Wednesday, April 15, 2015

UPOM's Landowner Hypocrisy

Recently, Mark Robbins, president of United Property Owners of Montana (UPOM), attempted to refute sportsmen's letters protesting the Legislature cutting vital Fish, Wildlife & Parks funding. UPOM's article – Legislature gets it right on habitat funding.

Robbins tries to piece together a number of falsehoods, presenting a distorted Picasso-like image of FWP, by trying to force together puzzle pieces of information that don't fit. He attempts to make “habitat” a dirty word,  he confuses sportsmen's license fees with “tax dollars”, then he imagines FWP has been on a “land-buying spree”,  while also accusing FWP of “a slush fund”.

UPOM's president then alleges FWP's mismanagement of wildlife numbers, “FWP's solution was not to reduce the elk herd in order to protect the habitat – it was to try to buy the adjacent land.” This principle is the kicker, having milked cows at a dairy, I know an ornery kicker when I see one.

What business doesn't welcome growth, expanding opportunities? Tourism & Outdoor Recreation is now the largest economical driver in Montana, with over $5 Billion dollars contributed to Montana's economy from non residents alone. With 63% of Montanans identifying themselves as sportsmen and 66% Montanans visiting public lands six or more times per year, with 38% visiting more than TWENTY times per year, you start to see the real economic picture that our wildlife and “habitat” present.

FWP is not using Eminent Domain to obtain land. They obtain it through a legal purchase, from a willing seller. UPOM does not object to land purchases by private landowners, such as the Wilks Brothers or the Koch Brothers who are two of the largest landowners in Montana right now, but they clearly have an objection to land purchases by FWP, that will benefit the majority of Montanans - the public.

Abraham Lincoln, who began as an attorney, illustrated a hypocrite as such: a hypocrite is the man who murdered both his parents, then pleaded for mercy on the grounds he was an orphan. While researching public access obstructions, I remembered Robbins from documenting his locked gate on the Mabee Road, cutting off access to our BLM lands.

Robbins is a rancher who runs cattle. But he doesn't have enough “habitat” of his own, so instead of “reducing” his herd, he leases additional public BLM lands for grazing in Fergus County, at a low subsidized rate of $1.69 an AUM.

UPOM's president is not only a rancher, he is also a hunting outfitter, who profits from selling hunts of our public wildlife. From his business perspective, he benefits if there is less public “habitat” hunting for DIY hunters and less wildlife available – supply and demand – the less public competition there is, the more you can charge per unit. Robbins has outfitting leases on 4,463 acres of our State DNRC land in Fergus County.

As a hunter, I encourage FWP's purchasing “habitat” to expand our wildlife hunting opportunities on public lands. Even in years when I was injured and couldn't hunt, I purchased a license so my fees would benefit our wildlife and habitat. As a Montana citizen, I am also a United Property Owner – united with other Montanan's in sharing and contributing to our Montana Public Lands.

Theodore Roosevelt stated that in addition to accomplishing things that are of immediate consequence to the economic well-being of the people, there are other things to be done for which the economic benefit may be more remote, but that bear directly on our welfare, “because they add to the beauty of living and therefore to the joy of life.” Wildlife “habitat” is such for Montana.

You will obviously see, that the FWP funding puzzle pieces, set in their proper place, produce a clear and inspiring picture – that our crucial access and habitat funding, derived from sportsmen's dollars (which cannot be used for anything else), tremendously benefits our wildlife, Montanans and our state's economy. Remember, context is everything.

Kathryn QannaYahu, EMWH founder

Saturday, April 4, 2015

USFWS Sage Grouse - "Best Available Scientific and Commercial Data"

"Best Available Scientific and Commercial Data" ?

Critical Sage Grouse habitat spans 11 states in the western US - CA, OR, WA, ID, UT, NV, CO, WY, MT, ND, SD. The US Fish & Wildlife Services is in charge of the Endangered Species candidate listing process, gathering all the necessary data, which would normally be available to the Public after the finding is released in September 2015. That normal FWS data process has been bypassed, which will deny the Public our rights to that information.

A couple days ago I received a call, relaying part of a conversation with a US Fish & Wildlife Service employee from Colorado, concerning the sage grouse listing process. The caller was concerned that the process mentioned would mean data would not be available to the public and asked me to look into it. 

