http://billingsgazette.com/lif...40-b4efa00dab1e.html



PUBLIC ACCESS IN DISPUTE
Landowner contests Forest Service trail in Crazy Mountains

By BRETT FRENCH french@billingsgazette.com 18 hrs ago



A Big Timber-area landowner and the Forest Service have locked horns over an old trail that crosses private land on the eastern face of the Crazy Mountains to access hard-to-reach federal lands.

Hailstone Ranch owners Lee and Barbara Langhus have hired Livingston attorney Joseph Swindlehurst to counter the Forest Service’s contention that Trail 115, also shown as Trail 136 on some maps, is a public prescriptive easement across their property.

“My clients are not aware of any easement that the public or the Forest Service has to cross their property,” Swindlehurst wrote in a March 25 letter to Alex Sienkiewicz, the Yellowstone District ranger based in Livingston.

Old trail
The Forest Service sees things differently.

“As far as the trail at issue, it is a century-old trail, part of a century-old trail system that circumnavigates the Crazy Mountains and connected historic U.S. Forest Service guard stations,” Sienkiewicz wrote in an April 19 response to Swindlehurst’s letter.

The Billings Gazette received a copy of the correspondence between Swindlehurst and Sienkiewicz — three letters — through a Freedom of Information Act request. A message left for the Langhuses was not returned; instead Swindlehurst returned the call.

Checkerboard
Unlike many other mountainous areas in Montana, the Crazy Mountains are unique in that they contain a patchwork of private and Custer Gallatin National Forest lands. More than 8,000 acres of forest land in the Crazy Mountains is not accessible because the sections are surrounded by private land and because crossing from public land to public land at property corners is illegal in Montana.

The private holdings are remnants of the 50,000 acres in the Crazies given to the Northern Pacific Railroad by the U.S. government in the 1860s as payment for building the transcontinental rail line. In the 1890s the railroad began selling the lands to individuals.

It was in the early 1900s that Ole Langhus homesteaded along Big Timber Creek and began raising sheep, according to a family history posted online. Ole is Lee Langhus’ grandfather.

The land that Trail 115/136 crosses has been owned by Lee Langhus for about 45 years, according to Swindlehurst’s letter. In that time the family has not been aware of any public use of the route, he added. The Langhuses now operate Crazy Mountain Ranch Hideaway Cabin rental on the property, touting the beauty, quiet and exclusive access to streams and wildlife on the ranch on their website.

Sienkiewicz has countered that the route “has always been on official forest maps and was vetted in such legally mandated public processes as the 2006 Gallatin Forest Travel Plan.”

Access seekers
The reason the trail has only recently become a bone of contention is that Sienkiewicz said he has been contacted by several sportsmen over the past year who complained of a locked gate across the trail and a remote camera monitoring who enters. When those people contacted Sienkiewicz, he told them that the Forest Service’s position is that the “agency and the public hold legal rights” to use the route.

Billings hunter Joe Rookhuizen said he saw the route on a forest map last year and decided it would be a good way to access federal lands in the Crazy Mountains that are otherwise difficult to reach. Public access to the Crazies along the entire 35 miles of their eastern flank is limited solely to Big Timber Creek.

Rookhuizen contacted Sienkiewicz and then called the Langhus family, leaving a message to let them know he planned to use the route. Langhus didn’t return Rookhuizen’s call until after he had already left for the hunt, but Langhus warned in a message left on Rookhuizen’s phone that he would be trespassing if he used the trail.

Swindlehurst countered Sienkiewicz’s claim that a prescriptive easement exists saying it “must be proved by clear and convincing evidence. It is not up to my clients to prove that no prescriptive easement exists across their land. If the Forest Service or the public thinks there is a prescriptive easement across the land, then it is up to them to prove it.”


Burden of proof
It’s that stance that has prompted the Public Land/Water Access Association to attempt in the last two legislative sessions to pass a bill that would alter the dynamic. Instead of a landowner being able to gate and lock a road or route and force the public to sue to prove it should be open, the onus would be put on the landowner to prove the route isn’t public. Both bills have died in committee.

