they prove it in court.

It also can't be forced to defend what it doesn't own.

Rob, I'm not trying to be difficult... But in the 100 years (or whatever it actually is) of use prior to the court issuing a ruling supporting a prescriptive easement you still have the easement, the court only affirms it. But if prior to that ruling the trail owner, de facto or otherwise, stops using it, or states it isn't interested in an easement anymore then the public is hosed, the private land owner wins, and a potentially completely established legal prescriptive easement, perfected over decades and decades of use is lost.

The judge ruled is simply that the FS is not required to pursue prescriptive easements, I think everyone recognizes that is the case. My counter to that is that doing what is right shouldn't have to codified. The fact that the public agency most strongly aligned to protect public prescriptive easements to National Forest lands can simply choose not to, when an anti-public land administration comes into office, and after 5 years, the last 100 of access and work to maintain that access are erased, should chill the hearts of public access advocates.

This isn't a "yes" moment, in anyway that I can conceive it.

 

[rogerthat]

Rob, I'm not trying to be difficult... But in the 100 years (or whatever it actually is) of use prior to the court issuing a ruling supporting a prescriptive easement you still have the easement, the court only affirms it. But if prior to that ruling the trail owner, de facto or otherwise, stops using it, or states it isn't interested in an easement anymore then the public is hosed, the private land owner wins, and a potentially completely established legal prescriptive easement, perfected over decades and decades of use is lost.

The judge ruled is simply that the FS is not required to pursue prescriptive easements, I think everyone recognizes that is the case. My counter to that is that doing what is right shouldn't have to codified. The fact that the public agency most strongly aligned to protect public prescriptive easements to National Forest lands can simply choose not to, when an anti-public land administration comes into office, and after 5 years, the last 100 of access and work to maintain that access are erased, should chill the hearts of public access advocates.

This isn't a "yes" moment, in anyway that I can conceive it.

Spot on to what I have been thinking.

 

[rogerthat]

Rob, I'm not trying to be difficult... But in the 100 years (or whatever it actually is) of use prior to the court issuing a ruling supporting a prescriptive easement you still have the easement, the court only affirms it. But if prior to that ruling the trail owner, de facto or otherwise, stops using it, or states it isn't interested in an easement anymore then the public is hosed, the private land owner wins, and a potentially completely established legal prescriptive easement, perfected over decades and decades of use is lost.

The judge ruled is simply that the FS is not required to pursue prescriptive easements, I think everyone recognizes that is the case. My counter to that is that doing what is right shouldn't have to codified. The fact that the public agency most strongly aligned to protect public prescriptive easements to National Forest lands can simply choose not to, when an anti-public land administration comes into office, and after 5 years, the last 100 of access and work to maintain that access are erased, should chill the hearts of public access advocates.

This isn't a "yes" moment, in anyway that I can conceive it.

To add to that is that if the govt isn’t going to stick up for these ie (county,state,federal) who is??? PLPWA? I will have to do a deep dive but is some of the problem MT state law? 5 years ain’t shit for a landowner to shut down?

 

[RobG]

Rob, I'm not trying to be difficult... But in the 100 years (or whatever it actually is) of use prior to the court issuing a ruling supporting a prescriptive easement you still have the easement, the court only affirms it. But if prior to that ruling the trail owner, de facto or otherwise, stops using it, or states it isn't interested in an easement anymore then the public is hosed, the private land owner wins, and a potentially completely established legal prescriptive easement, perfected over decades and decades of use is lost.

I agree with the gist of what you are saying here.

The judge ruled is simply that the FS is not required to pursue prescriptive easements, I think everyone recognizes that is the case. My counter to that is that doing what is right shouldn't have to codified. The fact that the public agency most strongly aligned to protect public prescriptive easements to National Forest lands can simply choose not to, when an anti-public land administration comes into office, and after 5 years, the last 100 of access and work to maintain that access are erased, should chill the hearts of public access advocates.

This isn't a "yes" moment, in anyway that I can conceive it.

Remember, my poorly thought out "yes" was as in "duh." You seem to agree that if it isn't codified, you can't force them to do it with a lawsuit (which is why the "duh") so I'm not sure where the disagreement is.

This "chill the hearts of public access" stuff is way overdramatic and harmful. I mean no disrespect, but if access advocates are chilled it is because they weren't aware that's the way it has been for decades, if not for the entire FS history.

Nothing has changed and it is not as bad as people are making it out to be. If the public thinks there is a prescriptive easement and wants a trail open there is nothing stopping them from taking the landowner to court to prove an easement exists. The FS may or may not do it for us, but we can't sue them into doing it. It's always been that way.

Yeah, it sucks the FS isn't a stronger advocate for us, but people in the arena have to work in a world that exists, not one that we wish existed.

 

[RobG]

To add to that is that if the govt isn’t going to stick up for these ie (county,state,federal) who is??? PLPWA? I will have to do a deep dive but is some of the problem MT state law? 5 years ain’t shit for a landowner to shut down?

Yes, PLWA is the main entity taking this stuff on in MT. If I recall correctly, their founding members sued to open Trail Creek trail near Ennis Dam. That was in the 1980's. Nothing has changed.

Occasionally an individual can do the research and get it done.

