By TERRY ANDERSON
...Less well known on the national scene, but visible to those of us who live in Montana, are both administrations’ stance on private property rights and access to public lands. Back when politics was more civil, land management agencies cooperated with private owners whose land provides access to national forests. They purchased or negotiated easements and acknowledged the good will of landowners who allowed access, some literally through their front yards. When trying to get public access to Indian Creek south of Ennis, for example, District Ranger Mark Petroni said in 2006: “They [the landowners] have offered to partner with us to acquire an easement across their property, assist with acquisition of an easement across their neighbor and help fund NEPA [an environmental review] and construction of a new trail location that avoids their lawn. This potential partnership is too good to pass up.”
Such cooperation, however, changed under the Obama administration as the Forest Service took a more strident approach in asserting claims to “traditional public access” routes. The dramatic change is reflected in a posting by Yellowstone District Ranger Alex Sienkiewicz who publically advocated “NEVER ask permission to access the National Forest Service through a traditional route shown on our maps EVEN if that route crosses private land. NEVER ASK PERMISSION; NEVER SIGN IN. ... By asking permission, one undermines public access rights and plays into their lawyers’ trap of establishing a history of permissive access.”
According to Sienkiewicz and access advocates, traditional public access is sufficient to establish a legal right, known as a prescriptive easement, to cross private property. Centuries of legal practice, however, have required that individuals or agencies wanting to establish prescriptive easements must prove that access was continuous, open, notorious, and hostile to the owner. In other words, the access must be without expressed permission by the landowner, a burden of proof that has been difficult, to say the least.
The political winds changed when the new sheriff — President Trump — came to town. This spring, the heavy-handed approach of the Obama administration was brought to the attention of Secretary of Agriculture Sonny Perdue in a letter from Rep. Pete Sessions, R-Texas, and furthered by a meeting with Montana landowner interests in May. Thereafter, Sienkiewicz was reassigned to another district in order to “create some separation between Alex ... and allegations raised concerning access issues.” According to Melissa Baumann, president of the National Federation of Federal Employees Forest Service Council, this is a signal that employees are “under the gun from the administration.”
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