So I called Region 6 office in Denver, who is spearheading the sage grouse listing research and spoke with Stephen Torbit, explained the wee bit of conversation relayed. He remembered the discussion and explained that some states (there are 11 involved with the sage grouse issue) have state statutes that prohibit the release of information collected from private property. He said that Colorado was one. I asked what other states had this statue, he did not know. I repeated my notes back to make sure that I understood him and had my notes clear. FWS is not housing the state wildlife agency biological data, FWS does not have a copy, any possession of the state data.

Now on the USFWS sage grouse web page they house quite a bit of information and documents on this complex subject. On the Status Review page it states, "The Service must complete a status review for greater sage-grouse by September 30, 2015." I wanted to know about the scientific data requirements so I checked out their Resources > Documents page . If you look under the Endangered Species Act subsection you find a number of documents. The Fact Sheet states, "After thoroughly analyzing the best scientific and commercial information available, the Fish and Wildlife Service has concluded that the greater sage-grouse warrants protection under the Endangered Species Act." The Questions and Answers page states the same, "After evaluating all the available scientific and commercial information regarding greater sage-grouse, including an analysis of the threats to the species and sagebrush habitat, the U.S. Fish and Wildlife Service has determined that protection under the Endangered Species Act (ESA) is warranted." Again, on the Frequently Asked Questions page, concerning the Data Call, we see the same statement, "Over the next several months, the Service will be gathering and analyzing available information on the species as part of its status review. The Service is required to use the best scientific and commercial data available in the development of ESA determinations and any subsequent proposed rules. The listing decision is due in September 2015." - the best scientific and commercial data available!

In my mind, the best scientific and commercial data available includes the population, distribution, geospatial, etc. data from the state wildlife agencies. 

The USFWS in their data call, did not RECEIVE/COLLECT population, distribution,  geospatial data from the state wildlife agencies concerning sage grouse. What they did was create a computer program, with certain criteria, take the program to the states. The states were informed ahead of time to make sure their data was in shape to be processed by the USFWS program, then on the state computers the program was run. The analysis was created and the USFWS took only the analysis produced. Therefore, they do not have any possession of the state data. This is a bypass of their regulations concerning "the best scientific and commercial data available.

I was told by a retired USFWS biologist that when FWS makes a biological determination they have to make the data upon which the finding is based available to the Public upon request, either through an informal request or through a FOIA. But if FWS is not in possession of that data, they have nothing to give up. So anyone wanting to conduct an independent or peer review of the analysis after the Sept. finding is made public, would not be able to do so. They would have to go through the states with a public information request and I can personally tell you from previous MT FWP requests, what a crap shoot that is. Additionally, at least CO has a state statute to not release some of that data. With everyone that I called in the last 2 days, I kept asking what the Endangered Species formal status review process requirements were for data collection. No one could or would tell me.

Friday, Mar. 3rd I called Regions 6's Theo Stein, he was listed on the USFWS's Greater Sage Grouse page as the Region 6's Public Affairs Office. He confirmed the information I found out the day before, repeating that CO has the state statute. I asked if any of the other states had the same statute. He did not know but would look into it for me and asked me to send him a contact email to reply to, but that he would be out of the office for about 8 days.

Theo also stated that the same situation as the state data was involved with the NRCS data (Natural Resources Conservation Service - USDA), that they were also reluctant to provide data so it was analyzed and again, only the analysis taken. I asked if there were any other organizations or agencies where this was also done? He replied "yes". So I asked who were the other groups, He said he did not know but could also get that information for me. I asked him about the criteria for the modeling, if that was going to be made available to the public, he said he would check, but thought so.

I began calling FWS FOIA offices to see if the Federal exemptions that apply to their FOIA's superceded, or trumped any of the state statutes exempting information. That was not clear. But it made me think about the Supremacy Clause of the US Constitution, that Federal law trumps state law, started pursuing that line of inquiry, as well as looking through the Code of Federal Regulations for FWS and Endangered Species, trying to find the requirements for the scientific data gathering process.

US Fish & Wildlife Services is a Department of Interior Federal agency, run by our Federal Taxpayer dollars for the benefit of the Public of our Public Trust resources - our sage grouse and its habitat, in this particular case. And on a state level, it is our sportsmens dollars that pay for our state wildlife agency conservation efforts, again, in this case, our sage grouse and its habitat, producing the data that our state wildlife agencies are using. 

