Crazy court ruling threatens all public lands

[East side, Crazy Mountains of Montana]

Change is coming to what I think is Montana’s most alluring “island” mountain range, the Crazy Mountains.  It’s about to become the latest in a long, tortured history of celebrity destinations dotting the American West.  As the success of Big Sky ski resort, the Yellowstone Club, and Moonlight Basin (northwest of Yellowstone National Park) have demonstrated, there is plenty more opportunity here in Southwest Montana if you’ve got deep pockets and high-level political connections in Washington, D.C.

Hikers and hunters have been battling the U.S. Forest Service and Bureau of Land Management to maintain access to public lands for decades.  Local ranchers have been illegally posting “no trespassing” signs to keep hunters and hikers out of their backyard, and off their private land.  But the ownership pattern is complicated in a “checkerboard” of private and public sections (640 acres, or 1 square mile, per section) that originated when the railroad was given title to every other section.  Under the Union Pacific Act of 1862, Congress granted every other section along the railroad – in one square mile blocks — to Union Pacific and retained the alternate sections as federal government lands.

Until 2017, federal agencies were consistently maintaining public trails, and preserving public access as a matter or policy.  The controversy came to a head recently in a lawsuit filed by hunting and access non-profit groups fed up with landowners’ intransigence and constant harassment of random hikers using the historic access in existence for over 100 years.  During the lawsuit proceedings, the federal agencies reversed its position, and sided with the sheep and cattle ranchers.  The federal court judge sided with defendants, against Montana citizens and out-of-state recreationists who have enjoyed public access as much as the locals.

The following is taken from an opinion piece by Brad WIlson, founder of Friends of the Crazy Mountains, titled Forest Service Policy Shift Bodes iLL for Crazy Mountains and Elsewhere:

To celebrate Judge Timothy Cavan’s ruling is to ignore the following facts, none of which are in dispute, and all of which were on display in court. The four trails in question were built and maintained with public dollars and appeared on USFS maps. These trails were enjoyed by the public for nearly 100 years. The trails were designated by the USFS as public without restriction in their travel plans which were successfully defended in court against these same landowners. The USFS maintained this position until 2017, when they simply stopped defending the trails and suspended the ranger who was removing the illegal obstructions (the USFS’ words, not mine) all on behalf of Montana’s citizens.

The Forest Service is now defending the federal judge’s decision to dismiss the 2019 lawsuit by public-interest groups that accused the agency of failing to protect access to a section of Montana’s Crazy Mountains.  Plaintiffs have argued that the Forest Service is required to protect public access to the following four historically maintained trails managed by the Custer-Gallatin National Forest: Porcupine Lowline, Elk Creek, Sweet Grass and East Trunk.  Private landowners now have support of the federal government to construct and maintain gates with “no trespassing” signs prohibiting public access across their land.

To further complicate the mess created by the government’s abandonment of public access, there are credible rumors floating about that the 18,000-acre Crazy Mountain Ranch (known to most locals as the Marlboro Ranch) in the southern Crazies may be under new ownership to the same outfit that owns the Yellowstone Club – CrossHarbor Capital Partners – who operate adjacent to Big Sky.

CrossHarbor, a commercial investment firm with particular expertise in purchasing distressed properties, bought the Yellowstone Club in bankruptcy court in 2009.Within six years, the Boston-based buyers had created what CrossHarbor co-founder Sam Byrne described as “the most successful residential resort subdivision in the country, if not the world,” where properties sell for between $2,500 and $3,000 a square foot.

Back in 2012, David Leuschen, an energy magnate and Yellowstone Club member who made Forbes’ 2013 list of top dealmakers, purchased the Lazy K Bar Ranch, which had been the first dude ranch in the Crazies, and renamed it Switchback Ranch, establishing consistency with another property he owns in Cody, Wyoming. Switchback Ranch includes 15 square-mile sections within the Forest Service boundary, several of which exceed 8,000 feet in elevation. None of the sections share a boundary, so the ownership pattern is classic checkerboard.

https://montanafreepress.org/2021/06/11/what-does-future-hold-for-montanas-crazy-mountains/

My interest is in protecting wildlife habitat and large landscapes for wide-roaming species that are most impacted by habitat fragmentation and motorized uses that displace wildlife from their historic range.  There is a “checkerboard effect” on wildlife.  For example: If you walk in a straight line through checkered landscapes you would cross a boundary between private and public sections roughly every 20 minutes.  A grizzly bear’s range can be up to 500 square miles, crossing these ownership boundaries with different management emphasis and different legal standards under the provisions of the federal Endangered Species Act.  As a wildlife advocate, just how does one compromise away the ability of wildlife to persist?  Hasn’t wildlife habitat and their very existence been compromised enough? Dare we ever say, “no” to neoliberal fantasies of deregulation and objectification of nature to the extent that everything is a transaction, or simple arrangement/contract between a buyer and seller in a so-called “free market?”  I suppose we have “The Enlightenment” to thank for the inhumane conditions we have been conditioned to accept as a modern, “civilized” society.