“The burden is on the public to prove an access is public,” Sienkiewicz said.

Largely for that reason, access to public lands has become a hot button issue across Montana, often pitting landowners — and sometimes their agreements with outfitters for exclusive hunting rights — against public hunters and anglers. The disputes have become more common in the past two decades as many older ranches are sold to new owners who possess different values and desires. One of the big selling points for many large parcels is exclusive access to federal land as well as healthy big game populations for hunting.

“I’ve been hiking in the Crazies since I was a youngster,” Rookhuizen, now 36, said. “I continue to see more and more access shut down.”

It’s also something Sienkiewicz has encountered elsewhere in the Crazy Mountains — the Porcupine Trail, No. 237, on the western side of the range similarly weaves through private land where it has been blocked off.

An offshoot to the access issue is that the lack of public hunting access to some private ranches has led to the growth of large elk herds. The state’s main means of managing those elk numbers is through public hunting, so without access many herds have grown beyond some ranchers' tolerance levels since the elk can compete with cattle and sheep for feed. The state’s game managers have been frustrated in attempts to try and reduce elk numbers without having public hunter access to private lands.

Blocked
Sienkiewicz sees the Langhuses’ attempt to block public access as a way to deny that a prescriptive easement exists by keeping the public off the land for five years.

“The history is that the Forest Service has not filed many lawsuits on these access suits lately,” Sienkiewicz said, although the Yellowstone District did see a recent success when access was restored to the Cherry and Deer creek areas south of Big Timber. Yet that only occurred after the landowner was threatened with the possibility of eminent domain proceedings.

The agency would rather compromise with landowners, and in his letter Sienkiewicz extended an olive branch to the Langhuses. Swindlehurst wrote his clients “probably would consider a further discussion with the Forest Service Supervisors” of a land swap.

For now, the Sweet Grass County Sheriff and Montana Fish, Wildlife and Parks is taking a hands-off approach to the dispute between the Langhuses and the Forest Service.

Sheriff Dan Tronrud said he has not received any trespass complaints so far. If one is made, he said he or one of his officers could cite the individual and leave it up to the county attorney to decide whether to prosecute.

“If it’s a feud between the Forest Service and a landowner, they need to settle that themselves,” he said.

Likewise, Montana Fish, Wildlife and Parks' Bob Gibson said his agency wouldn’t get involved other than to state that FWP supports public access to public lands.

“We haven’t done any research on it, and no one has asked us to,” he said.

Sienkiewicz sees protecting the old trail as a public access point as part of his duty to the public and to his children and grandchildren.

“We represent the general public,” Sienkiewicz said. “These access points are a big part of their lives.”

Talk about a land grab

The Land Grant Act of 1864 gave the Northern Pacific Railroad alternating sections of land on each side of the railroad right of way extending 40 miles to the north and south.

Between Lake Superior and Puget Sound the total land given to the railroad has been estimated at 47 million acres, the largest federal land grant in U.S. history.

Of that 47 million acres, 17 million came from the state of Montana. Here’s the reason why: At the time Montana was still only a territory. In territories, the Northern Pacific could claim twice as much land, extending the land grab 80 miles to the north and south of the rail line.

That’s how the Crazy Mountains ended up with such an unusual quilt of private and public land.

Swindlehurst, what an appropriate name for an attorney.

Land grab, indeed. The checkerboard pattern enabled the railroad to effectively control TWICE the amount of land that it was otherwise given, thereby doubling its booty and restricting access to "public lands" by anyone other than the railroad -- or its successor owners. You can bet that when the railroad sold that land that the price was substantially enhanced due to the fact that for every acre the buyer paid for he effectively got exclusive use of another acre for free.

I have some sympathy for the rights of the owners of the private property which they may have purchased 100 or more years later, but they knew they were buying into a scam designed to cheat the public and should have recognized that the scam would eventually come to an end.

I would not screw around too much with these greedy selfish bastards....I would invoke eminent domain and take a bit more than I otherwise would...just to show them who protects the public's interests. THAT is what the ED act is all about.