So why would the Public be excluded from this data?
Why would the FWS deviate from the process they used in collecting data from the states in their 2010 finding?
Why is having the FWS population, distribution, geospatial  and other data important?

What this means: Lets say that when Sept. rolls around and the sage grouse finding is produced on whether or not sage grouse will be listed, because this is a highly contentious issue with a diversity of stakeholders, someone is bound to disagree and file a Freedom of Information Act request. When you do, it will take awhile for your request to be processed, which could take a couple months, so that might take us up to end of Dec. 2015, beginning of Jan. 2016. Then you receive the requested data and start the laborious task of processing it (now I love data mining so this is a fun part for me), which could take some time due to the volume of what would be produced. So maybe you are looking at a month or two to sift through everything (now you are up to about March 2016), only to find there is no population/distribution/geospatial data from the state wildlife agencies! By the time you get back with USFWS to find out where the data is and why they didnt include it in your FOIA, you might be pissed. You cant do an independent analysis, you cant get it to scientists to do a peer reviewed analysis. You might be looking at a year, from now, to get to this point.

This is where someone might be inclined to sue the FWS for not including the data their findings are based on. This will take more time and more money and our USFWS will have to respond, so that is even more time and our taxpayer dollars going right down the toilet. Meanwhile we still have the issue with the declining sage grouse to deal with. This could cause more confusion over the issue, make the situation more volatile, with more accusations flying around. This is not a desired future.

Finally,  I found online what I been asking and looking for and not receiving - the rule book for this bloody game. I like situations like this spelled out in black and white. As a public trust researcher, I especially love agency handbooks. As Lee Gustafson wrote of me today, "She is a master bull dog researcher". I love to hunt data and am nothing if not persistent.

The USFWS Endangered Species Consultation Handbook, Section 7, page 14, of the Glossary and Terms it states under  "Best available scientific and commercial data"
- to assure the quality of the biological, ecological, and other information used in the implementation of the Act, it is the policy of the Services to: (1) evaluate all scientific and other information used to ensure that it is reliable, credible, and represents the best scientific and commercial data available; (2) gather and impartially evaluate biological, ecological, and other information disputing official positions, decisions, and actions proposed or taken by the Services; (3) document their evaluation of comprehensive, technical information regarding the status and habitat requirements for a species throughout its range, whether it supports or does not support a position being proposed as an official agency position; (4) use primary and original sources of information as the basis for recommendations; (5) retain these sources referenced in the official document as part of the administrative record supporting an action; (6) collect, evaluate, and complete all reviews of biological, ecological, and other relevant information within the schedules established by the Act, appropriate regulations, and applicable policies; and (7) require management-level review of documents developed and drafted by Service biologists to verify and assure the quality of the science used to establish official positions, decisions, and actions taken by the Services during their implementation of the Act. [59 FR 34271 (July 1, 1994)]

The USFWS is required to gather, use primary and original sources of information, and retain these sources in the official document as part of the administrative record supporting the finding they will be producing and making available to the public this Sept. They have not done so. So how can management level reviews of documents developed and drafted be used to verify and assure the quality of the science used to establish the official position that will be taken in Sept.?

I have not found out yet by whose direction FWS has changed this process, nor why, but the Public needs all the data evidence available in accordance with the regulations. FWS needs to be able to back up their findings, according to responsible evidentiary science. Dept. of Interior Secretary, Sally Jewell, needs this retained source data before putting her name to the finding in Sept. 2015. But most of all, the sage grouse and their habitat need it for future generations.


Please email
Noreen Walsh - Region 6 Director - 303-236-7920
Matt Hogan - Deputy Regional Director - 303-236-7920 

And call USFWS Endangered Species Headquarters Chief, Office of Communication and Candidate Conservation: Jim Serfis - 703-358-2171

Thank you,
Kathryn QannaYahu
Bozeman, MT

Monday, March 9, 2015

Wild Bison Want Ad: Montana, is this YOU?

Dear Governor Steve Bullock, as a Montanan, I would like to encourage you to lead the way for wild bison restoration in Montana.

