Sunday, April 15, 2018

Social and Political Mobilization

Public Land Protection Priority
"
The convergence of increasing public awareness and governmental concern spurred a
“social and political mobilization,” according to Graham."

~ Lena Felton on Otis Graham's Presidents and the American Environment


Networking Conservation in Montana


After some intense research, work for some attorneys and the Crazy Mountain public meeting, I needed to take some "me time". Long overdue, I have been needing to make time to create an EMWH Twitter account to better network the Public Trust, best available science, economics, public access, open government, MT law and investigative journalism involved with conservation. I meant to do this before the last legislative session, which would have been a help during the session getting that info to the public as quickly as possible; but one conservation fire and research project after another drove that out of my mind. Elections primaries are close, here we go again...

So here it is, the EMWH Twitter feed @EmwhOrg   Hopefully, this will aid the public trust "social and political mobilization" we find ourselves involved in.

I had recently attended the Skyline Sportsmen Association banquet, in Butte, (outstanding group of conservation hunters & anglers who are very active in Montana - same guys that started the Coalitions for Stream Access and State Lands recreation in Montana). There I met wildlife photographer Ken Herrly who has contributed numerous pieces to the banquet each year, to help raise money for Skyline's activism. Looking at some of his portfolio photos, I fell in love with this 6 inch intense hunter, the Saw-Whet Owl (great inspiration by my desk). I ordered one to match my livingroom colors (which meant I had to finally finish painting my walls since moving in - hence some of the me time). Thank you for the hat!

Ken Herrly can be reached at 406-782-1809 (Butte) for wildlife photography (he does his own matting and framing).

If you would like to contribute to all the awesome work that Skyline does, you can contact Harold Johns (president) 406-565-2064, or send a check to Skyline Sportsmen Association, P.O. Box 173, Butte, Montana 59701


Wonder Ranch Appeal Case - FS Prescriptive Easement Video (36 min.)
The beginning of April I watched the video in the Wonder Ranch, LLC v. USA Ninth Circuit Court case. Unfortunately, it was in Idaho, so I couldn't watch it in person. It is only 36 minutes, but is an important case involving historic prescriptive easements in Montana. The Wonder Ranch attorney argued that the Federal Land Management Policy Act (FLPMA) precludes the Forest Service from acquiring access by prescription. It does not preclude access by prescription. The DOJ pointed out that in California, the court held that where the government holds valuable property rights “in trust for all the people, it is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property.”

Additionally, the USDA USFS Gallatin National Forest, August 2002 Briefing Paper on National Forest System Trails across Private Land, “The growing demand for dispersed recreation on public lands, and the changes and trends in private landownership, have brought considerable attention to the trails issue on this Forest. At an increasing rate, landowners are questioning the status of trails across private land. Private land within and adjacent to this Forest continues to be sold. New owners may or may not recognize the existing public access through their lands. Some trails on private land are being lost through subdivision, closure or obliteration.

As a result, it is critical for the Gallatin NF to continue to have a strong and consistent policy and presence in: (a) signing and maintaining our trail system across private lands; (b) defending historic trail access rights if challenged;
and (c) perfecting trail access rights across private lands whenever that opportunity exists.”

In the Direction and Policy section they wrote, “Under FLPMA and FSM 5460 direction...In situation where an existing NFS trail crosses private lands, and no deeded easement exist, the Forest Service position is as follows: The United States has acquired a right-of-way from the trail through development, maintenance and continuous use of the trail. As a matter of law, the Forest Service believes that there is a public access easement for the trail. The Forest Service is a beneficiary of this public right of access, will continue its efforts to defend the public's right of access.
(1) Protect and maintain historic evidence, including trail blazes, signs, maps, photos and maintenance records.
(2) Maintain and sign the trail on a regular basis, and keep records and photos of this maintenance, and
(3) Take prompt action in the event that landowners threaten or take action to close or obliterate the trail.”

Another point the Wonder Ranch attorney tried to argue lack of "hostile" in the qualifications for prescription in Montana law, MCA 23-2-322, "(1) A prescriptive easement is a right to use the property of another that is acquired by open, exclusive, notorious, hostile, adverse, continuous, and uninterrupted use for a period of 5 years." We are not talking gun shoot outs here.

Yet, in a Montana Legal Services document for the EQC, Prescriptive Easements and Ways of Necessity, which has been on my EMWH website for awhile states, "In Medhus v. Dutter, 184 Mont. 437, 603 P.2d 669 (1979), the Supreme Court determined that the occasional use of a road by hunters, hikers, and neighbors (recreational use) was insufficient to raise a presumption of adverse use and did not represent the distinct and positive assertion of a hostile right notifying the owner of the property, which is necessary to transform the originally permissive use into adverse use. The court stated that in order to find a prescriptive easement, those claiming the easement must make a distinct and positive assertion of a right to use the property that is hostile to the owner's rights. The person claiming the easement  must also show that the right was brought to the attention of the owner and that there was continued use of the easement for the full statutory period." The very fact that the trail is shown on the Gallatin Forest Reserve map published in 1905 and in 1940, the USFS published the Beaverhead National Forest map, designating the Indian Creek Trail as “Trail #328”, publicizing it as part of the National Forest Trail System is a "hostile" act, and that was before the Hudsons bought the land in the 1968. 


