A Big Timber-area landowner and the Forest Service have locked horns over an old trail that crosses private land on the eastern face of the Crazy Mountains to access hard-to-reach federal lands.
Hailstone Ranch owners Lee and Barbara Langhus have hired Livingston attorney Joseph Swindlehurst to counter the Forest Service’s contention that Trail 115, also shown as Trail 136 on some maps, is a public prescriptive easement across their property.
“My clients are not aware of any easement that the public or the Forest Service has to cross their property,” Swindlehurst wrote in a March 25 letter to Alex Sienkiewicz, the Yellowstone District ranger based in Livingston.
The Forest Service sees things differently.
“As far as the trail at issue, it is a century-old trail, part of a century-old trail system that circumnavigates the Crazy Mountains and connected historic U.S. Forest Service guard stations,” Sienkiewicz wrote in an April 19 response to Swindlehurst’s letter.
The Billings Gazette received a copy of the correspondence between Swindlehurst and Sienkiewicz — three letters — through a Freedom of Information Act request. A message left for the Langhuses was not returned; instead Swindlehurst returned the call.
Unlike many other mountainous areas in Montana, the Crazy Mountains are unique in that they contain a patchwork of private and Custer Gallatin National Forest lands. More than 8,000 acres of forest land in the Crazy Mountains is not accessible because the sections are surrounded by private land and because crossing from public land to public land at property corners is illegal in Montana.
The private holdings are remnants of the 50,000 acres in the Crazies given to the Northern Pacific Railroad by the U.S. government in the 1860s as payment for building the transcontinental rail line. In the 1890s the railroad began selling the lands to individuals.
The land that Trail 115/136 crosses has been owned by Lee Langhus for about 45 years, according to Swindlehurst’s letter. In that time the family has not been aware of any public use of the route, he added. The Langhuses now operate Crazy Mountain Ranch Hideaway Cabin rental on the property, touting the beauty, quiet and exclusive access to streams and wildlife on the ranch on their website.
Sienkiewicz has countered that the route “has always been on official forest maps and was vetted in such legally mandated public processes as the 2006 Gallatin Forest Travel Plan.”
The reason the trail has only recently become a bone of contention is that Sienkiewicz said he has been contacted by several sportsmen over the past year who complained of a locked gate across the trail and a remote camera monitoring who enters. When those people contacted Sienkiewicz, he told them that the Forest Service’s position is that the “agency and the public hold legal rights” to use the route.
Billings hunter Joe Rookhuizen said he saw the route on a forest map last year and decided it would be a good way to access federal lands in the Crazy Mountains that are otherwise difficult to reach. Public access to the Crazies along the entire 35 miles of their eastern flank is limited solely to Big Timber Creek.
Rookhuizen contacted Sienkiewicz and then called the Langhus family, leaving a message to let them know he planned to use the route. Langhus didn’t return Rookhuizen’s call until after he had already left for the hunt, but Langhus warned in a message left on Rookhuizen’s phone that he would be trespassing if he used the trail.
Swindlehurst countered Sienkiewicz’s claim that a prescriptive easement exists saying it “must be proved by clear and convincing evidence. It is not up to my clients to prove that no prescriptive easement exists across their land. If the Forest Service or the public thinks there is a prescriptive easement across the land, then it is up to them to prove it.”
Burden of proof
It’s that stance that has prompted the Public Land/Water Access Association to attempt in the last two legislative sessions to pass a bill that would alter the dynamic. Instead of a landowner being able to gate and lock a road or route and force the public to sue to prove it should be open, the onus would be put on the landowner to prove the route isn’t public. Both bills have died in committee.
“The burden is on the public to prove an access is public,” Sienkiewicz said.
Largely for that reason, access to public lands has become a hot button issue across Montana, often pitting landowners — and sometimes their agreements with outfitters for exclusive hunting rights — against public hunters and anglers. The disputes have become more common in the past two decades as many older ranches are sold to new owners who possess different values and desires. One of the big selling points for many large parcels is exclusive access to federal land as well as healthy big game populations for hunting.
“I’ve been hiking in the Crazies since I was a youngster,” Rookhuizen, now 36, said. “I continue to see more and more access shut down.”
It’s also something Sienkiewicz has encountered elsewhere in the Crazy Mountains — the Porcupine Trail, No. 237, on the western side of the range similarly weaves through private land where it has been blocked off.
An offshoot to the access issue is that the lack of public hunting access to some private ranches has led to the growth of large elk herds. The state’s main means of managing those elk numbers is through public hunting, so without access many herds have grown beyond some ranchers' tolerance levels since the elk can compete with cattle and sheep for feed. The state’s game managers have been frustrated in attempts to try and reduce elk numbers without having public hunter access to private lands.
Sienkiewicz sees the Langhuses’ attempt to block public access as a way to deny that a prescriptive easement exists by keeping the public off the land for five years.
“The history is that the Forest Service has not filed many lawsuits on these access suits lately,” Sienkiewicz said, although the Yellowstone District did see a recent success when access was restored to the Cherry and Deer creek areas south of Big Timber. Yet that only occurred after the landowner was threatened with the possibility of eminent domain proceedings.
The agency would rather compromise with landowners, and in his letter Sienkiewicz extended an olive branch to the Langhuses. Swindlehurst wrote his clients “probably would consider a further discussion with the Forest Service Supervisors” of a land swap.
For now, the Sweet Grass County Sheriff and Montana Fish, Wildlife and Parks is taking a hands-off approach to the dispute between the Langhuses and the Forest Service.
Sheriff Dan Tronrud said he has not received any trespass complaints so far. If one is made, he said he or one of his officers could cite the individual and leave it up to the county attorney to decide whether to prosecute.
“If it’s a feud between the Forest Service and a landowner, they need to settle that themselves,” he said.
Likewise, Montana Fish, Wildlife and Parks' Bob Gibson said his agency wouldn’t get involved other than to state that FWP supports public access to public lands.
“We haven’t done any research on it, and no one has asked us to,” he said.
Sienkiewicz sees protecting the old trail as a public access point as part of his duty to the public and to his children and grandchildren.
“We represent the general public,” Sienkiewicz said. “These access points are a big part of their lives.”