  • Montana has plenty of suitable public lands that do not have grazing leases that could be a conflict, in which to restore wild bison to.
  • Wild bison are a native wildlife species that historically played an important part on this landscape and can be again.
  • Scientific studies show the benefits of native wild bison for our type of ecosystem and climate, especially to our prairie grasses.
  • As a conservation hunter, I would like to see bison on our public lands as a huntable species, utilizing our fair chase hunting ethics.
  • Bison are advantageous to our outstanding and growing ecotourism businesses and our residents outdoor experiences.
  • Montana is certainly up to the challenges of managing such a remarkable wildlife species. Please be the leader we need to usher in this historic event, to restore Montanas native wild bison to public lands.

Thank you,
Kathryn QannaYahu
Bozeman, Montana

Wednesday, December 17, 2014

Bullwhacker Bypass Road BLM Proposal

Attention Public Land Access Advocates

The BLM Missouri Breaks Monument Manager, Mike Kania, has started an Environmental Analysis (EA) process to decide whether BLM should construct a new, by-pass road around the Wilks property to gain public road access into the Bullwhacker watershed.

This preliminary step in the EA process now ongoing is called: ‘scoping.’ In this stage BLM is gathering comments from the public that identify the strength of public support both in favor or opposed to the road construction. Scoping comments also include public proposals for options different from the BLM plan. At this stage any ideas the public puts forward are considered relevant. This is the first of several steps before a final decision is made.

The three preliminary alternatives being offered by BLM are:

  1. West Side Route – Build a new road around the west perimeter of the Wilks property.
  2. East Side Route – Build a new road around the east perimeter of the Wilks property.
  3. NO ACTION – Do not build a new by-pass road.

The scoping comment period is open until March 5, 2015
You may submit scoping comments by email to:

Send written comments by mail to:
Bullwhacker Road Comments
Upper Missouri River Breaks National Monument
920 NE Main
Lewistown MT 59457

The public land access interest at stake

Please submit your comment supporting construction of this new by-pass road either on the east or west side. Take a stand against the ‘NO ACTION’ alternative. Unless this project moves forward no public road access in to more than 50,000 acres of public land in the Bullwhacker area will be forthcoming for the foreseeable future.

Do not be put off by talk of a land exchange between BLM and the Wilks Brothers private landowners. No land exchange proposal is currently under consideration; previous proposals have been evaluated by public hunters and found to be not in the public interest because they do not improve public access relative to the public land values being traded away.
Perhaps a good proposal will be offered and some agreement on an exchange will be reached someday, but such exchanges take many years to complete even when public interests are in agreement. Meanwhile we have no road access into the Bullwhacker.
The public access interest is very simple: build the new bypass road.

Below is a summary of important points to make in your comments


Construction of a new road to provide public motor vehicle access to the Bullwhacker Watershed is in the broad public interest.
I support construction of the new bypass road along the ‘East Side’ route described in the EA. And I urge BLM to proceed with construction as soon as possible.
  1. Historically, the public has had vehicle access to this area since before homestead.
  2. Year round motor access into the Bullwhacker is specified in the Travel Management section of the BLM Resource Management Plan for the Upper Missouri Breaks National Monument. Loss of use of the original right-of-way does not constitute a modification of the BLM Resource Management Plan.
  3. BLM constructively contributed to the loss of this historic and regulatory motor vehicle access by its failure to defend the access when it was challenged in state court.
  4. BLM continues to assert an agency policy of improving public access. BLM also has cited the Bullwhacker as its top priority for achieving public access to BLM administered land in Montana.
  5. Approximately 50,000 acres of BLM land is without motor vehicle access because of the current situation in the Bullwhacker Watershed.
  6. All parties can agree that opening the original Bullwhacker Road to public use would be the best outcome. Unfortunately that option is not achievable given the full set of facts at work now and for the foreseeable future.

  • Other Points

Land Exchanges – The topic of land exchanges between the BLM and Wilks Brothers as an alternative to new road construction is irrelevant at this time.
No exchange proposal currently exists that would not produce strong public protest and/or litigation. If such a proposal ever appears it can be discussed on its merits at that time. In the meantime, BLM should proceed with the business at hand, which is construction of the new by-pass road, they can stop the road project at any point prior to construction should an alternative appear.

Feasibility of Road Construction – Construction of a new bypass road around the Wilks property is quite feasible. BLM can obtain a public-private partnership to mitigate costs and the east side route offered in the EA document is a physically adaptable route. According to BLM cost of construction on the east side route is about half the cost of the west side route.

