Sunday, March 18, 2018

On the Record, Visually

"It is horrifying that we have to fight our own government to save the environment. "
~ Ansel Adams

EQC Meeting

A quick note, at the last EQC meeting, former senator John Brenden (and brother-in-law to Crazy Mountain outfitting landowner Chuck Rein), now a general member of the public on the committee, requested that the Committee schedule Terry Anderson, of PERC, to speak before the EQC on public access issues in the Crazy Mountains. 

The EQC agenda is now available and Anderson is scheduled to speak during the Public Access portion of the meeting, Thursday, March 22. 

If you value public access to your public lands, please join us at the EQC meeting, in Helena, State Capitol, Room 172. Schedule times are approximate, I always like to get there at least an hour before, in case they are running quicker. Public Comment will be taken and become part of the public record.

Crazy Mountains March Public Meeting Video, Trail Video Tours and Documentation

On March 13, 2018, Friends of the Crazy Mountains (FOCM) and Enhancing Montana's Wildlife & Habitat (EMWH) hosted a public meeting to share information with the public, which we feel has been missing in this process thus far. There were about 80-90 people in attendance, some seated and some standing in the back (that was where we set all the food up at ;) ).

We video recorded the meeting for the interested public that could not make it, as well as to combat the misinformation campaign being promoted by certain groups and individuals. The meeting was recorded on 3 - 45 minute tapes. As the meeting ran longer, the video did not capture some of the ending public comments or questions, such as Crazy Mountains landowner Shaun Jones, who expressed concern over the Forest Service/Zimmerman trail relocation proposal not including motorized access, while the current Trail #267 includes snowmobile, mountain bike and motorcycle. I only edited to stitch together the 9 video segments (3 per tape), as I received it, except some of the attorney presentation for brevity, retaining the specifics of prescriptive easements.

Since my laptop video memory started degrading the visual at the end of the proposed trail video presentation, from running a number of programs, and the video tours were harder to see on film, I decided to additionally render each flyover trail segment, as their own videos, linked on the documentation page (sorry, my mic broke and the ordered one would not arrive in time to narrate the video segments). On the proposed trail video, I begin the video in a flat view, similar to the FS map of the proposed trail, so that you will see the comparison, before the video expands to become 3D.

Trail #195 is also shown, as it is depicted on the old 1925 and 1937 maps, as one continuous road, part of which is now called the North Fork of Elk Creek Road and involves a half section of State School Trust Land. I have been in discussions with DNRC Access Specialist Ryan Weiss about the easements and deeds we have in the connecting sections. Part of my question about public access through that half section, is because reports of the hunting club using that road, as people have done for decades before. 195 is also shown because of the necessary switchbacks on trails as they ascend/descend steep terrain, because there is a lot of that in the proposed trail and I believe, after talking with civil engineers, that the current lines on the map for the proposed trail, which is listed as approximately 8 miles, will turn out to be longer when switchbacks are factored in.

I explain about my Railroad grant deeds and the right-of-way research I have been mapping, as well as the Fuel Tax, "Roads Open To Public Travel" routes that lead right into the Forest boundary, which I also have Railroad deeds with public access on. 

Before you allow the Forest Service PUBLIC land managers to abandon your rights, historic and deeded, or to proceed without the legally required NEPA, that requires government agencies to consider the environmental impacts of various types of development projects, please check out the videos and documentation. 

If you have any questions, please feel free to call or email.

After reviewing, we hope you will take time to submit a public comment on this historic trail obliteration and relocation proposal, to the Forest Service. We need the legal NEPA process, not this railroaded categorical exclusion the FS has stated they are doing. This non-motorized proposal would give away not only motorized access, our historic prescriptive easement rights, but also ignores our deeded easements and right-of-ways.

Comment deadline is March 31, 2018
Written comments must be submitted via mail, fax, or in person (Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding holidays) to: Mary Erickson Forest Supervisor, ATTN: Chad Benson, PO Box 130, Bozeman, MT 59771. Electronic comments including attachments can be submitted to:
Formats that will be accepted for electronically submitted comments are: Word, PDF, and/or Excel.

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Enhancing Montana's Wildlife & Habitat

Thank you,
Kathryn QannaYahu
Helena, MT

Friday, March 16, 2018

Zinke said he’ll look into the Wilkses’ Durfee Hills proposal

"Zinke said he’ll look into the Wilkses’ proposal..."  
Again, "The class which has the power to rob upon a large scale has also the power
to control the government and legalize their robbery."

