We need a VETO!
While
pursuing public access
to our public lands is
a beneficial pursuit,
SB 341 - Establish
Public Access Land
Act, is a Trojan Horse
bill that could use
our public funds to
privatize access in
court.
Since SB
341 has been fast
tracked, passed its 3rd
reading, now on to the
Governor, please join
me in contacting Gov.
Bullock's office,
requesting he veto SB
341 – 406-444-3111 or governor@mt.gov.
I don't
ask this lightly. I
have spent almost a
week on the phone (all
day), between the Public,
Representatives, FWP,
retired attorneys and
Governor Bullock's
office.
In
response to my
inquiry, as to who
in FWP assured a
Representative they
could fix this
public access debacle with the rule-making
process, the Rep.
responded it was not
FWP, but a lobbyist who made that statement.
I have spoken to 4 different people at FWP, over 3 days, including 2 at legal, to find out who advised that this public access debacle could be dealt with by rule-making authority. No one was familiar with any statement or position on SB 341, concerning a legislative discussion on rule-making potentially protecting our public access.
I questioned the FWP attorney who returned my call yesterday, specifically asking, a number of times, if FWP had rule-making authority to require a landowner to first have an independent agent research if there was any pre-existing historical public access, such as historical prescriptive easements, RR grants with easements in the public or RS 2477 roads, before proceeding with a funding agreement? I was not given a direct "yes" answer to my very specific question, rather answers such as,
"I believe we have broad rule-making authority, but whether we would or could or should is the question...The rule-making process is a public process, we can't control all of that."
"I believe we could include in the negotiable terms, language such as, 'Payment is not indicative of access status.' " This one was mentioned 3x. I pointed out, that didn't protect the public, rather sounded like a CMY (Cover My Ass) statement, again asked my specific question.
When I brought up the Montana Administrative Procedure Act (rule-making), MCA 2-4-107 law, which limits the scope of rule-making, he said he was not familiar with it. "Construction and effect. Nothing in this chapter shall be considered to limit or repeal requirements imposed by statute or otherwise recognized law. No subsequent legislation shall be considered to supersede or modify any provision of this chapter, whether by implication or otherwise, except to the extent that such legislation shall do so expressly."
Rules have to apply to the law in existence. This bill would become a law, yet has no language excluding potential public access with which to make a rule. Also, there is already property law on the book, involving reverse adverse use, which landowners could object, would limit their right to pursue privatization.
Governor Bullock has authority to add an amendment, but as his office explained yesterday, an amendment would require it to go back to legislature for approval and there is no time; additionally, as stated by the Representative, the Republicans stated in development they would not be a party to any such language being inserted into the bill portion, so they would not approve a Gov. amendment.
This only leaves VETO.
Here is
how this could be a
Trojan Horse bill.
While paying a landowner for public access to public lands, with public money, SB 341 has NO language to require a landowner to first research if there is any pre-existing historical prescriptive easement access or Railroad Grant Deeds with language, such as, "the land hereby conveyed, being subject, however, to an easement in the public for any public roads heretofore laid out and established, and now existing over and across any part of the premises."
For years, I have investigated documentation necessary towards proving historical public prescriptive easements in court, as well as extensive deed research in County Clerk & Recorder's offices, across Montana - part of which is the foundation for our current Coalition's Notice of Intent to Sue in the Crazy Mountains.
One of the criteria in the Boone & Crockett and Modesty Creek cases, cited by the Montana Supreme Court, for reverse adverse use is, "The landowner 'established reverse adverse possession because the state and local government, as well as the public, cooperated and adhered to the' " policy of the landowner.
By
signing funding
agreements with FWP, a
state agency, making
payments for access,
the public sign ins,
this not only provides
the court with the
documents to prove
their case to
privatize a
road/trail, it also
fulfills the evidence
that "the state and
local government, as
well as the public,
cooperated and adhered
to..." the landowner's
privatization, which
was used in the Boone
and Crockett “reverse
adverse use” case,
cited in Anaconda's
Modesty Creek case,
where the public lost
access permanently.
A
current example of the
public defending a
road or trail that was
a historical public
prescriptive easement
is the Wonder Ranch
Case. "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."
The
fiscal note for SB 341
is approved for 2
biennium, $500,000
each year. Four years
of payments,
especially if a
landowner has already
blocked access for a
year or more, would
fulfill the 5 year
statutory time for
filing in court to
privatize it
permanently.
Trying
to address this
concern of historical
access research in the
rule-making process,
is no safety net for
the public, as there
is no guarantee the
authority is there to
insert language that
could "limit" a
current law, or that
privatizing
stakeholder interests
participating in the
public process, such
as landowner groups,
would even agree with
such language; also
those rules can be
changed with little to
no public awareness of
a rule changing
process.
Bullock,
then Attorney General
for Montana, took on a
public access case in
2012, the Tenderfoot
Road case. The
Zehntner's erected a
gate, set up a “Road
Closed” sign and put a
"sign in box" for the
public, all of which
goes towards 5 years
“reverse adverse use”,
to make it private
permanently.
