Ollin Magnetic Digiscoping System

Crazy Mountain access update

RobG

Well-known member
Joined
Dec 10, 2010
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Location
Bozeman, MT
Hi Folks,
There was an editorial in the Billings Gazette that deserves another side of the story so it is time for an update.

First, some background. The trail I got my ticket on, trail 135, is on the east side of the Crazy Mountains between Big Timber and Sweet Grass Creeks. It is, however, one of 5 trails that currently have landowner conflicts that have a chance of being improved. This whole issue blew up after my ticket and it is obvious there needs to be changes or landowners are going to start getting sued for blocking access.

We have a lot of historical evidence that these trails meet the criteria for prescriptive use. Land access sledgehammer PLWA is on this issue. As Bernie Lea of PLWA says, when they find historical documents proving access, the courts “have ruled in our favor almost every time.” Thus the landowners have come to the table. To their credit, the landowners formed a working group to try to find compromise. I wasn’t invited, but I don’t care. Erica Lighthiser of PCEC and Dale Sexton, who owns Timber Trails in Livingston are representing the access folks and I think they are doing an outstanding job.

Personally, I see a lot of potential for win/win solutions on several trails by collaboration. These are very old trails and mostly go through private land and only provide access to public land in a couple spots. I would never give them up without a fight, but there are multiple ways to improve access and also avoid going through so much private. And nobody has to waste money on lawyers. When only lawyers lose, you are doing it right.

The members of the working group don’t want their discussions to be public. Since the landowners are doing this on their own free will, and paying for it, I try to respect their wishes. I only know vague details anyway. Be assured, PLWA, Backcountry Hunters and Anglers, and MWF haven’t stopped doing research into the history of these trails. If necessary, they will be litigated.

A few weeks ago Dale Sexton from the working group wanted to float a landowner proposal by a few people in the access community. This involves trails 195 and 267 heading south from the Porcupine Forest Service cabin on the wst side of the Crazies. Originally it was just going to be the access crowd, but the landowner, Ned Zimmerman, asked if he could be there for questions, etc. He and his wife are quality people who have a different perspective, but want a solution.

There were about 25 people in the room including representatives from DNRC, USFS, Montana Wildlife Federation, Backcountry Hunters, Anglers, Public Lands/Water Access Association (PLWA), RMEF, Friends of the Crazy Mountains (FOCM), EMWH (Kat Q.). In broad terms, Zimmerman’s proposal is to grant an easement so that the trail can be rerouted so it is almost entirely on public land. Nearly everyone agreed that this looked like a very promising proposal that is actually an improvement over the existing situations for both parties. That doesn’t mean they accepted it, only that it has a lot of potential. It also avoids a lawsuit, which often drag out for a decade and cost hundreds of thousands of dollars even with attorneys working at reduced rates. Also, any lawsuit would likely destroy the working group and make it harder to improve the situation on the east side.

FOCM and Kat (EMWH) don’t agree with the proposal. That’s fine, but they were outnumbered probably 10:1. Brad from FOCM wrote his concerns in the Gazette editorial I linked to in the opening sentence. I have asked both Brad and Kat to tell me why they oppose the working group in general and this specific proposal and I never get a direct answer. As best I can tell the reason is that we could win a lawsuit and re-open the original trail, and also the landowner is getting rewarded for blocking an access. These are certainly facts, but to quote a friend “Jesus, I'm sure we could win a court fight to regain a six mile trail that goes entirely through private land, but what the hell is the point? Our goal is to get to the national forest, and this proposal would do it quicker. ”

At the meeting I asked if I could make the proposal public and was told that it would be better if they could keep working on it without having the public questioning every detail before they are finalized. I completely understand respect that. The landowner, after all, doesn’t have to be proposing anything.