The Crazy Mountains in Montana. National Park Service/Wikipedia

https://en.wikipedia.org/wiki/Neoliberalism

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The above was written by Steve Kelly, a lifelong advocate for open space, wilderness, and protection of wildlife, especially endangered species. The words below are from me, Mark Tokarski, as Steve and I agreed to work jointly on this piece.

First, non-Montanan readers might not be familiar with the Crazy Mountains. The area circled in red on the map to the side here gives the approximate location. On a normal map, those mountains would be north of Big Timber, Montana, about halfway between Bozeman to the west and Billings to the east. Montana is a huge state, the fourth largest after Alaska, Texas, and California.  It has a population of about 1.1 million people, just slightly larger than that of Austin, Texas.

Steve has long referred to Montana as a “resource colony,” that is, the people of Montana do not get much benefit from vast reserves of copper, coal, natural gas and timber. Those resources are mined by large out-of-state concerns, and that is where profits from their development go as well. However, Montanans (I am still one at heart, having lived there for the first 59 years of my life) have always had access to National Forests and wilderness areas, along with rivers, streams and lakes. The Cavan ruling (since affirmed by a higher court judge) threatens that. For instance, areas in southwestern Montana have long been taken over by wealthy concerns. Places like Big Sky Resort, including Moonlight Basin, and the Yellowstone Club are exclusive playgrounds and residences for the wealthy. Our fear is that this court ruling will take the Crazies down that same path.

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I grew up in Billings, and later moved to Bozeman, Montana. I spent a lot of time hiking and camping the Crazies. I took my kids there, and led hikes to Blue, Thunder and Granite lakes on behalf of the former Montana Wilderness Association. The idea behind MWA hikes was to get people into these areas, and get them to take ownership. The court ruling has effectively given de facto ownership of public lands within the Crazies to private landholders within the area. That, to me, is a reverse “taking”, or seizure of public lands by private interests, and without just compensation.

My wife and I traversed the range in the early 2000s. It was something like a 25 mile hike, and we camped two nights. The first night we heard snorting, and lay still as a bear passed through our camp. He was after our food, which, per Forest Service advice, I had hung from a tree ten feet out from the trunk and ten feet up in the air. The next morning we saw many footprints beneath the food, which was still intact. (We laughed that the wall of our tent had protected us.)

The following day we summited the high points, and made our way down to Moose Lake, which was on private property. We were allowed to hike through there, but not camp. A huge storm passed through, and I fired up my camp stove as we stood under a tree and made Lipton chicken noodle soup. Not a big deal, just one of those memories associated with taste and comfort that lingers on for years.

That night we stayed at Campfire Lake, a place where many people camp, and where, consequently, there is lots of salt available from human urination. Mountain goats come down at night to eat sand, gravel and grass and get their fix of salt. We heard them outside our tent the entire night.

[Map showing approximate locations of closed trails. Closing them effectively locks the public out of all public land, the green squares.]

I have many fond memories of the Crazy Mountains, and am very upset that this judge arbitrarily shut down four trailheads. (There are only three arrows on the map above, as the arrow upper left points at a junction where two trails begin.) As I recall from my school days, there is such a thing as easement, wherein if you as a property owner fail to assert your ownership rights for a period of time, say, like, 100 years, by allowing the public to pass over private land that stands between tracts of public land, the easement becomes permanent. Judge Cavan has thrown out this centuries-long tradition from English Common Law. True, Common Law is not statutory law, but is an American as well as British tradition. It is my opinion that Cavan has legislated from the bench, and is an activist judge. He claims he had no choice but to rule as he did. I doubt it.

There is talk of an appeal of the court decision. For right now, permanent barriers are being erected, and the public has been kicked off of public lands. It could be that current generations are not as active in the outdoors as were we baby boomers. It could be that with the shrinking of our age group and due to our aging, places like the Crazies have lost an important part of their constituency. If true, it is true everywhere, and a long tradition of outdoor activity in our common lands is endangered.