This is part of the reason the Crazy Mountain landowners that wrote the letters to Daines, the Forest Service Chief and Ag Sec. Perdue want all unperfected prescriptive easements removed from future publications, which includes maps. That very act works towards historical prescriptive easements.
 
The judges questions and statements in this video are pretty interesting. I am keeping an eye out for the decision.


Dark money group pays $30K fine for breaking Montana campaign finance laws by John Adams
"A dark-money political organization that spent hundreds of thousands of dollars during the 2012 election to support conservative candidates for office has settled a lawsuit  accusing it of violating Montana’s campaign finance laws."

Montana Growth Network funded Laurie McKinnon for the Supreme Court seat. She has voted against public access in a number of cases since her election. I now have documentation from before she was elected to the Supreme Court, at the local level, that I will be putting together. Charles Schwaab and James Cox Kennedy both contributed to Montana Growth Network and had access cases in court ( page 28 - takes a minute to load archive graphics ).

Public doesn’t mean protected by Michael Dax
"The fight for public lands can’t merely be about keeping them public. Public lands need vigilant protection to ensure that they support healthy forests, clean water and robust wildlife populations. With public lands advocates slowly embracing this more complex mission, the real fight can begin."

Ryan Zinke’s Great American Fire Sale
"In addition, the agency most often sells its leases without any stipulation preventing surface occupancy, meaning that some development—clearing brush, building roads, drilling wells—may occur. Once that happens, any possibility of using the land for conservation or recreation, or preserving it because it is sacred to local tribal groups, goes out the window. In other words, Trump and Zinke are using 'energy independence and economic growth' to justify the sale of lands that are unlikely to provide either. 'These are high-risk areas,' Culver said, referring not just to the land that was leased in March but to all of southeastern Utah’s red-rock country. 'To be gambling with this place simply to make a statement of principle is profoundly disturbing.' "

Group hopes advertising campaign will change commission’s stand on WSA letter
by Perry Backus
"A group of Ravalli County citizens hope that an advertising campaign featuring six-angry-looking people on a billboard and yard signs will make the county commission rethink its stance on wilderness study areas."

New fishing access site planned for Dillon
"The Beaverhead River runs along the west side of Dillon, bringing with it some of the best brown trout fishing in the state. And just north of town, there’s a growing network of hiking trails. In town, there’s a burgeoning network of walking and biking routes.

But currently, this mosaic of recreational opportunities is pretty disjointed, says Celine Beaucamp-Stout, Beaverhead Trails Coalition executive director, with few places for locals to access the river and no direct connection between in-town and north-of-town trails.

That is why her local nonprofit has pursued the development of a new fishing access site and trail loop near the Selway Bridge in conjunction with Montana Fish, Wildlife & Parks and the Montana Department of Transportation."

If You're Thinking of Hiring an Outfitter…. by MSA
Buyer Beware notice - BoO change in first aid certification requirements for outfitters and guides
"Many folks, at one time or another, and for various reasons, choose to enlist the services of an outfitter as a means of enjoying Montana’s great outdoors. Outfitters make their living based on the public’s resources and as such, have a responsibility and an obligation to their clients, the resources they use and the public at large to do so upholding the highest standards of professionalism and dedication to sharing those public resources."

Crazy Business by Don Thomas
"Readers and BHA members outside of Montana may have never heard of the Crazy Mountains, although that is likely to change. One of Montana’s dozen isolated “island” ranges, the Crazies lie an hour’s drive northeast of Bozeman. They offer spectacular wilderness terrain and are home to native cutthroat trout, an over-objective elk herd, deer, mountain goats and large predators galore. Their current notoriety derives not from this natural bounty, but from a heated dispute over the public’s ability to enjoy it even though most of the range lies on public land."

Adventures in Greater Yellowstone Presentation by Phil Knight
April 17, 2018, 7-8:30 PM
The Emerson Cultural Center, Weaver Room
Sponsor Montanans For Gallatin Wilderness


I have been remiss of late in publicly thanking those who help make this work possible, I apologize.
Thank you all: James McGehee, John Rich, Skyline Sportsmen Association, Ed Leritz, Eric Hammer, Nancy Ostlie, Montana Sportsmen Alliance, Mike Bunker, Mark Momberg, Tony Schoonen, John Daggett, Hallie Rugheimer, Dwayne Garner, Randy Knowles, Kenter Photography, those that would prefer to remain anonymous and the subscribers. Y'all rock.

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Thank you,
Kathryn QannaYahu
406-579-7748
www.EMWH.org
Helena, MT