Funny thing is, all these landowners knew that when they bought the lands aka our new republican nominee for governor in MT Mr. Gianforte
First he was gonna shut down public fishing access and now he acts like a saint who allows people fish the river
Fuck me...

quote:

Originally posted by Woodrow S:
I would not screw around too much with these greedy selfish bastards....I would invoke eminent domain and take a bit more than I otherwise would...just to show them who protects the public's interests. THAT is what the ED act is all about.

There ya go!!!

A friend just gave me a copy of "Shooting Sportsman" magazine July/August 2016 P 22, it has an article of issue much like this. Look at Montansa Public Land and Water Access Association and likely a case with that name vs Roger Jones.

Do not personally have any knowledge about the organization.

You can find them at www.plwa.org to do any due diligence

Sounds like someone trying to set up personal access to US owned (meaning us as in you and I) property.

ANY Public land the public cannot access should be classified as "Restricted: No Entry" for everybody.

Huey Lewis has ranch here in Montana and fought over public access, trying to shut down original branch of Bitterroot river that had irrigation gate on it from way back
MT Supreme Court ruled in favor of people and Huey was livid and called them dumb asses
Pretty sad behavior on his part
Funny thing was, it was always public stream and people always fished there until he bought that and then all hell broke loose
For your info, MT Constitution guarantees all moving water is public up to high water mark

I think the landowners will have a hard time getting around the fact that the public has openly and obviously utilized this trail for "over 100 years" thereby establishing a prescriptive easement.

I can see the frustration for the landowners...the trail was never recorded on a the deed. But c'mon, don't run for Mayor of Doucheville; let sleeping dogs lie!

You buy land, you know what you are getting into
Specially big land owners who have the means
They know, they have lawyers do research and they raise hell after they aquire the tracts
Well, cry me a river

Check back in time about the "Sagebrush Rebellion".

I think if people will do just a little research this was one of the issues with the Bundy's, denying access to Public Land by the Public.

CrazyHorse, Why is it you are so against public land access? This is not the only forum you have professed antagonism toward public hunting and fishing lands.

What ARE you getting on about??????

You really need to take some courses in reading comprehension, and learn how to actually READ, NOT, READ INTO!

I have never had, nor will I ever have a problem with Public Access to Public Lands.

How did you come up with the off the wall statement you made.

The statement I made about the Bundy's concerned the possibility/probability that the Bundy's WERE denying Public Access to Public Lands they were using/controlling.

quote:

I think if people will do just a little research this was one of the issues with the Bundy's, denying access to Public Land by the Public .

Can you not read and comprehend? No one should ever be in a situation where they can deny access to Public Land, main damn reason I am against the various proposals that have been made by Western Governors trying to gain control/ownership of Federal Public Land, because it would be sold to the highest bidder and the Public would be locked out forever.

I am doing my level best to be civil toward you, but you really need to learn how to read what a person is actually saying instead of putting your own personal spin on things.

The ONLY concern I have about Public access to Public Land across/thru Private Property deals with litter and people NOT staying on the road/trail thru the Private Property.

I was born and raised in Texas, where there is very little Public Land, so I think that Public Lands should be that, open to the Public. However as a hunter and fisherman I know real well how uncaring/irresponsible some members of the Public can be, both on Public Land, but also on the Private Land they are going across.

I also am well aware how possessive Private Landowners can be, even toward those that have an access easement across their land.

I don't know where you came up with the crap you came up with, but you are so far off base as to be laughable. As I said, I can remember the stuff about the SageBrush Rebellion, when landowners on the same level as the Bundy's put gates across established access roads, not just trails, but gravel roads and locked the Public Out.

No Sir, I will never knowingly support any legislation that excludes the Public from Public Lands or Streams.

A lot of people in Texas, (land owners, hunting guides and consultants) are making a fortune off of the general public because there is virtually no public land. Hunts and hunting leases in Texas are only for the wealthy. A working man trying to raise a family can't afford to hunt in Texas. I live in Texas also. I go to New Mexico or Colorado to hunt. The cost of a decent deer lease in Texas ranges from $5,000 to $25,000 per year. Oh, you can find a lease for $2500-$3000 but it's a small acreage junk lease.
Quality elk hunts are $12,000 to $20,000 each. If you can control the access you can charge huge fees for elk and deer hunts. This is all about cheating the public so they can't use Public Land.