~ Eugene Debs

This is what I woke up to this morning, the gift that keeps on giving. Which reminded me, I had received my final BLM FOIA response to the Wilks Brothers damage to our public lands (summer 2014) in December, when I was in Brady for a month. My BLM FOIA request was made well over a year before. With all the Crazy Mountain issues and research, I had not even made time to open the package and view the response. I just now went through the 313 pages of documentation. The above photo collage is a sample of the damage.

Quick note, I saw a BIllings Gazette write up that mentioned my FOIA requests (which are so important for transparency, more of the public needs to be engaged), Gazette opinion: Government needs sunshine

"Kathryn QannaYahu, a public land access advocate based in Helena, filed Freedom of Information Act requests pertaining to the transfer last year of the Livingston district ranger who had defended public access in the Crazy Mountains. Information she obtained through FOIA revealed that a Facebook post falsely attributed to Ranger Alex Sienkiewicz, caused private property owners to complain to Sen. Steve Daines, who complained to Agriculture Secretary Sonny Perdue, who ordered the ranger to be reassigned and investigated. Sienkiewicz has been reinstated."

A wee rabbit trail, our Friends of the Crazy Mountains and EMWH public meeting was held on March 13th. We had about 80-90 people present. We had a videographer record the meeting (receiving the DVD today), so I will get it uploaded, as well as the Trail video tours and pdfs of all the documentation that we supplied at the meeting; so that y'all can see the facts (such as easements and access) presented for yourself. It may take me another day to get all the links completed and uploaded, so keep an eye on the page linked below and please submit a public comment to the Forest Service after you have reviewed the video and materials.

Here is a rundown on the trespass settlement we, the public, took a huge hit on.

In discussions between the BLM and the Wilks Brothers about the trespass settlement, on March 21, 2016, Farris Wilks sends a reply back to the BLM, disagreeing with the $66,613.00 charge. He states, "We propose to pay 50 percent of the cost of the entire survey, which would bring our portion of the Lewistown Field Office Allocation to $32,662.50, plus the fine for the timber, which brings our settlement offer amount to $33,950.00."

By June 3, 2016, BLM Field Manager Peter McFadden, replies, "If agreement to settle based on terms of this letter is not reached, a demand for payment of the full amount of all costs totaling $319,849.63 as described in section 5.3 on page 44 of the Resource Damage Assessment (minus $8,716.00 associated with the Billings Field Office portion of the Cadastral Survey Costs) will be issued. Rehabilitation and stabilization work would be completed by a BLM contractor that would not include your private lands. Finally, a separate proposed grazing decision regarding violations of BLM grazing regulations as described in the September 4, 2015, Notice will be issued... Furthermore, our settlement offer did not account for additional administrative costs beyond the survey costs ($65,325)."

That settlement offer was eventually signed by Farris Wilks on July 14, 2016, 12 days after I filed my BLM FOIA request involving the trespass investigation, charges and Rehabilitation/Stabilization Plan.

Here are some of the key points from the report:
  • Total acres of BLM public land disturbed - 5.27 of total disturbance 29.86 acres.
  • Total linear feet disturbance for BLM was 22,536 feet, 4.27 miles.
  • Total linear fenceline in Trespass 14,880 feet, 2.82 miles.
  •  Wildlife - "The 5-wire barbed wire fence is altering wildlife movement and appears to have caused elk mortality from entanglement on one occasion thus far. Trailing (primarily by elk) parallel to the fence was ubiquitous and exacerbated by the generally high top-wire height (averaged over 44 inches, with a range from 25.5 to 52 inches), generally low bottom wire height (averaged under 11 inches, but with a range  from 0.5 to 19 inches), steep slopes, cut slopes, and debris piles of debris created from clearing trees. The areas where elk use was most concentrated included fence corners and drainage bottoms."
  • "Direct injury to BLM land (our public lands) includes tracked equipment marks, tracked equipment soil berms from turning, clearing of forest and understory vegetation, root wad and stone holes, excavation of up to 2 feet of topsoil, excavation resulting in cut slopes 5 inches to 8 feet in height (greater than 45%), creation of mixed timber & soil debris up to 30 feet wide and 10 feet high, blockage of natural drainages, construction of fence. Three segments are currently experiencing hill slope failures (two on BLM managed land and one on private land). Many of the segments assessed (on both private and BLM) are currently experiencing rill or gully erosion."
  • Weeds, disturbance due to fence construction - "Approximately 72 acres of leafy spurge were inventoried in or immediately adjacent to the fenceline disturbance (both BLM and private lands) during the injury assessment. An increase in abundance and density of leafy spurge is having direct and indirect impacts on BLM administered lands as the spurge is outcompeting native vegetation, reducing native plant diversity, and reducing forage availability for wildlife and livestock."
  • Rangeland Management - "This fence serves no practical purpose for cattle distribution due to the lack of water on BLM administered lands and does not allow for orderly administration of the grazing permits. Construction of the fence has effectively eliminated use of the permitted AUMs associated with both permits unless it is removed to allow cattle to water on private land and forage on BLM administered lands." There is a spring on the BLM lands that is in jeopardy of being ruined by cattle congregation within the fenced area.
  • Forestry/Timber - "Damage to BLM timber resources occurred primarily on the southern half of the Durfee Hills parcel... it was determined that 23 thousand board feet (MBF) or 161 tons of merchantable timber was cut on BLM. A subsequent appraisal was completed and the value of the timber was found to be $4/ton. Under part 9239 of the CFRs, BLM may assess 'twice the fair market value of the resource at the time of the trespass,' which would equate to $8/ton and a total value of $1,288."
  • Direct Impacts, 5-wire barbed wire fence - "Continuous debris piles, some exceeding 10 feet tall and 30 feet wide, created an additional barrier parallel to the fence in several segments."
  • Soil Resources - "Approximately 4.27 miles of corridor clearing are located on BLM managed land. THe total area of bladed disturbance is approximately 29.9 acres: ~5,25 (17.7%) of BLM managed land and ~24.6 acres of private land (~82.3%)."
  • "No Range improvement Project applications were submitted by the Wilks organization. Construction of the fence was not evaluated under NEPA. Additional actions, agreements or settlements that allow for all or portions of the newly constructed fence to remain in place and be authorized by the Lewistown Field Office would be subject to existing laws and regulations including but not limited to NEPA, FLPMA, and 43 CFR 4120 and 4160."
  • Resource Damage Cost Calculation: "Resource Damage Cost $211,378.10; BLM Salary & Expenditures $115, 899.53; Timber Fair Market Value* $1288.00; Total $328,565.63"
And that, ladies and gentlemen, is a crime against the public!

