Monday, September 29, 2014

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

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