Thankfully, Bullock
intervened and after
he became Governor,
the case was finalized
in the MT Supreme
Court, ensuring public
access.
So
here is a question
concerning why do we
even need SB 341? Why
would these landowners
simply not sell &
record an access
easement, at the Clerk
and Recorders office,
rather than milking
access fees for years?
Could it be to acquire
the evidence they need
for a court to
permanently privatize
any pre-existing
historical public
access?
Without language to protect pre-existing historical public access, this bill needs to be vetoed by the Governor. Please contact Governor Bullock, ask him to intervene and protect our historical public access by vetoing SB 341.
Kathryn
QannaYahu, Founder of Enhancing Montana's Wildlife &
Habitat, EMWH.org
_______________________________
April 12, 2019
SB 341 had it's 2nd reading before
the House where it was voted on 93-7. Thankfully, the 7 no votes were
some of the Reps we could get to on short notice. It is now before the
House Appropriations Committee for the fiscal
portion of it, expected to have it's 3rd House vote possibly tomorrow
(tho it is not on the schedule, but hey, hinkey stuff has been going on
this session),
but more than likely Monday, so we might have a wee bit more time
to reach the Reps. I have been calling legislators all late afternoon
to help explain this issue. Shout out to Bozeman's Rep. Chris Pope who
knows about prescriptive easements and reverse
adverse use, and understood.
So please call your legislators and email your comments.
An example of access being there,
despite a landowner's belief and efforts otherwise, is the Tenderfoot
Road case, which then MT Attorney General Steve Bullock took on to fight
back for the public's access in 2012. The
Zehntner's gated, set up a “Road Closed” sign and put a "sign in box"
for the public, all of which goes towards 5 years reverse adverse use,
to make it private permanently.The case concluded after he became
Governor.
This is why it would be critical to have any roads or
trails researched before any type of funding agreement was begun, but
SB 341 does not have that.
My public comment below. Representative email addresses below comment.
________________________________________
I would like to submit this comment, on the record, in opposition to SB 341 - Establish public access land act.
- Could work towards reverse adverse use, blocking the public from historical prescriptive use permananetly
- No language providing for historical prescriptive use or Railroad grant deeds with "easement in the public" language
- Broad brush, ambiguous contracts that could limit public access
- Why are they simply not purchasing & recording an access easement?
As a member of the public, I have been a landowner,
continue to respect and advocate for private property rights, fight
against trespass. But I also fight for public property and public access
rights.
One of the components for historical prescriptive easements
in Montana, when you go to court to perfect that easement, is that the
public use was "open", meaning a person did NOT pay a fee to use it or
have to sign in, or get landowners
permission first.
"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."
This bill does not state that there will be ANY PROCESS TO
FIRST DETERMINE IF THERE IS ALREADY HISTORICAL PUBLIC ACCESS: by
Railroad Grant deeds with "easement in the public", other public
easements or unperfected historical prescriptive easements.
If no process makes that determination first, then
any payments/funding agreements made to a landowner, especially by a
governmental agency (MT Fish, Wildlife & Parks) with public monies,
could be working towards the "REVERSE
ADVERSE USE" process, whereby a landowner can show "funding
agreements" & payment records to a court to get a ruling to
privatize that access.
Most of the public is unaware of these 2 processes,
but certain privatizing stakeholders generally are not, with certain
landowners setting up sign ins and access fees, to work towards "reverse
adverse use".
2 Recent Montana court cases as examples:
The Wonder Ranch Supreme Court case was ruled a
Historical Prescriptive Easement - that previously unperfected
historical prescriptive easement (use that was there before the
landowners purchased it) is now court perfected, guaranteeing public
access to our public FS lands.
The Modesty Creek case was court ruled as a Reverse
Adverse Use. While the access had been unperfected historical
prescriptive easement, one of the landowners had put a gate with a lock
on it, cutting off access. There was no open, continuous
use, no record of the public complaining with the county, etc., within
the 5 year adverse time period. That was historical public access that
was permanently lost.
Without an amendment to this bill, requiring research
on the access to determine if there is any public stake, the public,
our state FWP and public monies could actually be thwarting public
access that may already exist, aiding privatization
of access. Since I highly doubt that we can be guaranteed impartial,
thorough research ( I conduct title/deed/access research, so I know how
many, many hours it takes on one section of land), I would not support
this bill.
My other concern is that these agreements are not regular easements being purchased (why aren't they just selling a recorded easement???), providing general public access to our public lands, they are unspecific conditional contracts, which means they could curtail the hours of the day (possibly limiting if you are setting up for hunting), or days of the year, etc.
This is so broadbrush, ambiguous, neither the legislators voting on this, nor the public that will be paying for it, has any idea what they are "leasing".
Again, why doesn't the landowner just sell, and record at the County Clerk's office, an easement, rather than this yearly milking of public funds with conditional contracts? Unless the milking and the 5 year reverse adverse use is the goal?
Please oppose Sb 341.
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Enhancing Montana's Wildlife & Habitat
Thank you,
Kathryn QannaYahu
406-579-7748
www.EMWH.org
Helena, MT