To add insult to injury, the Wilks are now discussing a land exchange with DOI Secretary Ryan Zinke, when the public has repeatedly fought back against losing these public lands and wildlife habitat.

I will be getting this FOIA segment uploaded to the website in about a week.

Truly, the "government needs sunshine".

 Click to be a Contributor or Subscriber to
Enhancing Montana's Wildlife & Habitat

Thank you,
Kathryn QannaYahu
Helena, MT

Friday, March 2, 2018

Invitation to the Crazy Mountain March Public Meeting

"The law helps the vigilant before those who sleep on their rights."
~ Montana Code Annotated 1-3-218 Maxims of Jurisprudence

Crazy Mountains Trail Obliteration

At the bottom is the Crazy Mountain March Public Meeting Invitation. Please join Friends of the Crazy Mountains (FOCM) and Enhancing Montana's Wildlife & Habitat (EMWH) for a factual informational public meeting (just a teasing taste below).

First, the Park County Clerk and Recorder office feels like my second home these days. This is where I have been doing all the Northern Pacific Railroad Grant Deed research, as well as Right-of-way research. Sections with language- "the land hereby conveyed being subject, however, to an easement in the public for any public roads heretofor laid out or established, and now existing over and across any part of the premises.

This is very important. Here is why. I read a District Court case a little over a week ago, then I realized the power of what I had been gathering since this summer. In 1948, after outfitting Crazy Mountain landowner Van Cleve had been cutting off public access, the Forest Service sued. The foundation of the US Attorney's case was the Railroad Grant deed. This was how we have the access on Big Timber Canyon Road on the east side.  

"That the United States has a special right, title and interest in said highway and trail and all parts thereof, including the parts thereof situated upon lands now owned by the defendants, amounting to an easement  and right-of-way for said purposes by reason of the facts that said road and trail were established upon said land when it was in part public land of the United States of America and in part in the ownership of the Northern Pacific Railroad Company, and its successor in interest, the Northern Pacific Railway Company, which said  railroad company and railway company dedicated the same as a public highway, which was appropriated by the United States and the general public prior to the issuance of any patents therefor, thereby reserving unto itself and the general public said public highway, road and trail, and by reason of the fact that the United States and its permittees and the public have for more than 50 years used said road and trail for said purposes..."

Not only was the Railroad grant deed the foundation of the case, but it was also the foundation for the injunction to force the landowner to remove the signs and locks that were obstructing the Forest Service and the public from access. The Judge granted the injunction.

I have railroad grant easements and ROWs all over the Crazy Mountains - including the west side involving the Porcupine Lowline trail area that is currently involved in a portion of the Trail #267 obliteration proposal.