There is a really old law that states that landowners (including the Government)cannot prevent public access on pre-existing roads if the roads lead through said property into public land. I dont remember the specifics of the law, but I do know that it is still in effect in spite of the fact that it was put into place when the west was still a frontier. Of course, whether a court will recognize it for this case or that one is another story. It certainly seems to get overlooked when the Government is the one doing the land grabbing.

quote:

Oh, you can find a lease for $2500-$3000 but it's a small acreage junk lease.

That is simply not true.

Not derailing the present discussion, but good Trophy leases can be found for less than that, all a person has to do is look.

But on topic however, yes there is damn little Public Land in Texas and what little there is gets hammered so hard during the various seasons it really does make more sense to go out of state.

In reply to crazyhorse; I am so irritated with Texas hunting that I have left to do my hunting. To have a major state in the United States that still has it's property controlled by pre-1840 Spanish Land Grants is ridiculous.
I do look on a regular basis. What they call a trophy lease down here I call a junk lease. Those little, thin antlered deer are not what I call trophies.

Well I understand your feelings concerning hunting here in Texas and the "Pay To Play" concept.

That is just the way things are here and they are not going to change.

But this discussion concerns access to Public Lands being blocked by Private Landowners, and that is wrong. Existing, established roads or trails, accessing the Public Land across Private land should be kept open.

At the same time, the governing body that controls the Public Land should expend manpower/resources to ensure that the Public does not encroach on or leave trash on the private land they have to travel thru.

Gotta know where to look for affordable TX leases that can provide what you're looking for. I'll take private land in Texas, or anywhere else for that matter, over the limited draw, overcrowded/overhunted, public lands in most places.










Occasionally you can bump into one of these in TX.

Those deer are there. Especially in West Texas. But you're going to pay big bucks for them. Normally they are behind high fences and the fees are over $10,000, or you have to be related to one of the huge ranch owners. Good deer leases around here go for up to $25,000/year.

quote:

Originally posted by Crazyhorseconsulting:

quote:

Oh, you can find a lease for $2500-$3000 but it's a small acreage junk lease.

That is simply not true.

Not derailing the present discussion, but good Trophy leases can be found for less than that, all a person has to do is look.

But on topic however, yes there is damn little Public Land in Texas and what little there is gets hammered so hard during the various seasons it really does make more sense to go out of state.

There is a lot of land that the state controls that is not made public. Millions of acres actually. And your "have you considered leaving" comment points directly toward your antagonism of public hunting lands.

Its threads like these that really make me appreciate living in Wisconsin.

Buck Taken on Public Land:

I do leave to hunt. I can find better hunting, better trophy quality for less money out of state. Normally I hunt New Mexico, Colorado, Missouri. This year I'm deer hunting in Oklahoma and elk hunting in New Mexico, I've already been bear hunting in Alaska and varmint hunting in New Mexico this year. I'm no green horn and I've been hunting for 60 years.

PS. I'm done with this, I will not just argue on the internet.

quote:

There is a lot of land that the state controls that is not made public. Millions of acres actually. And your "have you considered leaving" comment points directly toward your antagonism of public hunting lands.

That "Comment" that you find so offensive is my signature and has nothing whatsoever to do with my thoughts/beliefs concerning Public Land and Public Land Access, I started using it in the ARPF topic area, AFTER another member made it, and all it concerns as far as I am concerned are topics in the ARPF section.

TP&WD opens up the lands they control as much as they possibly can. Federally owned/controlled land is also open to a certain degree. The system is not perfect, but it is what we have.

I have hunted Public Land in Colorado/New Mexico and Nebraska, and for at least the third time on this discussion, I have No Problem with the Public having ACCESS to Public Lands, that what those places are for. Private LandOwners should NEVER be able to limit or prevent access, and there IS access available to the Public Land in the State of Texas.

But this discussion is NOT about Texas, it is about Public Land Access in the various Rocky Mountain States.