While pursuing public access to our public lands is a beneficial pursuit, SB 341 — the Establish Public Access Land Act — could be a Trojan horse bill that would use our public funds to privatize access in court.
Since SB 341 has been fast-tracked and will probably pass the upcoming 3rd reading, please join me in contacting Gov. Bullock's office, 406-444-3111, requesting he veto the bill.
Here is how this could be a Trojan Horse bill.
While paying a landowner for allowing 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 toward 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.
By signing funding agreements with FWP, a state agency, making payments for access, and having the public sign in, this not only provides the court with the documents to prove a 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 and 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 biennia, $500,000 per 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 those rules can be changed with little to no public awareness.
Bullock, then Attorney General for Montana, took on a public access case in 2012, the Tenderfoot Road case. The Zehntners 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 settled in the MT Supreme Court, ensuring public access.
So here is a question: Why do we even need SB 341? Why would these landowners simply not sell and 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.