The postcard below is one I made and had printed and distributed in around 1994. The slogan “Keep Public Lands in Public Hands” became widely used. I should have copyrighted it. The photos were taken by my brother, and I was able to use equipment owned by a Billings campground company, KOA, to blend them. (Technology was not well advanced at that time. It took an expert to do it as I sat and watched.) Also, at that time, Montana Wilderness Association, lower right of the card, stood for something besides collaboration and playing nicey nice. They are now an industry front group, completely comprised of eunuchs parading “Don’t be nasty now!” banners. What the new managers of MWA (now called “Wild Montana”, getting rid of the word “wilderness”) did took nothing more than cowardice. That feature of the human animal is always in abundant evidence.

35 thoughts on “Crazy court ruling threatens all public lands”

  1. Does the seeming lack of interest in terms of lack of comments to this piece by your normal readers in something you are so passionate iritate you at all? I’m kinda thinking comments = interest.

    I have come to the point of feeling hopeless even though I feel it is wrong to feel that way I believe. Like, in my mind, if I was you who authored this piece, (especially earlier on in my awakening a few years ago) I would hope that people (your readers) would share my concern and want to take action because it seems we share similar beliefs. But, in the end, (I want to say there is no action taken), but really there are a few people who take the call and try to walk the walk, but it seems to me just far to few and so I gave up.

    The system is so overwhelming. I used to make videos thinking they would help bring people together to take action. Now it just seems like it was delusional and foolishness. So I am hopeless.

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    1. How do you think people can possibly take action? Voting, protesting, letters to political parties? It seems the only way to take action is by buying land yourself (or possibly as a group) until it is taken from you.

      I have also changed my views on what is possible and how to go about it. We had over 99 percent of employees against vaccine mandates at my work and a promise from our company it would not happen, yet it happened.

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      1. When I was more optimistic a few years back, I thought people could change anything by just getting together to make the change, I do not believe in the court system at all. I do not believe in the government system either. I also do not have any idea how either could really be replaced, peoples values are just not really strong enough maybe.

        Also I think if any group is gaining traction than they are targeted and subverted by infiltraitors who at a minimum divide the group and often just take it over or both lol.

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    2. Anything you strongly believe in is never “delusional and foolish”. That’s just a Cop-out and the easy way out. if you choose to “Give -up rather than Stand -up”, That’s your choice, And that choice = “Throwing in the Towel”. I admire people like Steve Kelly who keep getting back up no matter how many times they get knocked down. We all know that a “Winner can’t Quit…And a Quitter can’t Win.

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    3. Anything you strongly believe in is never “delusional and foolish”. That’s just a Cop-out and easy way out. if you choose to “Give-up rather than Stand-up”, That’s your choice and that choice = “Throwing in the Towel”. I admire people like Steve Kelly who keep getting back up no matter how many times they get knocked down. We all know that a “Winner can’t Quit…And a Quitter can’t Win.

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      1. Back when fake covid started I lived in small town in NJ called New egypt. I went to the local grocery store with flyers to get locals to band together because local govt were mandating a curfew for businesses forcing them to close early. I handed out a couple hundred flyers max, with quite a few people saying they would be there, the local mayor ended up calling me which I recorded on my zoomtruth live youtube ch (very depressing conversation), anyway the flyer listed a day for a rally in front of some local shops, I think 4 people showed up. I think I have video of that day on my channel to lol.

        The people of the town did not care enough about the businesses that they actually frequent to help them stand up against the insanity. The police watched us 4 or 5 people do our rally for sometime. In the end I felt like I just wasted not only my time but the people who stood with me. It was part of the reason I moved away.

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          1. Yes Harold, if they could. But first of all, There are no “Victims”. Those who were dying during the “Scam-demic”, They said they died from the coronavirus, But that’s not true, They were going to die anyway; But That severe cold just kicked their ass into an earlier grave…End of Story.

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            1. P.S. Harold, Everyone I ever talked to from the Fire department to the Medical field told me that during the pandemic; Every death ever reported was: … Cause of Death…Coronavirus.

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      2. Most things people strongly believe in are both delusional and foolish. Vaccines, religion, magic viruses, countries, political parties and moon landings and witches just to get started. Strength of belief most certainly does not eradicate foolishness.

        And I’ve believed my share of foolish things.

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        1. We’ve all had our share of being fooled with foolishness Alex, But we all reach a point where you no longer get fooled by the fools with their foolishness..unless your just… “A Fool for Fools”.

