Crazy Mountain Trespassing case

Didnt see this posted before, but got this email yesterday.

Hi Folks,
Good news, my trespassing case didn't go to trial. We do, however, have more work to do to keep this trail open to the public.

I took a deferred prosecution agreement. While it doesn't have the bang of a "thrown out of court" or "not guilty," the deferred prosecution is about as close to a dismissal as we are going to get with this court. I agreed to donate $500 to the Sweet Grass Community Foundation and in exchange the court won't prosecute me as long as I don't violate any laws over the next year. I admitted no guilt and the record will be expunged in a year. I used my own funds to make the donation.

The first thing people ask is how does this affect the status of the trail. Most people are like I was in thinking that if I was found not guilty then the trail would be open to the public. I was shocked to learn that a criminal trial cannot determine the status of the trail. That has to be done with an expensive civil trial. However, under normal circumstances if I compiled enough evidence that the trail was public the county attorney would decide not to prosecute and the sheriff would stop writing tickets. It is, after all, a waste of the court's time to pursue these things if the person won't be found guilty in the end. If the landowner had a legitimate claim that the public had abandoned this trail he could take it up with the Forest Service and leave the public out of it.

That would normally be a good strategy, i.e. solve this civil matter in civil court. But not in Sweet Grass County. It turns out that another major landowner has been trying to shut down this trail for years: the county attorney's wife. Now I'm not accusing anyone of anything, and to his credit he didn't have to offer me a deferred prosecution, but he didn't recuse himself from my case. The undersheriff also has family with a ranch adjacent to this trail and the Sheriff's last name is on a ranch just up the road. These things have raised a lot of eyebrows.

I'm told it is unusual for the criminal system to be used in cases where the public likely has a right to use the trail. Regardless if that has anything to do with the contents of the previous paragraph, if they are able to block the public from using this trail for another few years we could lose the trail. That is why I'm looking into forcing the Forest Service to do its job of protecting this trail. They need to throw down a statement of interest on this trail or find some other way to stop the clock. If we can't get them to take this on then various groups have expressed interest in suing the Hailstone and proving there is a trail easement.

I'm certain I'd eventually be found not guilty, but it would probably take an appeal to the District Court and I'm told the Sweet Grass sheriff department will ticket to the next person, forcing them to go through all this again. Pursuing this to obtain a not guilty verdict would waste my time and thousands of dollars that could be better used fighting this matter in civil court. That is the main reason I settled. Settling now allows us to use the $4-5000 remaining as seed money to raise enough to take on the Hailstone if it comes to that.

There is so much more to tell, but I don't have the time right now. This story is filled with many twists and surprises. We are making progress and I think we have a good case that this is a public trail. I'll try to get a more comprehensive story written and out to you guys.

So, we are beyond the trial and now it looks like the real work will need to begin.

Best,
Rob

Yes. thanks for the updates Rob.

Thanks. I've been working on writing up one with more background since I can talk freely now.

What a mess, sounds like rural politics and courts at their worst.

The good ole boy network at its finest. Good luck in your fight, way to hang in there!

I was looking through my notes last night... 2 months ago the prosecutor offered me a what I believe was a deferred sentence where I would plead "no contest." No contest is like an admission of guilt and my attorney knew I wasn't going to go for that so he declined on my behalf.

Then in early May he offered a deferred prosecution. In this agreement I admitted nothing but I did agree to not go on the Hailstone for a year and also pay the Crazy Mountain Stock Growers and the Farm Bureau $250 each. Since the CMSG are the ones trying to shut down the trail that really pissed me off and I told them I'd rather be found guilty and pay the state $500 than to pay the guys off who are trying to shut down the trail. So GFY!

My attorney relayed my feelings and the prosecutor replied that we could chose a charity or something if that was the hangup. I still said no.

