This Land Is No Longer Your Land

Pocket – by Monte Reel

Brad Wilson is following a forest trail and scanning the dusky spaces between the fir trees for signs of movement. The black handle of a .44 Magnum juts prominently from his pack. If he stumbles on a startled bear at close range, the retired sheriff’s deputy wants to know the gun is within quick reach, in case something stronger than pepper spray is needed. Wilson isn’t the type who likes to take chances; he’s the type who plans ahead. 

Before setting foot on this path, he unfolded a huge U.S. Forest Service map and reviewed the route, Trail 267. He put a finger at the trailhead, which was next to a ranger’s station, then traced its meandering path into the Crazy Mountains, a chain in south-central Montana that’s part of the northern Rockies. Like many of the trails and roads that lead into U.S. Forest Service land, Trail 267 twists in and out of private properties. These sorts of paths have been used as access points for decades, but “No Trespassing” signs are popping up on them with increasing frequency, along with visitors’ logs in which hikers, hunters, and Forest Service workers are instructed to sign their names, tacitly acknowledging that the trail is private and that permission for its use was granted at the private landowners’ discretion.

Wilson hates the signs and the logbooks, interpreting them as underhanded attempts by a handful of ranchers to dictate who gets to enter federal property adjacent to their own. Several of the owners operate commercial hunting businesses or rental cabins; by controlling the points of ingress to public wilderness, Wilson says, they could effectively turn tens of thousands of acres of federal land into extensions of their own ranches. That would allow them to charge thousands of dollars per day for exclusive access, while turning away anyone—hikers, anglers, bikers, hunters, locals like Wilson, or even forest rangers—who didn’t strike a deal.

Wilson, 63, is out on the trail to show me how the paths weave through private plots before reaching a destination he loves, and to show me why he loves it: The pebbled trout streams are crystalline, the elk run rampant, and painterly snowcaps break the big sky. The ranches along the way are pretty great, too, the kind of real estate that inspires—and, if acquired, perhaps even satisfies—the hunger a lot of people feel for scenic refuge. Many of the landholders are newcomers from out of state, though some old-timers remain—families that earned their deeds generations ago, the principal paid by ancestors who shivered through pitiless winters in tar-paper shacks. Wilson has been hiking and hunting the Crazies since he was a little kid, but only in the past year or so, he says, have the private ranchers seemed more like obstacles than neighbors. “They could shut down pretty much the whole interior of the Crazy Mountains, as far as I can see,” he says.

He trudges up a rooty slope and, after a blind bend, sees something straddling the trail that stops him cold. It’s a padlocked metal gate. He hiked this trail a couple of weeks before, and the fence wasn’t there. A sign on it reads, “Private Property: No Forest Service Access, No Trespassing.” It’s exactly the kind of sign he’d been bad-mouthing a few minutes earlier, but he wasn’t expecting to see one here. The locked gate feels like an escalation, a new weapon in an improvised war.

The change in Wilson’s hiking plan is frustrating, but he’s getting used to the feeling. A year ago he was just a retired county lawman working as a trustee for the Montana Cowboy Hall of Fame, and he never would have guessed that, in a battle involving ranchers, he’d find himself on the side of dirt bikers and trail rats.

A debate is taking place across the country over preserving land for recreational public use, but most of the attention is focused on vast swaths of historically or scientifically significant terrain that Presidents Barack Obama, Bill Clinton, and to a lesser extent George W. Bush protected under the national monument designation—for example, Bears Ears in Utah and Katahdin Woods and Waters in Maine. These disputed trails leading into the Crazy Mountains represent another front in the escalating battle over control of federal territory, and the fighting here is just as contentious as over the monuments. Historic settlement patterns in the American West created a checkerboard pattern of landownership: Public properties are often broken-up plots, resulting in numerous access disputes. According to a 2013 study by the Center for Western Priorities, that dynamic has effectively locked the public out of about 4 million acres of land in Western states; almost half of that blocked public land, or about 2 million acres, is in Montana, according to the study. The push to end public thoroughfare is either an overdue reassertion of private property rights or an openly cynical land snatch, depending which side of the gate you’re standing on.

Before Wilson turns around and walks back to the trailhead, he vows that he’ll be better prepared next time. Alongside the .44 he’ll pack a pair of super-heavy-duty bolt cutters, and he swears he’ll tear that gate down.

In late October 2-16, in the dying days of the Obama era, a U.S. district judge issued a verdict that seemed to set a precedent for paths like this one. The Texas-based owners of a Montana property called Wonder Ranch, about 100 miles southeast of the Crazy Mountains, had sued the Forest Service after the government filed a statement of interest claiming an easement—a legal agreement to use a portion of someone’s land for a specific purpose—on a trail that ran across the ranch’s property before reaching the Lee Metcalf Wilderness. The Forest Service said the trail had been routinely used as an access route to the forest by the government and the public for decades, and therefore it should be considered public because of historical use. The owners’ suit argued that the government had no right to an easement. The Department of Justice countersued, producing evidence dating back more than a century showing that the public and the government consistently used the trail for packhorses and hike-ins. The Forest Service won the case.

Had the landowners been able to show that the trail had been used for at least five consecutive years only by those who’d received their permission, their claims of private control might have held. That helps explain why Alex Sienkiewicz, the forest ranger overseeing the district that includes the Crazy Mountains, every year sends an email to his staff reminding them never to ask landowners’ permission to use trails that the government already considers public. “By asking permission,” he wrote in 2016’s reminder, “one undermines the public access rights and plays into their lawyers’ trap of establishing a history of permissive access.” That didn’t mean anyone could veer off the trail and slip onto the private property—that’s trespassing, no question about it—it just meant the trail itself should be considered a public throughway.

Every trail leading to public land is different, and not all necessarily have a history of public use, but Sienkiewicz was echoing the government’s generally established position regarding such access points, the one argued by Justice Department attorneys in the Wonder Ranch LLC case. Obama himself outlined his administration’s overarching philosophy when he visited southern Montana during his first term to try his hand at fly-fishing. “He said he felt really strongly that a key to getting kids to become adults that care about their natural surroundings is making sure they can get out to them in the first place,” says Dan Vermillion, a local fly-fishing outfitter and the chair of Montana’s Fish and Wildlife Commission, who waded into the Gallatin River with Obama. “Public access is one of those great equalizers that says whether you’re rich, poor, or otherwise, you still have access to public lands, and you can go out and enjoy them.”

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