The Bullwhacker Watershed is not an area that qualifies as being of wilderness characteristics. This is certainly a ‘backcountry’ area but it is a working landscape with human infrastructure in place – including roads, trails, fences, livestock tanks, permanent corral structures and energy extraction infrastructure. The natural features of the Bullwhacker are valuable and worth preserving. But these characteristics realistically are not diminished by a new road running parallel with an existing road for five miles along the top of the area’s main ridgeline. The Montana public always has accessed this area by motor vehicle.

Bullwhacker Bypass Road BLM Proposal alert created by Ron Moody

Wednesday, October 8, 2014

Public Comment Sought On Illegal Wilks Wildlife Obstructing Fence

This post presents a Public Trust issue, that being the wildlife obstructing illegal fence the Wilks have erected around our BLM public lands known as the Durfee Hills, in Fergus County, needing your Public emails to correct this situation.

The BLM Durfee Hills sits in the middle of a ring of parcels owned by the Wilks.

Here is the Timeline of the events involving the Wilks Ranch fencing issue.

  • The Wilks sought a land trade with the Bureau of Land Management, exchanging ranch land near Bullwhacker road in Blaine County for the Durfee Hills, which is situated right in the middle of their property with no public access, except by plane or helicopter. However, even though it is a wee bit more difficult to access, it is prime elk habitat.
  • Through efforts spearheaded by the Central Montana Hunters, the Public signed an online petition  as well as hand signed petitions totaling over 1600 signatures and public comments which were then submitted to the BLM State Director Jamie Connell in April. As a result, the BLM rejected the Wilks land exchange proposal.
  • The Wilks then began tearing up a swath of land to erect a fence "on their property", encircling the BLM Durfee Hills.
  • This fence was first photo documented by a bowhunter (wingman) that flew into the Durfee Hills on Sept. 5th on the Hunt Talk Forum.
  • After seeing the first photo of a 5 wire fence, I began posting documents citing legal fencing laws and regulations, even if it was erected on private property.
  • On Oct. 1st, as a result of a number of the public raising questions, the Billings Gazette ran an article that the Durfee Hills fence built by the Wilks was okay - it was not.
  • Oct. 7th, I contacted the Fergus County Clerk & Recorder, followed by the Assessors office detailed below - there is no professional survey on record!
Here are the various aspects of those laws and regulations, which I have stored full documents on a Fencing Page of the EMWH website.

Montana Code Annotated - minimum 3 wire fence, maximum 48" in height, bottom wire not less than 15-18".
Unlawful Inclosures of Public Lands Act - The Unlawful Inclosures Act of 1885 (UIA), as amended, is applicable to fencing constructed along or adjacent to public lands. This law states, in part, that "No person, by force, threats, intimidation, or by any fencing or enclosing, or other unlawful means...shall prevent or obstruct free passage or transit over or through the public lands..." The courts have ruled that the UIA guarantees access to public lands for all lawful purposes and that wildlife access to and use of Federal lands is a legitimate use
The BLM Fencing Standards Handbook - "The [Taylor] Grazing Act regulates fencing on public land, and unless fences on private land conform to those standards, the UIA prevents fences which wrongfully enclose public lands."...In summary, the "Red Rim" fence decision (United States v. Lawrence) establishes that legal action may be taken against parties who construct fencing on private lands that could enclose or block access by wildlife to public (Federal) lands.

The BLM Handbook states 3-4 wire fence involving deer, elk, moose or antelope with a top height of 38", 40 is acceptable if necessary with cattle. The bottom wire needs to be smooth and 16" from the bottom as shown below. Below is a pic of the Wilks fence which has been reported as higher than 48" and the bottom wire in this one is about 6" off the ground - 5 wire.

Wanting the copies of the surveys, I made a call to the Fergus County Fergus County Clerk & Recorder, to see about electronic copies of the BLM land surveys. They could not locate the parcels in question without a Certificate of Survey (COS) number. I had Geocodes and Legal Descriptions from the Montana Cadastral program, which did not list any Certificate of Survey numbers. The clerk referred me to the Fergus County Assessors office who could take my Geocodes and give me the COS for each parcel. Problem was, there has never been any professional surveys on record for these BLM lands in order to have a Certificate of Survey number, not one. I checked all the surrounding Wilks parcels with the Cadastral and none of those show any COS either. I called the Assessors office back and ran a number of these parcels through, providing the Geocodes and no Certificate of Survey numbers for the Wilks parcels either, not even the smaller one that was part of a large block of BLM land.