However, I can describe the proposal in general terms. On the map (from Kat’s website) Green is Forest Service land, pink is private land of interest. Trail 267 starts in section 10, but the landowner has posted it where it enters section 15. South of here is the contested area. The proposal would route the trail further east through a different part of his land and then continue south on public land crossing trail 195 and continuing until it meets with the existing trail 267 in section 2. The gradient is similar to the old trail, but in different locations.

zimmerman-guth.jpg

Trail building is about $20,000/mile and it sounds like there are quite a bit of funding sources available outside of USFS. Many sections will be in rocky terrain and more expensive, but not prohibitively so and there is flexibility in trail location. I don’t know where Brad got the $500,000 cost that he put in his editorial - I didn't have that number in my notes.

I have some concerns about the proposal and how the easier access will affect elk hunting, but you have to weigh the options and the fact that the land is very hard to access now. Bear in mind, this is absolutely not a back room deal. It will have to go through NEPA and there will be plenty of time for public input. We can always litigate and get the old trail back, but I think this is an improvement and it won’t waste resources that might be needed on the east side.

Again, the details aren’t even finalized so the actual sketch will only generate questions about things that are still in the works. I trust Dale and Erica to represent us well in that process. I could be out causing problems for the landowners, but I support a collaborative solution to this problem 110%.

As the editorial says, FOCM is putting on a public meeting March 13[SUP]th[/SUP]. They might give more details than the landowners would like and raise all sorts of questions. That’s not how I operate, but they can do what they want. I encourage everyone to go and hear what FOCM has to say. Brad is well spoken, but listen to the other side and respect the fact that this is a work in progress that could lead to better solutions on multiple trails. I wish I could be there but that is in the middle of spring break and I’ll be somewhere warm with my family.

Finally, someone who disagrees with me decided to launch a smear campaign against me. Whatever. If you take the time to read closely, you can see the absurdity of the accusations, but some people have expressed concern. If you hear of anything that concerns you, email me at [email protected] and I can answer questions by email or phone. I am 100% comfortable with what I have done so far, but I am not going to have a public debate about twisted minutiae.
 
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Looks like the possible solution may work and be much faster that fighting and ending up in court for God knows how many years. I hope said person that caused the other thread to get locked doesn't ruin this one and if he/she comes on here that things are kept as civil as the 600+ post ongoing thread about the FL shootings has been!
 
I have no interest in recreating there but it looks like a good solution to me, and a landowner willing to help with a solution.
 
Thanks for the update Rob. I would much rather work with landowners to find solutions rather than fight when unnecessary. I see no value in taking a retain whatever is ours regardless of the cost in finances or private/public relationships, attitude. Every access battle is one piece of a much larger pie in the overall solution to keeping/gaining access to public lands. I think we will gain much more overall by working with landowners who are willing to be part of the access solution.
 
It’s been my experience landowners driveing the bus on public access is a recipe for disaster. YMMV

Hopefully this one works out.
 
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It’s been my experience landowners driveing the bus on public access is a recipe for disaster. YMMV

Hopefully this one works out.

They might drive the bus, but the public can get off at any time and go the other route if the solution doesn't look like it will work. That's why IMHO this should be given a chance, rather than just say to heck with them and we'll go to court to get our way!
 
It’s been my experience landowners driveing the bus on public access is a recipe for disaster. YMMV

Hopefully this one works out.
We can sue so I'm not sure they are driving the bus. There is always a risk of being suckered into something, but this is really an opportunity to improve the access over what the public had before the trail was posted. There is risk and reward. If the public wins I think it's awesome if the landowner also wins. And I've got a right to a bigger grudge against them than anyone else ;).
 
