A potentially dangerous precedent is playing out in a federal district court in Montana, where hunters, anglers and public lands users of all stripes have launched a Hail Mary in order to protect public access to the iconic Crazy Mountains.
Starting in the mid-2010s, the U.S. Forest Service stopped maintaining and protecting prescriptive access routes across a checkerboard pattern of public and private land on the east side of the Crazies. For the Forest Service, it had apparently grown too tiresome to deal with the well-funded private landowners who continually challenged historic easements—easements that are, quite often, the only routes people can take to reach historic fishing and hunting grounds.
“Under Montana law,” reads a 2021 article in the Helena Independent Record, “a prescriptive easement allowing access across private property is established by ‘open, exclusive, notorious, hostile, adverse, continuous, and uninterrupted use’ for a period of five years. Experts estimate thousands of written and unwritten prescriptive easements exist in the state, with a wide variety of purposes including access to livestock on neighboring private property or public recreation access.”
According to John Sullivan, chairman of the Montana Chapter of Backcountry Hunters & Anglers, court proceedings in Billings last week unveiled a revelation – the Forest Service, for whatever reason, just stopped doing its job. Up until about 2016, Sullivan said, historic trails into the public reaches of the Crazy Mountains were maintained and open to the public on the east side of the mountain range, which is situated north of Bozeman.
Sullivan and the plaintiffs, in a suit against the Forest Service, maintain that the agency stopped this required activity without going through the proper processes – there was no litigation, no executive order, nothing. Without warning, maintenance and access protection ceased.
“Basically,” Sullivan said, “we’re asking the Forest Service to do its job.” The job, he said, is prescribed in the Federal Land Management and Policy Act, and it includes maintaining and protecting public access to public lands via existing and oft-used trails and roads, even if those trails cross private lands, as they do in the Crazies. The trails in question have been in use for decades–sometimes longer, Sullivan said.
“Some of those trails are 100 years old,” he said. “They were used by miners, loggers, hunters, anglers, mountain bikers … the list goes on. There have always been prescriptive easements on these trails.”
"These trails are mapped as public trails," says a report by the Western Environmental Law Center, one of the organizations that initiated legal action against the Forest Service in hopes of keeping the agency on task. "They are well-known and have been traditionally and continuously used by the public. Yet people who rely on access opportunities in the Crazy Mountains have been and continue to be confronted with locked gates on these trails."
Sullivan understands the irony of the suit brought against the Forest Service by BHA and other conservation groups in Montana–usually a suit is brought to cease destructive behavior. In this case, the suit, filed in 2019, is asking the Forest Service to continue its foundational policy of maintaining public access across private land in order to provide and protect public access. The latest round of briefs in the case was heard in Billings last week.
Some of the trails on the east side of the Crazies now have gates stretched across them–obstacles the plaintiffs say were put in place by “hostile landowners,” many of them wealthy and in possession of influence over state and federal elected officials and agency employees. In a brief delivered to the court late last year and referenced at the recent hearing, the Forest Service’s response to the litigation is that it no longer believes the trails across private land are viable.
“To us,” Sullivan said, “that was earth shattering.”
Indeed, many stretches of public lands across the West are accessible only thanks to the good graces of the Forest Service, the Bureau of Land Management and other public land management agencies and their efforts to maintain those access points. If the Forest Service is allowed to abandon the trails that provide access to the Custer-Gallatin National Forest on the east side of the Crazy Mountains, other landowners whose property is bisected by long-standing roads and trails–prescriptive easements by definition–might get some bad ideas.
“That would put us in a weird spot,” Sullivan says.
To many, it’s already a bit weird. Usually, the checkerboard pattern of public- and private-land interfaces occurs on BLM land, not high-use Forest Service land where trails are used to access some quality fishing and some of the best big-game hunting in south-central Montana. The Crazies are home to trophy elk, mule deer, mountain goats, bears and mountain lions – all targets for sportsmen and women.
For years, public land users have experienced problems with landowners erecting gates and “no trespassing” signs across four specific trails in the Crazies, and up until about 2015, the Forest Service was a staunch defender of public access, citing historic use of the trails by members of the public.
The prescriptive use of the four trails appears in the agency’s 2006 travel management plan — between then and last week’s court hearing, when the Forest Service essentially announced that it had abandoned the idea of maintaining the easements and ensuring public access, it’s clear something has changed. That something, it appears, may be private landowners wearing down the Forest Service using clout built up with politicians ranging from U.S. senators to agency heads and political appointees.
“I think the Forest Service thinks these hostile landowners are just too difficult to deal with,” Sullivan said. If that’s the reason the Forest Service has thrown in the towel and given up protecting historical easements in Montana, that sends a signal to “hostile” landowners all over the West.
If all they need to do is throw a fit, influence a member of Congress or an appointed agency head, what’s to stop other landowners of means from cutting off public access to public lands elsewhere?
Thankfully, the issue is still in court – U.S. Magistrate Judge Timothy Cavan did not issue a ruling at the Jan. 18 hearing. Sullivan did note that Cavan had lots of questions for Assistant U.S. Attorney Mark Smith, who put forth the Forest Service notion that the historic trails are no longer worth protection for public lands users.
“We’ve shined a bit of light on this problem,” Sullivan said. “But how does a group of volunteers take on billionaires who are trying to lock people out of public lands, especially when our own Forest Service won’t do it.”