One of my questions: How can fences be erected without a survey? Also, "After BLM staff conducted a flyover and ground visits using a survey-grade GPS, no encroachment was found," if there has not been a professional survey? After speaking with professional surveyors, confirming with FWP that they did not give approval to the Wilks for the fencing as rumored (which I have stated they did not have jurisdiction to do), and speaking with BLM who confirmed there is no professional survey, I concluded the necessity of requesting the BLM to conduct a professional survey of our public lands to protect our Public Trust from special interests.

At issue here is a wildlife obstructing non-compliant fence, which may be partly on private land and partly erected on public (due to WAAS enabled GPS readings), ground disruption and damage to Public Lands, unlawfully enclosing our Public Lands (UIA), possible posting of no trespass signs on Public Lands (should the professional survey corroborate the GPS readings) and the possible intent to privatize our Public Wildlife. The reason I bring this last subject up, is if the Wilks were simply erecting a fence to mark their boundaries for any of the Public that flew into the Durfee Hills, why go to the labor and cost to erect a 5 wire wildlife obstructing fence? A 3 or 4 wire would have sufficed for marking boundaries.

Below is part of a letter which I sent to the Bureau of Land Management State Director Jamie Connell requesting the BLM conduct a professional survey and investigate the Wilks fence around the Durfee Hills. Please use any of this information and the email link below to send a letter, standing up for our Public Lands.

Bureau of Land Management State Director Jamie Connell,

I am writing to request the Bureau of Land Management, a trustee/trust manager of our public lands, to conduct a professional survey of the Durfee Hills in Fergus County, Montana, which does not have a current professional survey, per the Fergus County Assessors office – to define the legal boundary, to check for ground disruption and that private fencing does not encroach on our public lands.

I would also like to request that you investigate the Wilks 5 wire fencing being erected to determine it's compliance with the Unlawful Inclosures of Public Lands Act, which is cited in your BLM Fencing Standards Manual H-1741-1, “Fences Along Public-Private and Public-State Land Boundaries, The responsibility to install fencing along the boundary between Federal public lands and lands owned by non-Federal entities (i.e., State, local, private) generally rests with the non-Federal landowners...The Unlawful Inclosures Act of 1885 (UIA), as amended, is applicable to fencing constructed along or adjacent to public lands. This law states, in part, that 'No person, by force, threats, intimidation, or by any fencing or enclosing, or other unlawful means...shall prevent or obstruct free passage or transit over or through the public lands...' The courts have ruled that the UIA guarantees access to public lands for all lawful purposes and that wildlife access to and use of Federal lands is a legitimate use. ”

The following BLM properties, known as the Durfee Hills - Geocode, with Legal Descriptions in parentheses.

08-2143-14-1-03-01-0000 (S14, T12 N, R22 E, S2NE4, SE4NW4, E2SE4)

08-2143-13-1-03-01-0000 (S13, T12 N, R22 E, SW4NE4, S2NW4, S2S2, NW4SW4, NW4SE4)

08-2143-23-1-01-01-0000 (S23, T12 N, R22 E, NE4, N2SE4, NE4SW4)

08-2143-24-1-02-01-0000 (S24, T12 N, R22 E, G LTS 2,3,4, W2E2, NW4, SE4SW4)

08-2144-19-3-01-01-0000 (S19, T12 N, R23 E, G LTS 3 AND 4, E2SW4, W2SE4)

08-2143-25-1-01-01-0000 (S25, T12 N, R22 E, G LTS 1,2,3, W2NE4, NW4SE4, NE4NW4)

08-2144-30-1-02-01-0000 (S30, T12 N, R23 E, G LTS 1,2,3,4, E2NW4, NE4SW4, N2SE4, S2NE4, NW4NE4)

08-2144-31-2-02-01-0000 (S31, T12 N, R23 E, G LTS 1,2,3, SE4NW4, E2SW4, SE4)

23-2034-06-1-01-02-0000 (
S06, T11 N, R23 E, GOVT LT 2)


Thank you,
Kathryn QannaYahu

Monday, September 29, 2014

Divide Travel Plan and Programmatic Amendment for Big Game Security Public Comments Due

Comment Due October 6, 2014 (extended from Sept 29)
Subject line: Divide Travel Plan

Helena Hunters and Anglers Association offers the following points in developing your comment to the Divide Travel Plan.

