Terry Anderson on the Forest Service Ranger Alex Sienkiewicz scandal

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"Vintage Forest Service Signs" by Sam Beebe, is licensed under CC BY 2.0

Excellent commentary from PERC’s Terry Anderson on the scandal caused by National Park Ranger Alex Seinkiewicz, who urged enviro activists to trespass on private property:

For the eight years that President Barack Obama reigned in Washington, environmentalists cheered his agenda. There was his War on Coal, his signing of the Paris Climate Accord, his executive order giving EPA regulatory authority over all Waters of the United States (WOTUS), and his creation of more national monuments than any previous president.

“With President Donald Trump in the Oval Office, conservatives in favor of less government regulation are cheering. In a matter of months he has declared war on the War on Coal, withdrawn the United States from the Paris Accord, rescinded the WOTUS executive order giving EPA power to regulate virtually every drop of water in the United States, and sent Secretary of the Interior Ryan Zinke, on a mission to decide whether national monuments created in the past 25 years should be “rescinded, resized or modified in order to better benefit our public lands.”

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…

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 publicly 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.”

Read Mr. Anderson’s full opinion in the Missoulian.

UPOM Comments on EQC HJ 13 Road & Access Study

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"Porcupine Trail" by Elliot P. is licensed under CC BY 2.0

The Environmental Quality Council has spent a good part of their time during the interim in putting together a study to assess access on public land in Montana, in particular on how road closures on federal land have affected access.  Their study also looks at elk distribution and how less access may have affected elk harvests.  A copy of the draft report can be found here.

And below you can read the comments that we submitted to the committee:

What the Missoula Mountain Water case means for other Montana property owners

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"Missoula County Courthouse" by Lance Fisher is licensed under CC BY 2.0

The recent decision by the Montana Supreme Court in the Mountain Water case, in which the Court reversed itself from an earlier decision, has set new precedents that weaken the property rights for all Montanans.  It’s apparent to us that the decision was more politically motivated than grounded in the law—and we’re not alone, Justice Jim Rice described the Court’s conduct as “apparently hell-bent on condemnation” in his dissenting opinion.

This is an example of why Montana’s Supreme Court is ranked so poorly nationally.  Each time it reverses itself—and it does so often, hundreds of times in the last two decades—it creates more uncertainty about what the law really is.  And when the Court is viewed as a political animal—active in creating law rather than just interpreting it—Montanans lose faith that they’ll get a fair shake.

Understanding the Seyler Lane stream access decision

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"Hop in for the ride of your life," by Bugeater on Flickr, unaltered

In a recent ruling in an important case involving stream access, District Court Judge Loren Tucker in Madison County determined that issues concerning the balance of private property rights and prescriptive easements must be determined on a case-by-case basis, using evidence of County maintenance needs.  The public’s desire for access is not a factor.

Judge Tucker’s determination was made at the request of the Montana Supreme Court, which concluded that a public right-of-way exists on the Seyler Lane bridge which crosses the Ruby River in Madison County. While the Public Land/Water Access Association (“PLWAA”) have been eager to claim that Judge Tucker’s ruling was a victory for anti-property rights groups, the decision and its consequences are not so clear-cut.

In the dispute between PLWAA and Madison County it was noted that while most county roads have a right-of-way of 60 feet that is established through dedication of a public easement, Seyler Bridge was established through prescription (i.e. continuous public use) not dedication.  PLWAA argued that the public should be granted a 60-foot easement to be used for public access to the river.  Judge Tucker rejected that claim and instead granted a 5-foot easement on either side of the bridge, stating:

 “Madison County and the State of Montana via their agents have traveled upon a strip of ground between the abutments and the high water marks of the river extending an average of approximately 5 feet upstream and downstream from the ends of the bridge abutments. These distances inform the court of that which is reasonably necessary for use, maintenance and enjoyment.”