The Fight for Public Land in Montana's Crazy Mountains
March 22, 2019
In the last 18 months, long-simmering disputes have boiled over amid claims of trespassing, political meddling, government bullying, and retaliation. Some worry that what’s happening there may harbinger what’s to come on public land across the nation. It’s enough to call the situation, well, you know.
In the fall of 2016, Rob Gregoire, a hunter and nearly life-long Montanan, won a state lottery for a permit to take a trophy elk in the Crazy Mountains, which rise from the plains about 60 miles north of Yellowstone National Park. Landowners around the mountains were charging about $2,000 for private hunts on their ranches. “That’s just not what I do, on principle,” Gregoire says. So he found a public access corridor that would take him into prime Crazies elk country—the federal land covered by the permit, which in total cost about $40.
Such trails have led into the Crazies for generations. And disputes between landowners and those who would cross their properties on these trails reach back nearly that far, too. By 2016, the trailhead Gregoire found was “the last non-contested public access point on the 35-mile-long eastern flank of the Crazy Mountains,” he would write later to his U.S. senators.
Yet even on what Gregoire thought was a public throughway, the Hailstone Ranch had posted game cameras and signs claiming that the Forest Service didn’t have an easement to use the segment that crossed the private property. After consulting with the Forest Service, Gregoire was convinced he had the right to hike the route. Once on it, he used an app to stay on trail where it seemed faint, to make sure he kept to public land. Then one evening as he returned toward the trailhead after an unsuccessful hunt, Gregoire found a deputy sheriff from Sweet Grass County waiting for him. The deputy handed Gregoire a ticket for criminal trespass. After court costs, the ticket cost $585.
The Crazy Mountains—brief, tall, rugged—resemble a crown that a careless ruler has dropped among the sage. Lakes of golden trout sit in the lap of their rugged cirques. Elk bugle in uncrowded forests. In the Last Best Place, they are one of the last best places.
The problem is, you increasingly can't get there.
In the last 18 months, long-simmering disputes over access to these publicly-owned mountains have boiled over amid claims of trespassing, political meddling, government bullying, and retaliation. Some worry that what’s happening there may harbinger what’s to come on public lands across the nation.
On one side of the dispute are people such as Gregoire who want to access the public mountains, which means traversing private land. That access, they contend, is enshrined by decades of historic use. On the other side are several ranch owners who disagree, and instead call it a trampling of their property rights.
For the past eight years, the main defender of those public-access corridors has been Alex Sienkiewicz, the district ranger for the million-acre Yellowstone District, which encompasses most of the Crazies. Every year since he started his job, in 2011, Sienkiewicz, who has a law degree, reminded his staff not to sign in or ask permission to use many of the trails around the Crazies. The Forest Service’s stance is that the agency possesses historic access to many of these routes. Signing in or asking permission could later be used in court to show that the public had given up its right to access, Sienkiewicz told his staff in memos.
Across Montana, disputes over the public’s ability to access and use the lands and waters it owns have been on the increase, including in the Crazies. “There have been upwards of ten disputed or lost access points on the [Yellowstone] District in the last decade,” wrote Mary Erickson, forest supervisor for the Custer Gallatin National Forest, to Montana Republican Senator Steve Daines in 2015.
History helps explain why. To encourage westward expansion in the 19th century, the federal government gave the railroads every other square mile (or more) as incentive to build more, creating a checkerboard pattern of land ownership throughout much of the West. Around the Crazies, many of the squares that weren’t consolidated into national forests became private ranches.
People don’t always cotton to other people using their property, particularly in the rural West, which has long harbored a deep suspicion of the federal government while triumphing private property rights. Today those impulses are compounded by still other changes in southern Montana—a booming Bozeman that’s sending more people looking for places to play, and wealthy newcomers buying trophy ranches and hanging “Keep Out” signs.
In the Crazies, some ranchers have also discovered they can charge thousands of dollars for big-game hunts. By blocking access to the federal land behind their ranches, public-land advocates charge, a landowner can effectively take over those acres and create large, nearly-private hunting preserves. “You can’t harvest elk without public access,” says Dan Vermillion, chairman of the Montana Fish and Wildlife Commission. “There’s no question that has occurred on the east side of the Crazies.”
