Wednesday, November 30, 2016

Forest Service trying to seize private land from Montana ranchers

by Charles Sauer

Chris Hunter and his co-owners of Wonder Ranch in southwestern Montana have decided it’s their time to be brave. They’re taking on the government and fighting for land that is rightfully theirs. “It is daunting and depressing, we felt afraid and cornered,” Hunter told me about the government’s actions. “You feel double crossed by your own government. You either have to sue them or it’s a done deal. It doesn’t feel like America, it feels like we are living in one of the horrible dictatorships that we read about in history books.” The issue is that the U.S. Forest Service likes a quarter-mile-long trail that happens to cut across Wonder Ranch’s private land. For decades, the ranch’s owners have happily granted access to both the public and government employees anytime they’ve wanted to use the trail, which happens to cross through their front yard. It’s been an amicable relationship, but an uncertain one. “[You] have been very cooperative in allowing us to cross your land to get to the National Forest,” Madison District Ranger Blaine Tennis wrote in a letter to Wonder Ranch, all the way back in 1960. “However, a new owner may not be so inclined and the federal government would possibly have to resort to condemnation proceedings [sic] which are lengthy and costly to both parties involved.” Mere access wasn’t enough – a bully always wants more, you see. At Wonder Ranch, access alone wasn’t enough for the Forest Service: It wants to steal the land now. There was an alternate proposed route that didn’t cut through the ranch’s front yard. The Forest Service could have reached an amicable conclusion with the landowners. But that wasn’t enough for the Forest Service. Nope, the bully never stops. The Forest Service, by fiat, claimed an easement through the ranch. The owners of the ranch shouldn’t have to wage this war, but they are, and we should all get behind them. Fortunately, their supporters are starting to line up. House Rules Committee Chairman Pete Sessions, R-Tex., is behind them and their right to their property. “The government shouldn’t bully anyone,” Sessions told me. “The government’s job is to defend our rights, our freedom, and our property. What the Forest Service is doing in Montana is a gross abuse of power.”...more

I decided to take a look at this. There is more to this case than columnist Sauer shares. It turns out an easement was granted under Montana law. Here is more from the Bozeman Daily Chronicle:

U.S. District Judge Sam Haddon ruled that there was a public prescriptive easement — meaning an easement that isn’t in writing — on a trail that crosses the Wonder Ranch, a property south of Cameron near the Indian Creek Canyon. The decision upholds the U.S. Forest Service’s claim that the trail is entirely public and rejects the landowners’ claim that access — however ample — was granted by their permission. John Bloomquist, an attorney for the plaintiff Wonder Ranch LLC, said they are reviewing the decision and will decide whether to appeal, but that their position remains that public and administrative use of the trail “has been a product of the landowner’s cooperation and permission.” Court documents say the landowners’ spat with the Forest Service began when the owners of the Wonder Ranch put up gates and signs that asked people to dismount horses and leash their dogs while passing through the property. Court documents say they put up another sign sometime between 2007 and 2009, saying access was given “by gratuitous permission of the landowner.” The Forest Service asked the owners to take down the signs and leave the gates open. The dismount and leash signs were removed, but not the one claiming access was given by permission of the landowner. Forest officials in 2011 filed a document with Madison County asserting that the trail was public. In response, the owners of the Wonder Ranch filed a lawsuit against the Forest Service in 2014. The suit argued that the agency’s claim of a public prescriptive easement had “no validity whatsoever,” citing a 2004 letter from the then district ranger saying that there wasn’t an easement on the property. But after two years of dueling motions, a trial and a judge’s tour of the property, the court sided with the Forest Service. Haddon’s opinion says records of the trail go as far back as 1888, and that it was included in a 1940 Forest Service map as trail No. 328. He went on to write about the cavalcade of users the trail has seen, from ranchers moving livestock along the trail as it crosses the property in the ’30s and ’40s to the hunters and hikers that have been using the trail in increasing number since the 1980s. Haddon wrote that during the warm seasons in the 1990s, the trail saw between 10 and 20 users a day. That established that the trail saw ample and varied use, but part of the case hinged on whether the trail users asked for permission. If trail users were consistently asking the landowner for permission, it would show that the landowner was actually granting access by “gratuitous permission,” as claimed by the sign they put up. But Haddon wrote that the majority of trail users didn’t ask for permission. Ranchers trailing livestock in the last century did so without asking permission and a number of outfitters, hunters and hikers using the public lands accessed by the trail did so without asking permission, supporting the argument that the trail was public.

There are some lessons to be learned here. For those interested the decision is embedded below.

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