Yesterday, the Forest Service announced that they were initiating a trail relocation proposal on the northern part of #267, moving it mostly from private land to public land. Their public scoping process is 30 days for public comments, which began yesterday. Currently #267 is part of the motorized access by mountain bike, motorcycle and snow mobile, part of a system that begin at the Shields, just north of Porcupine. The relocated trail "will be designed and engineered to non-motorized trail standards." The public will not only lose this use, but the much higher and steep elevations will limit the children, elderly and limited users that are not Mountain Goats. More on this at the very public meeting on March 13th (I have 3D maps).

I spoke with the FS rep involved with this proposal today and amongst other questions, asked if they had filed their Notice of Intent with the Federal Register. I had been watching it for a week. I also asked about the FS Schedule of Proposed Actions (SOPA), that filing also did not show up on the webpage. SOPA contains a list of proposed actions that will soon begin or are currently undergoing environmental analysis and documentation. No information was provided. 

I was told they are not going to do an Environmental Impact Statement (EIS), they believe that they have a Categorical Exclusion (CE). Federal action may be "categorically excluded" from a detailed environmental analysis if the federal action does not, "individually or cumulatively have a significant effect on the human environment". I questioned how they could possibly avoid an EIS when this proposed trail traverses such steep terrain and crosses a number of creeks: Porcupine Creek, North Fork of Elk Creek, Daisy Dean Creek and Horse Creek. The FS engineer I spoke with just prior stated that these are just lines on a map until he gets on the ground and sees the terrain. No engineering report has been done on this proposal prior. When I brought up all the creek crossings, the engineer said they may need bridges and/or stock bridges. 

This made me wonder, did the FS do any other necessary scoping? "Scoping includes refining the proposed action, determining the responsible official and lead and cooperating agencies, identifying preliminary issues, and identifying interested and affected persons." So I called the Region 3 Livingston fisheries biologist to see if the FS ever contacted them about those creeks. They had not. I called the Region 3 Fisheries Manager Travis Horton. He also had not been contacted by the FS about the creeks. I requested the fisheries biologic data on these Creeks.

Here is the thing - this is Yellowstone Cutthroat Trout historical and current habitat. Below are two maps from the MT FWP website section dealing with the Yellowstone Cutthroat Trout Conservation page. There is a Memorandum of Understanding and Conservation Agreement between various federal and state agencies on Yellowstone Cuts. YCT are a Species of Concern by the State of Montana and a Sensitive Species by the USFS. How can the Forest Service not do an EIS? I have contacted Montana Trout Unlimited on this matter.

Just a final note, recent news release articles included a false statement,  "Lighthiser said the new trail is supported by several different groups, including the Backcountry Hunters and Anglers, the Montana Wildlife Federation and the Park County Commission. She said putting egos aside gets everyone to a better outcome." I called BHA and Park County Commissioner Steve Caldwell, not having seen or heard of any statement of support for this trail obliteration proposal thus far. Both stated it was not correct. An online correction was made on the article stating, "Neither group has discussed endorsing the proposal."  Printed copies have already gone out, however.

Will the Historical Crazy Mountain Trail Systems Survive Another Generation?
It has been almost a whole generation of public access obstruction on your 100+ year old historic Crazy Mountain Trail System.
Just as no one expects a private landowner to give up their historic water rights, public landowners should know our deeded and historic prescriptive access rights!
  • Would you like your access restored for your and future generations?
  • Do you want your Federal public land managers responsive to our public, multiple use and public trust resource needs?
  • How can we effectively advocate for our Crazy Mountain public lands & access?
Please join us for a free, open, transparent Public Meeting involving the West Crazy Mountains Porcupine Lowline Trail System, including a general east Crazy Mountain access overview.

March 13, 2018, 6-8 PM
Please come early, meeting will start promptly at 6 PM.
Yellowstone Pioneer Lodge, Yellowstone Conference Room
1515 W. Park Street, Livingston, MT
406-579-7748, Event Contact: Kathryn

If you are coming from out of town, the Yellowstone Pioneer Lodge (406-222-6110) is offering a special location event rate discount of 20%.
  • Guest Speakers, Presentations, Video Tour, recent landowner Trail #267 relocation scoping process and upcoming southern Crazy Mountains land exchange, Prescriptive Easements.
  • Q & A, open mic
  • Informational resources, maps, history, FS NEPA process, Forest Service contacts, Yellowstone Cutthroat Trout info and Crazy Mountains User Survey will freely be available to the public.
  • Media, elected officials and legislators welcome.
  • Coffee, tea & refreshments will be provided.
Event sponsored by Friends of the Crazy Mountains and
Enhancing Montana's Wildlife & Habitat.
For more information contact:
Kathryn QannaYahu, EMWH,
For more information: Click the Crazy Mountain Link


Click to be a Contributor or Subscriber to
Enhancing Montana's Wildlife & Habitat

Thank you,
Kathryn QannaYahu
Helena, MT