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    4. I hate when judges legislate from the bench. it is nothing more than taking the law into their own hands and playing “GOD”, or a sure sign they’ve simply been “bought”. Try to get a temporary injunction against the judges ruling until you can get it back into court on an appeal. if it’s granted at least it will free up that land until a decision is made, And hopefully you’ll be able to get his decision reversed on appeal.

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    5. Zoom Truth,
      Everyone has these thoughts, I think. I do this because I love what I do — or I don’t do it very long. A couple of new readers come here every day, some old ones leave, which is how it should be.

      I do not worry about “convincing” anyone, but do argue “my case” to save Nature because I am part of it, and was created by it, and will die (physically at least) and remain part of it for eternity. As I see it, we dream/create our future, and I want all of it to be around for as long as possible. If fish and wildlife could speak our language and be understood, and if trees and water could explain how foolish we are acting, I would not feel such a need to write words like these, and would be happy painting in oils, gardening, walking and other pursuits I love. Can’t stop now, I am just getting good at this stuff. In the end, I just am, or as Popeye used to say, “I yam what I yam.”

      Try to remain calm, only you can change you. Others will follow, or not.

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      1. I kinda don’t understand your point. If you want to protect the wild life or nature or whatever, than action is needed, and I would argue the more people involved the better.

        One part if the problem in my opinion is that the powers that be have brainwashed us into using their court and govt system as a means for the people to get what is just. But the courts are owned and a joke.

        As far as staying calm I find it extremely difficult to do when the apathy of people affects my life directly. I always think of the movie antz the movie about the many ants finally figuring out that they outnumber the crickets who rule over them and chase them away. People are sheep, and as this covid thing has shown totally ok with being led to slaughter. The worst part to me is knowing/thinking I and a minority of others who would like to stand up to tyranny can do nothing alone without just becoming foolish martyrs, the system is to strong.

        It is insanity to accept the lies spewed by government but that is what we do. It makes me sick to my stomach/hopeless knowing that I do not stand up for my principles.

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      2. Steve,

        Incredibly profound. This brings tears to my eyes. You are a wonderful and honorable man, my friend. The world (and the universe) is more blessed because you are in it. You are creating ripples in the waves that travel across time and space – beyond what any of us humans can understand. Your impact may not be visibly apparent (in the form of legal “wins” or blog post “likes”), but it reverberates nonetheless.

        Good always wins – even if we do not witness the visible and tangible evidence. There are forces unknown to us, holding up what is true and beneficent – that cannot be detected, nor measured, with our human cognizance.

        I am truly grateful for your friendship, and stalwart and passionate support for Nature and Life. Maintain your morals and never stand down.

        Popeye:
        Bluto. Even though you’re bigger than me, you can’t win, ’cause you’re bad, and the good always wins over the bad.

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        1. Thank you, Stephers, for your kindness and support. I like the way “ripples” can move freely to unknown destinations, beyond our limited cognitive abilities. This is where creativity and imagination leave technology and science (“STEM”) in the dust. Oh, the cost of conformity. I am so glad you’re here doing your thing. We POMers are all so fortunate to have this one-in-seven-billion chance to share your energy and unique perspective. Love it every day.

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    6. I could pretend not to care about that, but I do care. But I think the topic a little esoteric. I used to be heavily involved in public land issues, but In Colorado there isn’t much to do. I could dive in, as by election results it was decided in 2020 to bring wolves back. They are badly needed – in Rocky Mountain National Park elk overcrowding is a serious problem, so much so that they have put up chain link fences along some streams to preserve them. But I just don’t have the mojo. We do need activists like Steve and Brad Wilson. All I do is throw some money at them now and then, In Montana it was half my life, and how I met my wife and partner of 27 years. Steve’s group just won a lawsuit to stop a fast-tracked timber sale in the Castle Mountains, just north of the Crazies. That is where my wife and I met in 1995.

      Anyway, I realized last night that my thinking on the matter of the Crazies was premature. The landowners deliberately harassed hikers and hunters, and the Forest Service deliberately caved in to landowners in 2017 because they wanted activists to bring a lawsuit. It was rigged from the beginning, a trap, as they knew Cavan would do what he did, and that they would lose on appeal. Cavan in some manner was bought off, as was the appellate judge who put out a 20 page opinion in two weeks, unheard of. They are bought, corrupt. Behind it all is probably Leuschen, a psychopath who loves to set traps. What he wants is another resort, like Moonlight Basin, in the Crazies, but he needed to take control of public lands to get it done.