it seems in my mind at some point in time a legal precedent ,SPELLING,. needs to be set to set up legal actions against folks posting trails illegally ,i.e trails that have public use forever, then the public gets kicked off said trails

we get a landowner to say lets reroute the trail,,, sure up thru those cliffs and across the river,,, ect,,, landowner keeps most everyone out still, doesnt get sued and judgement , fines ect levied, and public access to the original trail, that was put in its place for a reason,, protected,,,

im not a legal mind but dont we want a legal standing on these access issues, not a compromise that leaves a gray area forever, seems like the public doesnt win, if the case goes against the public, at least its not a grey area anymore,,,,

where is the legal team that supports the public access, how bout them stepping up pro bono to protect there public land rights,,,,, or lets GOFUNDME, take whatever they get thru donations to cover there legal fees,,,,

im probably thickheaded,,,,,,,
 
While I can see the benefit on compromise on a lot of issues. Landowners illegally closing off public access is not one. I wouldn't give an inch or they'll take a mile.
 
I've followed this entire thread with great interest for a number of reasons.

My great respect to you RobG for your steadfast efforts and principles. And for taking the high road through this entire journey of sorts. And your continual efforts to find better outcomes with these issues.

Groups, interests, ownership of emotions and values..... all seem to come to a better place in general with compromise and all eyes looking forward to a shared end goal. Versus looking straight at each other's faces and not too far beyond that. Forgive me if what I wrote here sounds preachy or highbrow.....

A perspective:

In what I read and how I interpret what has been discussed above in the update. Forgoing the issue of what should be established as a legal public route and right of way for access. And building a new trail outside that said legal right of way. Seems to me, a very slippery slope once again. Even though in this situation the private land sections are connected north to south through which the existing trail exists. Someone using the existing trail only has legal access along the trail corridor and nothing outside for close to 5 miles. Some would say that common sense lends itself to the argument of getting out of the private corridor. Again, in this situation. But not all of the checkerboard ownership issues in the Crazies, and other cases lend themselves to such a proposal and ability to almost totally circumvent private lands where now existing legal right of ways exist in the form of trails. Obviously we all realize that not all parties agree to the legality of public access to the existing trails and hence here is where we find ourselves.

I'm not a legal mind. I just offer the perspective that there could be precedent once again made that might be negatively challenging to the general public with the other cases and issues of access. Both here in the Crazies and otherwise.

I would be most certainly hopeful and optimistic. And again I am not privy to the internal discussions here. But I am curious as to the actual availability and and relative "ease" with which sufficient funding could be secured from "outside" sources to put forth for the new construction of a trail segment as identified here. And what would appear to be a project that the FS would need to plan for and budget into their Program Of Work to complete the NEPA requirements and the other planning requirements for a new trail. While all the while seemingly "abandoning" an existing legal right of way. Just my perspective.

I sure appreciate and respect the viewpoints and thoughts put forward with this update. Thanks RobG.
 
While I can see the benefit on compromise on a lot of issues. Landowners illegally closing off public access is not one. I wouldn't give an inch or they'll take a mile.
We don't feel it's a compromise as it seems to be a win/win. Time will tell. Nobody will get locked into this before the pros and cons are understood.

And thanks for the words Ranger.
 
Rob thanks for the update. A win win is good as long as common sense is applied. I understand fears of setting a precedent but change can also be good if done for the right reasons.
 
there will never be a WIN/WIN until the legal situation of existing access is proved in the court system,,,,,,, we might get a new trail but we, the public, would give up a supposed legal trail, seems a slippery slope,,,,
 
there will never be a WIN/WIN until the legal situation of existing access is proved in the court system,,,,,,, we might get a new trail but we, the public, would give up a supposed legal trail, seems a slippery slope,,,,

I agree. Not sure I like where this is going to lead us.
 
is there such a thing as a "conservation easement" to be purchased on the existing trail, if the goal is least amount of time and money spent and to get a access route into this area,,,,
 
Is the same landowner that wrongly posted a public trail the same landowner who is offering the easement?