Across the nation, trails cross private land to reach public places. Very often, no legal document exists in these instances giving the public the right to do so. This doesn’t mean the public is in the wrong, though. That’s thanks to a legal concept called “prescriptive easement.” The idea, which dates to centuries-old English common law, allows the public to access another’s property if that access has been known, open, and continually used over a certain period of time. (In Montana, it’s five continuous years.) Under a prescriptive easement, the public doesn’t have to pay to access the land, nor ask for permission (hence Sienkiewicz ordering his staff not to sign ranchers’ logbooks).
Prescriptive easements have been acknowledged by the courts recently in Montana. In October 2016, after the Wonder Ranch in the state's Madison Valley tried to block key access to the Lee Metcalf Wilderness by putting up gates and no trespass signs, a federal judge upheld the Forest Service’s claim that a trail crossing the ranch fell under a prescriptive easement and must remain open.
And so Sienkiewicz appeared to be doing what the job called for. Take a 2002 briefing by the then-Gallatin National Forest—one of many documents Outside links to in this story that were obtained through a public records request by Kathryn QannaYahu, a hunter, angler, and self-described “public trust advocate.” That document said it was “critical” for the forest to maintain its trail system across private lands, to defend "historic trail access rights if challenged,” and to legally “perfect” such rights “whenever that opportunity exists.” (Roughly put, “perfected” means that the access has been filed in documents at a courthouse. Disagreements are much more likely to arise from “unperfected” access.) The paper also called on the forest to “take prompt action in the event that landowners take action or threaten to close or obliterate the trail.”
“[Sienkiewicz] worked for everybody,” says Brad Wilson, a member of the group Friends of the Crazy Mountains, and a hunter and a retired deputy sheriff in Park County. “He wanted to see everyone enjoy the mountains.”(Sienkiewicz declined to comment for this story.)
But the district ranger’s approach rankled some landowners. In August 2016, after one of Sienkiewicz’s annual notices to staff appeared on the Facebook page of a public-lands access group, a local landowner and outfitter, along with the executive director of Montana Outfitters and Guides Association, held an angry meeting with Sienkiewicz and district forester Erickson. Erickson seemed to back up Sienkiewicz, according to notes taken by Sienkiewicz at the meeting and shared with his boss, then obtained through the records request. The issue appeared to quiet down.
In December, threelandowners (one of whom is a former Montana Republican state legislator) wrote district forester Erickson to demand she reprimand Sienkiewciz or remove him. They complained that the ranger was encouraging trespassing by pushing for access to trails that, they claimed, had long-ago been abandoned. The letter also included resolutions condemning the ranger by a property rights group and two stockmen’s groups, the Crazy Mountains Stockgrowers Association and the Montana Stockgrowers Association.
From there, things seemed to snowball. This past May, nine Crazies landowners complained to Senator Daines and the new Secretary of Agriculture, Sonny Perdue, about Sienkiewciz’s “aggressive attitude.” They asked for a review of agency policies. Daines in turn wrote to the then-chief of the Forest Service, Tom Tidwell, about the problems in Montana.
In June, Sienkiewicz was suddenly moved from his job as the district ranger tothe forest supervisor’s office, ostensibly to help evaluate a mine proposal in the Paradise Valley, near Yellowstone. Officials insisted it was a temporary assignment. But the Forest Service also announced that an investigation was underway, though it refused to discuss the purpose of the investigation. “There are things I can’t talk about it,” Erickson said in an interview, calling it “an internal Forest Service issue.”
For many, it was hard to view the reassignment as anything but retaliation against Sienkiewicz. The move reminded some of the recent case of Joel Clement, who worked mostly on addressing the effects of climate change in Alaska as the head of the Department of Interior’s Office of Policy Analysis, and who’s been vocal about the danger of climate change. Clement was abruptly moved to a position auditing royalty payments from energy companies. He resigned and is currently suing the government.
“Consider the implications of the message sent by Daines and Perdue,” longtime outdoor writer Don Thomas wrote in the BillingsGazette. “Federal employees who upset influential constituents are at risk even when operating within the parameters established by their own agencies. Montanans of all political affiliations should find this chilling.”
Others also see broader ramifications for public lands.
