A lawsuit in federal court in Montana is challenging an alleged “bait-and-switch” in which the federal government turned an easement on private land into a public road.
The Montana landowners, Larry Wilkins and Jane Stanton, argue the easement granted in 1962 by previous owners was not meant for public use. Yet in recent years the Forest Service “has enabled the road to be utilized for general public access purposes, and encouraged public use with signs such that the use of the road has become excessive and disruptive to the plaintiffs enjoyment of their private property.”
Wilkins and Stanton live next to the Bitterroot National Forest.
McCoy said the Forest Service’s handling of the easement “has led to serious traffic hazards, road damage, fire threats, noise, trespassing, illegal hunting, speeding, and other dangerous activities.”
The original agreement for the easement was supposed to allow use by the Forest Service, its employees and those with permits such as ranchers and loggers, the complaint states.
McCoy explained that the terms of the easement “were clear, and a letter from the Forest Service confirmed the purpose.”
He contended the government is trying to convert a limited easement into one that is “better than it paid for.”
“In Montana and the west, federal agencies have tried to increase access to public lands to meet growing recreational demand. But instead of negotiating with property owners to come up with a mutually beneficial solution, the government engages in litigation to grab land it never owned,” he wrote.
“Not only does this approach violate private property rights, it is counterproductive to the goal of increasing access to public lands. Bad faith tactics will result in fewer property owners willing to negotiate with the federal government to allow access across their property. It also increases animosity between private property owners and the public.”
He pointed out that there is a “wider, better maintained road just a few miles” from the easement for the public to reach the same part of the forest.
The complaint points out the original easement allowed access to the government and its “assigns” but also required it to be reconstructed, patrolled and maintained.
“The text of the 1962 easement is notable in that it grants the easement only to the United States of America and ‘its assigns.’ There is no grant of this easement for general public use and access purposes,” the complaint states.
Yet, McCoy noted, the local Forest Service ranger “recently declared in a March 19, 2018, email sent to another neighboring private landowner … that the restricted road easement over the private property is deemed to be ‘open to the public.'”