If so, that would make this a little better. If not, it seems like an unacceptable solution. Either way, it seems to set a precedent of tactic: If you don't like the location of a public easement through your property, whether you want it moved or gone, just post it with No Trespassing signs. I think that's why folks are apprehensive. This solution lacks the justice of punishing those who have wronged the public. (and I think by punishment I mean formal acknowledgement that they were wrong). I understand you are looking at it from a consequentialist perspective, and pros vs cons. Thanks for the update.
 
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...there will never be a WIN/WIN until the legal situation of existing access is proved in the court system,,,,,,, we might get a new trail but we, the public, would give up a supposed legal trail, seems a slippery slope,,,,
300stw, that is a valid point worthy of strong consideration. It is also helpful to consider that such a new trail section agreeable to the landowner is not precedent setting, as it has occured before. The reality of the larger access to public lands challenge is that there are so many places where this dynamic has and is happening ... Public Land Water Access Association (PLWA) has limited resources (time, money, volunteers, legal assistance, etc.) and although PLWA and other organizations have seen important successes, still priorities have to be established because of the large number of access issues.

And, of course, the critical consideration is that the goal is firmly established public access to public lands via routes legally recognized and respected by all for perpetuity. There are often a number of "trails" which can lead to that goal ... in this case the proposed compromise and new trail section may offer the "least steep gradient" to success.
 
300stw, that is a valid point worthy of strong consideration. It is also helpful to consider that such a new trail section agreeable to the landowner is not precedent setting, as it has occured before. The reality of the larger access to public lands challenge is that there are so many places where this dynamic has and is happening ... Public Land Water Access Association (PLWA) has limited resources (time, money, volunteers, legal assistance, etc.) and although PLWA and other organizations have seen important successes, still priorities have to be established because of the large number of access issues.

And, of course, the critical consideration is that the goal is firmly established public access to public lands via routes legally recognized and respected by all for perpetuity. There are often a number of "trails" which can lead to that goal ... in this case the proposed compromise and new trail section may offer the "least steep gradient" to success.

I've underlined the comment above, as it is relevant. There is no binding precedent when willing parties make an agreement.

Also, as much as a legal clarification is the desired outcome we would all hope for, that comes with significant costs and huge risks. In business, you never litigate unless you know the outcome beforehand. You never put your fate in the hands of a judge or a jury if you can keep it in your hands.

Say it is litigated and the case is decided in favor of the landowner. That will establish a binding precedent; not the precedent you hope for. Some may say it is a slam dunk case. No such thing exists.

Additionally, these kind of cases can take years and years, which equates to mountains of money. Look at the Kennedy case on the Ruby River. He appealed and appealed. He, like many of the part-time resident landowners in Montana, have more money than public land advocates.

Is some non-court settlement the perfect outcome? Not if you believe the public has an airtight case that can be successfully litigated with little risk, low cost, little ramification.

Is a non-court settlement worth considering? I think so. Especially when considering how many risks come with litigation.
 
Is the same landowner that wrongly posted a public trail the same landowner who is offering the easement?
Yes.

I admit it is a bit hard to give the guy who posted the trail what he wants, but I wouldn't support it if I didn't think this trail offers better access than the existing trail. And also, make no mistake, the right to litigate this trail will be reserved.

Also, the landowner broke no law in posting this. This trail has no RECORDED easement so it is perfectly legal to post the trail under current Montana law. If we want it back open the law requires us to go to court and PROVE the trail meets the criteria for a prescriptive easement. If we prove it, the easement will be recorded and then the landowner has to take down the sign. It sucks that the landowner has nothing to lose by posting the trail other than enduring the hell we raise, but that is the way it is.

I think when the details of this plan come out people will agree with me. I am interested in feedback, especially issues that you see, so feel free to email me at [email protected].
 
Just looking at it from hunting opportunities, the new trail sounds like it would be much better as it would unlock new public land. Right now it looks like you have to walk 5 miles as the crow flies (much more trail miles I'm sure) to get to section 2. I'm sure most folks would use the trailhead to the south, since it's much closer. The new trail would allow you to hunt the whole way down to section 2.
 
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