Alternative 5 is unquestionably the best alternative for natural resource concerns. Water quality, soil and vegetation health, minimization of noxious weed spread, fish and wildlife habitats, would all be well served by Alternative 5, over and above the other Alternatives. The highlights include:
- The 300' rule that allows driving off of roads for camping only, would be reduced to 30' for vehicle parking, and if a camping trailer is involved, the allowance would be 70'.

- Dead-end and duplicative roads will be closed resulting in significant improvement for what has been severely reduced big game security and other wildlife habitats.

- Important wildlife winter range in the Priest Pass-Sweeney Creek area would be managed as such with designated driving routes yearlong - NO off-road use

- Integrity of travel management in adjoining Clancy-Unionville area will be assured through similar management on both sides of the Tenmile Divide. One concern is the proposal to open route 4009-A1 to vehicles 50" or less to motorized use. This route parallels, within 1/4 mile, another open motorized route, and goes through an elk calving/nursery area, so it should not be opened.
- Inventoried Roadless Areas would be properly treated as Roadless Areas through removal of motorized routes, with the exception of MTR-501 between Limburger Springs and the Little Blackfoot. Be aware that the east side of Nevada Mountain Roadless Area (Ogilvie-Deadman) is not included in this decision but it should ultimately receive travel management consideration that would be consistent with the adjoining Blackfoot winter travel plan to the west, and Alternative 5 of the Divide travel plan.
- Winter travel restrictions along the consolidated critically important Continental Divide wildlife movement corridor from Mullan Pass through MacDonald Pass and south to Bullion Park is a substantial improvement. This decision would join Sweeney Creek winter range with the Jericho Mountain and Black Mountain Roadless Areas which are known use areas and movement routes for lynx and wolverine, and provide likely movement for grizzly bears to the north and south and connecting eastward to the Elkhorn Mountains.

Please provide your own site specific examples.


A separate decision is being made regarding change of the existing Forest Plan Big Game Security Standard.

Helena Hunters and Anglers Association has submitted extensive comment regarding big game security. We feel strongly that any big game security standard must involve "cover." Alternative B, which is also out for comment, is a significant improvement over Alternative A that was described in the Divide Travel Plan DEIS. Provisions of Alternative B include:

- Hunting season dates of 9/1 - 12/1

- Vegetative cover is recognized as an important component of big game security - as compared to Alternative A, which does not even acknowledge cover needs.

- Alternative B recognizes that where security is limited, that concealment cover must be recognized and measures to retain or improve cover when possible will be taken.

- Security is defined as an area of at least 1000 acres least 1/2 mile from a motorized route open to the public between 9/1 and 12/1

- Intermittent Refuge Areas are defined as areas at least 250 acres in size but less than 1000 acres, also at least 1/2 mile from a motorized route open to the public between 9/1 and 12/1

While not ideal, Alternative B works with the existing landscape and seeks to improve cover where opportunities arise. The goal is at least 50% security within each Elk Herd Unit (EHU). None of the Elk Herd Units currently meet the 50% security goal, ranging from 0% security for the Quartz EHU to 30% security for the Little Blackfoot-Spotted Dog EHU. Travel plan Alternative 5, working in conjunction with big game security amendment Alternative B would enhance security over and above Alternatives 1, 2, 3, or 4 in four of the six EHUs within the Divide landscape.

Click on the link to the Divide Travel Plan. Scroll to the bottom and click on "Divide Travel Plan Comment page". Then toward the bottom of that page you will have several options including:

- Divide Travel Plan - Draft Updated Programmatic Plan Amendment (which is Alternative B for Big Game Security ---- plain language would be helpful!).

- Divide Travel PlanAlternative 5 Map - Open roads and trails

- Divide Travel PlanAlternative 5 Map - Overview of planning area roads and trails

- Divide Travel Plan - Alternative 5 Continental Divide National Scenic Trail Map

- Divide Travel Plan Alternative 5 Overview

THANKS FOR PARTICIPATING. You can improve the Divide landscape and its natural function.

