Letter to the editor: Rule of law or rule of district ranger?

Montana is both blessed and cursed to have more than 40 percent of the state in public lands. As the “Treasure State” the blessings come in the form of mining, forestry, and agricultural jobs, and as the “Big Sky State” the blessings come in the form of clean water, spectacular scenery and abundant recreation. The curse, however, comes as we compete—dare I say fight—for the use of these lands. Whether it is a battle over a gold mine vs. wilderness, a trail for hiking vs. horseback riding or grizzly bear protection under the ESA vs. delisting and hunting of Ursus arctos horribilius, we all have our special interests. 

Having our special interests, however, is not necessarily a curse; the curse comes in how we express those interests. In the “good ole days,” we were neighbors who acted as neighbors. As bumper stickers from Fish, Wildlife and Parks used to say, “Ask first. It’s the right thing to do.” Today the neighborly approach has disappeared, likely due to changing socio-economic characteristics of the population—younger, healthier and wealthier—and to politics and litigation. 

Put this in the context of debates over access to public lands in the Crazy Mountains. Recently a district ranger with a law degree was “reassigned” because he wrote, “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.” That admonition alone tells much about the lack of neighborliness. 

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, appears to be gone, replaced by politics and litigation. Under the Obama administration, the Forest Service took a more strident approach in asserting claims to “traditional public access” routes. According to Mr. 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.  

Editorials and letters to editors in papers cheer for Sienkiewicz saying that he agrees with the contention that trails in the Crazies are public trails and he has the records to prove it. Perhaps he does have the records, but he is not judge and jury. In a 2016 letter to Senator Daines, Mary Erickson, regional Forest Service supervisor, calls them “unperfected prescriptive easements” and the Livingston National Forest Office labels most drainages in the Crazies as “disputed access.” In other words, judges have not ruled, Sienkiewicz’s “proof” notwithstanding.

Moreover, advocates for reinstating Sienkiewicz complain that it was dirty politics. Yes the national forests are public lands and yes Forest Service rangers are public employees, but the reality is that national forest are political lands and rangers are political employees. Melissa Baumann, President of the National Federation of Federal Employees Forest Service Council, recognizes that employees are “under the gun from the administration.” Before he was reassigned, Mr. Sienkiewicz told one of the ranchers whose private road leads to the national forest, to “Put on your big boy pants,” suggesting that battles—legal or political—were on the horizon. Indeed, the political winds changed when the new sheriff—President Trump—came to town, making it time for district rangers to don their “big boy pants.” 

The public access debate will continue to be a political football, punted back and forth by those in power, until we recognize that property rights are based on the rule of law, not the whims of men and women. The rule of law recognizes easements obtained by purchase or grant, and for those there is no conflict. Rather than encouraging trespass and fighting to establish continuous open, notorious and hostile use of trails, we would all be better served by recognizing property rights and cooperating with private landowners to get access. It is time to go back to the future and “Ask first.”

Terry L. Anderson, Bozeman


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