      Another lawsuit? Rinse and repeat? The players so far have been corrupt and bought. Are there any honest brokers around? I do not know. Will people get up off their couches and protest? It would have to be done at the doors of the courthouse in Billings. That is where the corrupt judge magistrate resides. He’s a player.

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      1. You need to beat “em at their own game and bring them into the light, And that takes more than just lawyers not only smart enough to imply the law, But to beat “em down with the will of the people “And the Law of the Books”…And expose them for who they are as liars and crooks

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        1. We do put up billboards, and even aired our first 30-second spot on tv in Kalispell and Missoula. I do it knowing it either pisses off the knuckle-draggers, or amounts to little more than singing to the choir. I like it, do it, expecting nothing I could quantify or totally understand. Ya’ gotta’ love the paradox, right?

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          1. Sorry Mark, I have to make one more final comment. Seeing how Steve Kelly is the “Outlaw of the Courts” championing this cause…The wavering “Paradox”is a pillar of the outlaw stance. A man who has blown all his options can’t afford the luxury of changing his ways. He has to Capitalize on whatever he has left, And he can’t afford to admit- No matter how often he’s reminded of it- That every day of his life takes him farther down a “Blind Alley”….HUNTER S. THOMPSON. Keep your eyes open and don’t turn your back on “em , Steve.

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              1. I was going to wait until tomorrow to answer this,Because, I was one comment over the limit, Now I’m “Two Comments” over the limit for the day, And Mark’s gonna put me in a “time-out” for a cooling off period if I don’t stop here… But I’ll press my luck even though I don’t believe in luck and answer your comment. Steve, I don’t know what you’re going through battling these courts, But I can only imagine. I’m sure it’s not an easy task and I know you know a lot more about these land battles for rights than I do. I do believe those courts will always look at you as an Outlaw renegade; A nonconformist Maverick of some sort. A thorn in their side and a pain in their ass that won’t go away. But I think what you do is admirable and people should be thankful there are still a few die-hard people like you out there willing to stand up and fight for what you believe in…Given a taste of the overheated Rhetoric.

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              2. Steve, Please don’t think the above Quote from “Hunter S. Thompson” was ever meant as an insult against you in any way. I’m very sorry if it was taken wrong. Calling you an Outlaw was not meant in a criminal sense. it was meant in a way that the Courts of in this land would view you; And I placed you in those Boots of a Man making a stance against the system, watching for their Blind Alleys in the utmost commendable way.

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        2. Steve is the legal guy here, TM, who has been in more courtrooms than I have by the score. The only things that go through my mind are theft of public resources, unjust enrichment, violation of common law easements, and economic enclosure. The only remedy that I can think of is injunction.

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          1. I have faith that if you stay in a fight long enough you eventually make some “Noise”, and it “Sounds like” Steve is that guy whose “voice will be heard”whether they like it or not. You may live in Colorado but if part of your heart is still in Montana, That doesn’t mean your voice can’t be heard from a distance. Keep up the good fight Boys, And Keep on Keeping on. I’ll stay tuned tomorrow…This is my fourth and final comment.

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          2. Injunction or preliminary injunction, or “temporary restraining order.” These remedies are only ever granted if the principle case/complaint looks like a winner to the judge. A judge can also remand the agency’s decision, rejecting it on legal grounds, but “cannot substitute the court’s judgment for that of the agency.” “Activist” judges could give a crap. The agency, in this case, can walk away, or reengage public public participation, redo the analysis and issue a new decision. By that time, however, everyone in the public knows the agency screwed the pooch, lied, or deceived the public and the court in some egregious way, making it twice as difficult to pull off a new decision while keeping its already pathetic reputation in tact.

            Then it’s on to the next set of assumptions and lies, and it’s a new game on some other piece of land.

            The Crazy Mountains are screwed because in Big Timber and in Billings and in Livingston, only a handful of people care a wit. Then they play the local card — jobs, economy; rural reprobates who like being colonial slaves. Jump? How high? Where there are billionaires there will be “crumbs” for the peasants.

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  2. My wife wants to take up hiking (I am not so sure). We are both in our 40s and I enjoy walking or running but not carrying stuff. I live in Adelaide South Australia. Any advice on the best way to get started?

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    1. Alexrimmer0973,

      Just do it. Take enough water, and some food, and proper clothing in case things don’t go according to plan. Nature heals all.

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    1. Yep it came through. Might be my browser but sometimes comments don’t show up unless I refresh the page or post another comment.

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