Helena Hunters & Anglers Association

Marias River WMA Settlement Agreement Between FWP and the Wankens Public Comments Due

Montana Fish, Wildlife & Parks and the FWP COmmissions are seeking public comment on a settlement agreement between FWP and Wankens. Comments due Oct. 3rd, 2014.

A detailed summary of the settlement agreement between the Wankens and FWP can be found here. Please send your comments to Region 4 Supervisor Gary Bertellotti at with the subject of  "FWP-Wanken Agreement". My suggestion is to oppose this agreement, reasons below.

Here are some of my concerns about this agreement:

Back story - Wanken Farms, Troy Wanken own land east of the FWP Marias River Wildlife Management Area. There is a historic prescriptive easement road which ran from Lincoln Road through the Wankens providing access to the property that FWP purchased for the Marias River WMA. After the FWP purchase, the Wankens claimed the road was private and anyone, including FWP crossing that road would be trespassing. 

Now there is no fencing on the eastern portion of the WMA. FWP tried to get surveyors out there to survey for a fence and build a fence between the Wankens property and the FWP Marias River WMA. The Wankens would not allow this, hence the lawsuit. So for years, the Wanken cattle and domestic bison have trespassed, without any grazing lease, on the Marias River WMA. This is a theft to the to the Public taxpayers. The Marias River runs through the entire length of the 14 mile property with an important riparian habitat there. FWP has no current Environmental Assessment on this property, nor have they started one. It would take about 3 years, including the initial EA to come up with a plan that might involve grazing, should they determine that it would enhance the wildlife habitat.

1. So this current settlement agreement (the previous one was rejected due to objecting public comments) increased a FWP land transfer of 483 acres to Wanken Farms. Now, while this agreement includes the public's right to access and recreationally use that 483 ares in perpetuity, this land will privately belong to the Wanken's and they can bloody well do with it as they please. Which means they could do a sort of "scorched earth policy" of turning it into a feedlot if they chose. Now who would want to recreate that? The Wankens did not offer, nor agree with this provision to the 483 acres, so keep that in mind.

2. Next, FWP would grant the Wankens the opportunity to match any higher bid for a grazing lease on the WMA (should the FWP assess one would be beneficial) giving them  an advantage over other nearby residents and bidders and giving the Wankens priority to the land. This jewel of a provision was suggested by our ranching FWP Commissioner, Richard Stuker (per FWP)  - the one that keeps bringing up that if the ranchers dont get what they want they are going to cut off public access, who participated in the alternative settlement negotiations with FWP, FWP Commission Tourtlotte and the Wankens. My thought is, if someone has been stealing from the Public for years, why should he be rewarded?

3. and 4. Access to the Lincoln road will be limited to a reservation only system and for a specified period of time. Yes, this would provide closer access to this portion of the WMA, but at what cost?

This court case involves a historic prescriptive easement. Montana's Legislative Services wrote on this subject - Prescriptive Easements and Ways of Necessity. "In order to create a public right-of-way by prescription, the evidence must establish that the public has pursued a definite fixed course, continuously and uninterruptedly, and coupled it with an assumption of control and right of use adversely under a claim or color of right for the statutory period of time." "As discussed, prescriptive easement actions require proof of open, notorious, exclusive, adverse, and continuous possession or use for the statutory period of 5 years. The burden is on the party seeking to establish the prescriptive easement, and all elements must be proved."

As the Montana Sportsmens Alliance have stated on this subject, "The court case is about a prescriptive easement. We prefer that play out. We either have access coming or we don't. We oppose paying anything for it, we oppose any transfer of fee title lands for this purpose (483 acres is crazy), and we most certainly oppose giving any preference to Wanken's for grazing. We have members who are landowners in the immediate area and potential players in any grazing agreements. This certainly looms as another black eye for FWP in this area...We have access at other points and do not require this for access to our WMA. The public needs to be involved in management plans for this area and that is certainly not the case." 

Some of the MSA members, are also Public Lands/Water Access Association members, as I am, who understand fighting for historic prescriptive easements.

Please take a few moments to participate in the public process to fight for our public lands - send a public comment.

Thank you,
Kathryn QannaYahu