Then in late May we found out the Department of Justice wasn't going to allow any Forest Service employee to testify on my behalf. Unbeknownst to me, the Touhy regulations allow the DOJ to step in and quash subpoenas, as explained in this memo. Then it was explained to me that without their personal testimony my defense - that I believed the landowner had no right to post the trial because two USFS employees told me so - was hearsay. It wasn't until a few days ago that I understood how worthless the criminal defense world is in settling real world matters, particularly in regards to my situation. In addition, for the first time it looked like I could actually lose this thing on a technicality rather than merits.

I don't know if the prosecutor knew about the quashed subpoenas, but shortly thereafter my attorney said I should seriously consider his latest offer, where I made a donation to the Sweet Grass Community Foundation. The Foundation seemed benign enough. I spoke with another attorney and he said I was really sticking my neck out if I continued, and that my time and money would be better spent taking the access fight to another venue.

For me, the biggest stress hasn't been about being found guilty, but being accused of wasting the money that has been generously donated to me. Seeing people I know pledging to chip in $5-10 once they get their paycheck really touched me - money is tight. Even if I was eventually found not guilty I was beginning to understand that the public would not be able to use that trail as long as the CA was going to prosecute. Furthermore, I've twice heard rumblings about potential future armed conflicts, and recall where a landowner near Augusta shot a person in a similar situation. As a practical matter, going to trial wasn't going to help open this trail. From a financial perspective I felt it would be a waste of money that wasn't mine. Not being able to speak freely on this subject over the last 7 months has also reduced my effectiveness, and being muzzled another few months would accomplish nothing.

This has never been about my ego - I went in there, not to get a ticket, but to add another name to the list of people proving that the pubic is using that trail even though the landowner is actively trying to shut it down (open and adverse use). This was about process, not principle. I'm an engineer not a showman. I have no personal need to be proven "right," I just want the trail opened. Other people want to hear that not guilty verdict but the verdict would have no real meaning, and could even encourage people to put themselves in a bad situation under a false pretense that it is protecting access. We've got the ticket so I have standing to sue the landowner and we now understand how the parties involved intent to act. There is no need to get another ticket.

The research Kat and I did to build a defense has produced valuable data. The publicity has caused all kinds of people to come out of the woodwork, but we appeared to be at a point of diminishing returns. I applied my engineering skills and saw the only reasons to continue were emotional so I accepted the settlement. I could have quibbled over the $500 price but I decided just to use my own money and stop wasting my time on stuff that doesn't further my goal.


Because it was a criminal trial I've been witholding information from you guys for 6 months. This is just the last fraction of info and it has taken me 2.5 hours to write it up. For whatever reason explaining it all is proving to be very difficult so you will have to bear with me as I try to do so over the next few weeks. There is a lot going on behind the scenes to open this trail and it isn't just about this trail - several are in a similar situation although the other landowners have largely kept it between themselves and the USFS and haven't been using the legal system to intimidate the public.


I'll try to keep you informed, but like I say it is such a complicated story I'm having trouble being able to condense it into a readable format.

The legal system is full of pitfalls, challenges and occasional silver lining found from the defense side of the process. You bare the weight of your actions and I respect your decision(s). I admire your principles, Rob.

Your FB political ramblings are occasionally back ass-wards though I respect ya none the less.

Thanks for the update, Rob. Maybe you should consider a podcast, which might be quicker than writing everything out.

Your FB political ramblings are occasionally back ass-wards though I respect ya none the less.

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Although I don't participate in FB ... I'm certain I would agree with your bass-ackwards ramblings.

Thanks for the update. Be confident that we trust your judgement in this matter and will continue to support your forward progress in protecting this public trail. Please don't hesitate to express any further need for written support or monetary support.

What I find interesting in this, after Rob went in to scout, having already spoken with the FS and I had spoken with the FS and gotten that big ass map with the markers on trails open to the public from the FS, taking it to that Bozeman BHA meeting; after Rob's scouting I put in my FOIA, but did not receive it until after he received his citation.