 

[RobG]

Maybe I told you guys this. The East Trunk Trail is on east side of the Crazy Mountains. The landowner started blocking it in about 2014. When I first heard the Forest Service wasn't taking action against the landowner I asked an inside advocate if it would help if I would sue to force the FS into action against the landowner.

I have nothing against lawsuits. They are a nice club when agencies don't do their job. Many times government agencies won't follow the law because of outside pressure and the employees literally beg you to sue to give them cover.

As I hope everyone has figured out by now, the problem here is that the FS wasn't breaking any law so suing them wouldn't give anyone cover to do their jobs. I talked to several people and it was a dead end. The point is, if I thought a suit like this had merit I would have done it three years before this one was filed.

PS, there is a small chance Watters will rule for BHA et al; if she does I will crack an egg on my face and post the video.

 

[El Jason]

Appreciate the perspective Rob.

 

[goodhunt]

So what happens if someone attempts to use the east trunk trail now? What are the potential ramifications for the person taking the trail? I may be misunderstanding something here but it seems that this only confirms the forest service can't be held responsible for maintaining a prescriptive easement. If someone chooses to simply bypass the landowner obstructions and utilize the east trunk trail to get to public land would they need to be cited for tresspassing and then take it to court to finally determine whether or not there is or isn't a legal easement? Is there a better strategy to pursue?

 

[802flyfish]

I thought this website was informative on showing the exchange. Has there been any progress to the building leuschen was constructing by Twin Lakes? Last time I checked it was just a concrete pad. Funny thing is Mr. Leschuen was born and raised in MT.

The East Crazy Mountains and Inspiration Divide Public Access Improvement Land Exchange

 

[RobG]

So what happens if someone attempts to use the east trunk trail now? What are the potential ramifications for the person taking the trail? I may be misunderstanding something here but it seems that this only confirms the forest service can't be held responsible for maintaining a prescriptive easement. If someone chooses to simply bypass the landowner obstructions and utilize the east trunk trail to get to public land would they need to be cited for tresspassing and then take it to court to finally determine whether or not there is or isn't a legal easement? Is there a better strategy to pursue?

I wound up getting a trespassing ticket on the East Trunk trail that sort of started this whole mess. I thought if I fought it and was found not guilty it would open the trail, but I was wrong. It's complicated, but whether or not you trespassed doesn't determine the status of the trail. In simple terms, trespassing is defined as walking past a no trespassing sign. Even if I was found innocent, the trail would still be posted and another person could be ticketed.

Instead of being found innocent what you need to do is prove that the landowner doesn't have the right to post the trail. In other words, you have to take the landowner to court and prove a prescriptive easement exists. That process can run hundreds of thousands of dollars. Nobody has expressed an interest in doing that for the East Trunk trail. Because of lack of recent use and FS maintenance, the case for an easement isn't as solid as some would have you think.

 

[rogerthat]

I wound up getting a trespassing ticket on the East Trunk trail that sort of started this whole mess. I thought if I fought it and was found not guilty it would open the trail, but I was wrong. It's complicated, but whether or not you trespassed doesn't determine the status of the trail. In simple terms, trespassing is defined as walking past a no trespassing sign. Even if I was found innocent, the trail would still be posted and another person could be ticketed.

Instead of being found innocent what you need to do is prove that the landowner doesn't have the right to post the trail. In other words, you have to take the landowner to court and prove a prescriptive easement exists. That process can run hundreds of thousands of dollars. Nobody has expressed an interest in doing that for the East Trunk trail. Because of lack of recent use and FS maintenance, the case for an easement isn't as solid as some would have you think.

And per MT law a prescriptive easement is extinguished in 5 years? Seems like the “recipe” has never been clearer for landowners to block access if the access isn’t formalized. The deck is stacked in their favor unquestionably

 

[RobG]

And per MT law a prescriptive easement is extinguished in 5 years? Seems like the “recipe” has never been clearer for landowners to block access if the access isn’t formalized. The deck is stacked in their favor unquestionably

Yup, and it is up to the public to prove that the landowner is illegally posting it. That's why if you see a trail posted (or they are requiring permission to use it) you need to make sure someone is pursuing it.

I'm told roads aren't the same. If you can prove it is a county road it doesn't matter how long it has been blocked.

 

[Irrelevant]

This "chill the hearts of public access" stuff is way overdramatic and harmful. I mean no disrespect, but if access advocates are chilled it is because they weren't aware that's the way it has been for decades, if not for the entire FS history.

Nothing has changed and it is not as bad as people are making it out to be. If the public thinks there is a prescriptive easement and wants a trail open there is nothing stopping them from taking the landowner to court to prove an easement exists. The FS may or may not do it for us, but we can't sue them into doing it. It's always been that way.

Yeah, it sucks the FS isn't a stronger advocate for us, but people in the arena have to work in a world that exists, not one that we wish existed.

Yes a bit overdramatic. But the lawsuit should have a least opened the eyes to many, that while the FS can be a public land access advocate for a generation, it only takes a brief shift in an administration for all of that to mean jack diddly. While I may have rationally known that, it certainly didn't sink in until I started following the Crazy MT stuff.

If anything it should push us to actually codify access advocacy as one of the tenets of our public land management agencies.