The Custer Gallatin National Forest’s rights to access historic trails in the Crazy Mountains “died” because landowners successfully blocked access denying the public for five years, Assistant U.S. Attorney Mark Smith argued in a Billings federal court on Tuesday.
Under Montana law, a prescriptive easement — in this case public access across private land — requires “open, exclusive, notorious, hostile, adverse, continuous and uninterrupted use” for a five-year period.
“The Forest Service clearly believed prior to the 2006 [travel plan] it had an easement interest, agreed?” questioned U.S. Magistrate Judge Timothy J. Cavan.
True, Smith responded, but those claims “degraded” by the time the Forest Service decided in 2018 to reroute the Porcupine Lowline and Ibex trails on the west side of the mountain range.
Although the Forest Service may have eventually lapsed in defending public access to the historic trails prior to rerouting them, members of the public continued to use the paths in defiance of no trespassing signs and brush blockades, plaintiffs’ attorney Matthew Bishop argued.
“My clients care very deeply about this area,” he said, adding that the importance of the trails “cannot be overstated.”
The exchanges between Cavan, Bishop and Smith were part of a case being closely watched by access advocates nationwide, a lawsuit arguing the Custer Gallatin National Forest ignored federal environmental laws and public involvement in an agency decision when it decided to re-route two trails.
It also challenges Forest Service management of two east side trails in the Crazies.
The suit was filed in 2019 by Friends of the Crazy Mountains, the Montana Chapter of Backcountry Hunters and Anglers, Enhancing Montana’s Wildlife and Habitat and the Skyline Sportsmen’s Association.
The groups sued after the Forest Service decided in 2018 to reroute the Porcupine Lowline and Ibex trails onto adjacent federal lands and off portions of the adjacent M Hanging Lazy 3 Ranch, negotiating an easement across shorter portions of private land. The conservation groups’ request for an injunction to halt the trail work was denied, and the finished trail was quietly dedicated this summer.
The groups nonetheless argue that the Forest Service failed to carefully evaluate the environmental effects and possible alternatives in a public process, Bishop argued.
“That’s really what this case is about,” he said.
Instead, the agency relied on a scoping document and referenced its 2006 travel plan and 2009 forest plan in making its decision.
Assistant U.S. Attorney Randy Tanner said the groups’ claim overlooks the “nearly two decades of hard work that led up to scoping,” including studies looking at vegetation and wildlife completed for the forest and travel plans. The planning work also offered the public ample opportunity to comment, he added.
When Cavan questioned whether the National Environmental Policy Act, which requires the agency to consider the environmental impacts of its work, “lives or dies” in the forest plan, Tanner said he preferred a more holistic view that also looked at the other planning work in totality rather than isolating one over the other.
“There’s no clear error of judgment on the part of the Forest Service,” Tanner said.
On the east side of the range, the trail users told Judge Cavan that Forest Service officials made a decision around 2017 to stop defending the agency’s historic easement on two other paths once used by forest rangers to patrol the region.
The Crazy Mountains are known for checkerboard land ownership, interspersing public and privately owned properties. More than 8,000 acres of forest land in the Crazy Mountains is only accessible by crossing at the corners where the parcels meet, the legality of which has yet to be tested in court.
The private inholdings 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 land to individuals.
The old trails circling the mountains are connected to Forest Service cabins that still exist. These trails were created in an era without consideration to land ownership, often navigating the lower portion of the mountains where they crossed private property.
The Forest Service had long defended its unperfected prescriptive rights to access the routes, claiming continuous use. In 2017 a shift seemed to occur after the Livingston District Ranger, who had advocated for public access along the old trails and conducted work to improve the routes, was reprimanded and temporarily reassigned, the trail users argued.
Tanner said the plaintiffs argued the Forest Service hasn’t done enough to defend its interest in the trails, but he said there has to be some “specific duty” that the agency failed to take. Otherwise, such activity is discretionary.
Bishop disagreed, saying before the agency could relinquish an easement interest there should be a public process.
Assistant U.S. Attorney Smith said the federal government only litigates easements on a case-by-case basis based on the prosecutor’s discretion. Only the Forest Service is “best positioned” to determine if it’s a good policy move, he argued.
“The Forest Service has to be mindful of these interactions with its neighbors,” Smith continued. “When there is a bona fide historic use we will go to the mat.”
The agency did that in successfully defending its access across the Wonder Ranch in the Madison Mountains in 2018, Smith said, but a fight over the Crazy Mountain trails is not a winnable case.
John Sullivan III, chairman of the Montana Chapter of Backcountry Hunters & Anglers, said the group is asking the court to compel the Forest Service to follow its own process and allow the public to participate.
“We are happy to have had our day in court to be heard on these issues,” he said in an email. “Judge Cavan asked great and pointed questions about our argument and we came prepared with answers. We’re very happy with how it went, and we look forward to Judge Cavan’s ruling.”