In the FOIA were emails from the Ranger Rob spoke to as to the trail status and a letter from FS Supervisor Mary Erickson to Senator Daines explaining the trail. Rob could not use it to prove their statements, because it was obtained after he received his citation. So it could not go towards his defense of proving he did not knowingly trespass.

BUT anyone else could now use my FOIA documents to prove they knowingly were not trespassing and wouldn't have to deal with this administration's DOJ not allowing our public trust employees to testify.

FS Supervisor Mary Erickson's letter to Senator Daines.

"It is a historic trail that dates back a century or more. The Forest Service maintains that it holds unperfected prescriptive rights on this trail system as well as up Sweet Grass Creek to the north based on a history of maintenance with public funds and historic and continued public and administrative use. The process for resolving this and other comparable access disputes is expensive, lengthy and time consuming. With limited staff and budget, the Forest is unable to immediately address these complex property law issues and often times these disputes remain unresolved until brought before a court of law.”

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Another document stated, Trail No. 115/136 is "part of a century-old trail system that circumnavigates the Crazy Mountains, and connected historic U.S. Forest Service guard stations (many of which are now rental cabins). Indeed a Forest Guard Station once existed upon the trail at issue at its juncture in Big Timber Canyon. Historically, forest rangers rode their work hitches on this trail system, administering public lands grazing allotments to private ranchers, managing mineral activity, putting up timber sales, fighting fire, and maintaining access for hunting and fishing for all Americans who might seek to use their national forests."

Makes for a good organized group hike... Awesome, as usual, with your research, Kat.

katqanna said:

What I find interesting in this, after Rob went in to scout, having already spoken with the FS and I had spoken with the FS and gotten that big ass map with the markers on trails open to the public from the FS, taking it to that Bozeman BHA meeting; after Rob's scouting I put in my FOIA, but did not receive it until after he received his citation.

In the FOIA were emails from the Ranger Rob spoke to as to the trail status and a letter from FS Supervisor Mary Erickson to Senator Daines explaining the trail. Rob could not use it to prove their statements, because it was obtained after he received his citation. So it could not go towards his defense of proving he did not knowingly trespass.

BUT anyone else could now use my FOIA documents to prove they knowingly were not trespassing and wouldn't have to deal with this administration's DOJ not allowing our public trust employees to testify.

FS Supervisor Mary Erickson's letter to Senator Daines.



Another document stated, Trail No. 115/136 is "part of a century-old trail system that circumnavigates the Crazy Mountains, and connected historic U.S. Forest Service guard stations (many of which are now rental cabins). Indeed a Forest Guard Station once existed upon the trail at issue at its juncture in Big Timber Canyon. Historically, forest rangers rode their work hitches on this trail system, administering public lands grazing allotments to private ranchers, managing mineral activity, putting up timber sales, fighting fire, and maintaining access for hunting and fishing for all Americans who might seek to use their national forests."

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That letter by Mary Erickson is pretty clear! What Kat didn't tell you is that the FOIA was simply a copy of the one requested by the prosecutor's wife. He had that letter but still wouldn't drop the case.

I have been remiss in keeping you guys updated... Kat wrote this opinion some time ago.

Sytes said:

Makes for a good organized group hike... Awesome, as usual, with your research, Kat.

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I was thinking that, 300 or 400 hundred people hiking solo, each leaving 20 minutes after one another (so they cant pull some kind of mob citation BS) what would they do? Cite everyone? Just crush the court system.

You stated "I just want the trail opened",yet I'm certain,as well as everyone familiar with this complicated matter, that continued confrontation with the landowner won't resolve the issue of public access. In 2014 Montana rancher Paul Hansen sold public easements to Montana F.W.P. for the relatively small sum of $33,000, with most of the funding coming from the Rocky Mountain Elk Foundation and sportsmen's groups. Why not use the obvious skills and ability to secure funding which you've demonstrated, along with your remaining cash reserves, to purchase a deeded easement in a similar manner?

...to purchase a deeded easement in a similar manner?