In June, Texas Republican Representative Pete Sessions wrote to Perdue asking the secretary to “issue a directive precluding the Service from acquiring interests in lands by prescription.” (One of Sessions’ constituents owns the Wonder Ranch that had lost the 2016 public access case, according to news reports.) Both the local and state stockgrower associations also issued resolutions encouraging the Forest Service to note on maps that private roads and trails “are available for public use only with permission of the landowner.”
Prescriptive easements exist in countless places nationwide, says advocate QannaYahu. Such a change would, in the name of private property rights, restrict public access in large swaths of the nation, she says. “This is a huge land grab.”
Just putting up gates and signs—even if the landowner ends up being in the wrong—can have a chilling effect. “They scare the public off,” says Gregoire. “They know the Forest Service is a paper tiger and can’t do anything about it, for the most part. And then the public stops using it.” He considered fighting that $585 ticket and even raised several thousand dollars on a crowdfunding site. But he realized his case wouldn’t solve the access issue. So in lieu of the fine, he donated $500 to a local charity in exchange for accepting a deferred prosecution.
Gregoire isn’t the only one who’s been put off by these policies. This fall, Joe Rookhuizen, a building contractor, youth ministry leader at his church, and self-described “Crazy boy” who grew up in the Montana mountains, said he called the Forest Service about using a trail to Swamp Lake. The Forest Service said it was a public access, but that he still might get fined. Rookhuizen had heard Gregoire’s story. In the end, he didn’t go to Swamp Lake. “I don’t consider myself a quitter,” Rookhuizen says, “but I don’t want to go through the hassle.”
Sweet Grass County landowner Page Dringman told Outside via email in early November that she and neighbors were frustrated to be painted as bad guys. “This issue keeps getting bandied about as private landowners closing existing legal access to public land,” Dringman wrote. “For landowners, the issue is trying to force landowners to give up rights in their private property to facilitate access to public land, when no legal easement exists.” She added, “I am not aware of situations where private landowners have prevented access on a trail that has an existing legal easement.”
Asked why ranchers don’t go to court to resolve some of these problems, she replied that isn’t the landowner’s responsibility to prove why the public should have access to his or her property.
She has a point. If the courts have no record of a formal agreement when a disagreement arises over access, “the burden of proof is upon the party seeking to establish a prescriptive easement,” says Sandra Zellmer, a distinguished visiting professor at the University of Montana School of Law. In other words, it's up to the county, state, or an agency like the Forest Service to maintain access. (This burden of proof shifts, Zellmer says, if you’re a property owner who, say, wants to get someone in trouble for trespassing on your land. In that case, she says, you’d have to prove that the person didn’t have legal right to be there.)
If a landowner shuts down historic access—for whatever reason—and then isn’t challenged, that access may, after a time, be lost to the public. "American property law is based in large part on use: 'use it or lose it,'" says Zellmer.
Forest Service officials say they're trying their best to preserve this access. The agency isn’t afraid to stand up to landowners when needed, Erickson, the forest supervisor, wrote in an email to Outside. But these cases are often complicated, and they require time and resources. “We can’t drop everything else we do across the forest” to work on them, she says in an interview. Complicating the disputes even further is the fact that many of these landowners are neighbors to the Forest Service—neighbors it may need to continue working with. So it behooves the agency “to really have that dialogue, look for other ways to resolve this,” says Erickson.
Some resolution came in late October when, after months of continued outcry in Montana about Sienkiewicz’s reassignment, the district ranger returned to his job and the investigation quietly ended.
The Crazy Mountain Working Group, which includes local landowners, state agencies, and the Forest Service, has been meeting since last spring in hopes of trying to reduce tensions and come up with creative solutions to access. Ideas so far include ironing out the easements and private and public land exchanges, says Colleen Coyle, an attorney facilitating the group.
Meanwhile, the Public Lands / Water Access Association, a group that fights for public access in Montana, is gathering information about historic access to various Crazies trails. “I know there’s lots of evidence there. We’ll get it,” says Bernard Lea, the group’s president and a former Forest Service realty specialist who's spent hours digging through musty courthouse records. When his group finds historical documentation proving access, Lea says that courts “have ruled in our favor, almost every time.”