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A purchase requires a willing buyer and a willing seller. I'm certain we could gather the payment from a willing buyer ... however, it does not appear there is a willing seller, quite to the contrary.

Hannibal - The Hailstone said they were interested in a land swap. We have to be careful that the elk habitat isn't swapped for "rocks and ice." The FS and the Hailstone are trying to work something about, but bear in mind that several ranches are on this trail and they don't want the trail open either.

Once the public begins to negotiate to purchase the trail access ... then the implication is that the access was never owned by the public.

While working on the new PLWA, I was once again confronted with the issue of PLWA's origins, which no one seems to have documents and photos on. That started me back down that trail again. This time I found an excerpt from an article written in a 1991 Montana Game Warden Association newsletter, titled "Our Vanishing Roads" by Perry Nelson, retired FWP biologist and one of the original 9 founders of PLAAI (became PLWA). Through the warden network I tracked down the 1991 3 page article yesterday.

Gene Hawkes, one of the 9 was retired Gallatin National Forest Supervisor. These guys knew what was going on with public lands, roads and trails first hand. Perry explained his experience with fenced and gated roads and trails, the increasing locked gates, and public meetings, that by the late 1950's, "just about all meetings included questions about access problems of one kind or another." He explained about landowners fencing and gating public road right of ways.

"After retirement from the state, I vowed that if I were able, and could meet up with enough citizens willing to pass through the hard knocks school of public interest activism, and research the historical laws regarding public roads, and promote their restoration, I would join with them.

That opportunity came during a public meeting called by an ad hoc group of public land users in 1984 when Gene Hawkes, a former Gallatin National Forest Supervisor, threw his $25 on a table at the Bozeman Public Library and said, 'Here's my start-up dues. Let's organize a public land access group.' After more people threw their $25 on the table that night, nine of us from Bozeman, Three Forks and Livingston signed on as the Founders and first Board of Directors of the Public Land Access Association. PLAAI was incorporated as a Montana Corporation on April 18, 1985 by the Secretary of State.

Since 1985, PLAAI has done a considerable amount of research into public roads laws and the status of primitive access roads. Most of the roads I first used to get to public land and water as a state employee are still evident in Montana today. Their status as public or private roads make a contentious issue today for many reasons, especially for recreation and the extraction of renewable natural resources from public land. Many of the roads are closed, but only closed to public use, and not to private, or commercial recreational use of the public land.

Basic to the problem, is the fact that in more recent years many private landowners, especially those with land adjoining public land or water have ignored or forgotten the law and origin of those primitive roads, and promoted the idea of sovereignty for themselves. Just as many times, state and local governments have acquiesced to the landowners closing public roads. This has happened because citizens are poorly informed about public road laws and government agencies seem to have poor institutional memories for both the laws and the status of the roads, providing of course, proper research is done ahead of time."

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This is why I have pressed hard for PLWA's new website, since their old one could barely handle some punctuation, no pdf's, media and such. Now I have major control for adding law cases, documents from county, state and federal records, etc., so we don't have to keep recreating the wheel every couple of decades.

RobG said:

Hannibal - The Hailstone said they were interested in a land swap. We have to be careful that the elk habitat isn't swapped for "rocks and ice." The FS and the Hailstone are trying to work something about, but bear in mind that several ranches are on this trail and they don't want the trail open either.

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The negotiation between the USFS and the owner of the Hailstone ranch is certainly good news. If they're successful in reaching an agreement I suspect the remaining property owners will more than likely cooperate also. In any case, should it require private funding I would be more than happy to make a contribution.

Would there be any purpose of an organized hike on this trail?


If there would be, it would be easy to encourage participation. I will start by offering up a $100 REI gift card as a "door prize" at the end of the hike.

I bet 100 hikers would be an easy goal to reach.


By the way... this is in the Gazette.

http://billingsgazette.com/lifestyl...&utm_source=facebook.com&utm_campaign=LEEDCC+