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Ranches in public lands areas are almost always listed to include the leased public acres in real estate bochures. This is because the grazing rights on any included grazing leases are part and parcel of the carrying capacity of that ranch .

If you read the whole listing , it should specify the total *deeded* and total *leased* acres , and any buyer worth two shakes knows the difference.

Sure.

I can guess their rationale is that the public land is accessible from other areas, thus the private landowner blocking access in the specific area is "legal".

They are overlooking the fact that, in a nutshell, the public trust doctrine requires the government to maintain the resource in question for the REASONABLE use of the public.

If the landowner has blocked the only reasonable access point for miles in either direction, a case could be and likely should be made, that access to the area through those other avenues is no longer reasonable and thus is a de facto violation of the PTD.

Courts HATE the reasonable argument, as it will always come down to a case-by-case argument, and is probably a guarantee for appeal.

Also, I'd be sure to make one helluva run at the fact that the public has accessed the PUBLIC land beyond the private holdings for years (as long as possible), and thus has created a public right-of-way in fact, or at least an easement for the same, by acquiescence and consent and/or by adverse possession (depending on the specific state).

In most states, a landowner can be prevented from blocking a long-used right of way to access private or public lands by estoppel, if the facts present themselves so that the party arguing for the right-of-way can show that for enough years, and with clear, unambiguous, and open use, the public (or even a certain landowner) has used that right-of-way to access the other lands in question.

What about landlocked situations where there really is no public access, excluding air transportation?

Unfortunately, recreational use has not been considered adverse for the purposes of creating a prescriptive easement in Montana.

Estoppel...I will have to look that up.

Thanks for any/all professional insights you have on this subject.

In landlocked situations, are you talking about the surrounding land being owned by one, or by several, private landowners? If one, the case should be relatively easy. If multiple, they ALL must be parties to the suit, and that is going to be a friggin' mess....

The fact that recreational use has not been considered for adverse possession and prescriptive easements sucks. That needs to get changed. But, what about other uses? Grazing, mining, timber, etc.?

Estoppel means, essentially, that the other party is prevented from mounting a defense against the claim by the facts and history of the prior use. I.e. if you bought a piece of land in front of mine, with clear knowledge of the fact that I used a road through the property you now own, and that I have proof of use long enough to claim a prescriptive easement or adverse possession, estoppel would prevent you from asserting any claim to that land, or defense to your blocking it.

You can start here:
http://www.rs2477roads.com/

Unfortunately, the most active groups are motorized-recreation types. However, because of the magnitude of this problem, I�ll take the help from any quarter. CP.

I live in NW Ontario in Canada. I have a 90 acre parcel of bush with 10 acre of field. There are quite a few deer on it and I intend on planting some food plots to improve that heard. There is 180 acres to the south of me I am trying to buy unsuccessfully. I do have the right to hunt it. I do not hunt it yet but probably will next year. I agree with the posts supporting private access to that land. I do not want any Tom Dick or Harry having access to my land. My neighbours boys have bird hunted my land for 4 years and no one else. That is my right to deny access, or to allow it to those I select.

It is against the law in Ontario to enter or hunt privat land without confirmed permission of the landover. I support that and want it to be maintained. If I plan on hunting non public land I will request permission long in advance of the event. I will also share meat and hunt to those demands made by the land owner.

I will never make money from hunting on my land, and I have never been asked for money to hunt private land.

There was a post about supporting land convservation organizations which sounds very sound to me. We need to protect our hunting rights and traditions, as they are direct attack.

Randy
tired after a 36 hour long shift, hope this all makes sense

Exactly. Thank you; I was trying to remember 2477, but couldn't.

Have personal involvment in both these. Generally, the "Right Of Use" must be conferred upon an individual. And generally the courts look more favorably if the individual's access somehow affects his source of income.

Recreational access in the past has not been given as much veracity. But the importance of recreation is increasingly been given more credibility.

But, there is currently a controversial case in Boulder that was just decided (losers plan to appeal) when landowner sued to retain his access across another individuals property to hike and walk his dogs on public land beyond. Doesn't help the winner is a retired judge--accusations of favoritism have been made

There is also the famous case during the harsh winter of 83-84 when a Wyoming rancher had put up a pronghorn proof fence to stop pronghorns from migrating onto and across his land during the winter and spring. Just his luck a the harsh winter ensued and pronghorns piled up and died against his fence--Wyoming took him to court and won, forcing the rancher to remove his fence. Public Trust doctrine figured large in that decison IIRC.

Legal Gack aside, there is still the idea of community and what Cabela's is thoughtlessly doing. Keep in mind, I am probably as adament about personal and property rights as anybody.....


Casey

Yeah, and the Blue Ribbon Coalition is one of the most rabid groups I have ever had dealings with.........


Casey

I have no love for the Blue Ribbon Coalition; but they do raise some very informative and legally sound issues.

Use what works, regardless of the source. Alliances, however, need not be made.....

Whittail, before you accept that there was never any public access to a specific public land parcel, you really need to get into the Agencies archives from the 1930s and 1940s. There are thousands of miles of public trails and roads that are no longer available because of a variety of political, economic and policy positions of the Agencies. Generally speaking, SR 2477 arguments are reserved for roads and trials established before the consolidation of the USFS.

I posted the following back in 05:

The most serious issue facing both resident and non-resident hunters is the continuing loss of access to big game habitat. As a hobby, I relocate old CCC pack trails that were built for the USFS in the 30s. To gain access to the National Forest, the government acquired easements across private lands to construct the CCC trails and roads. I would encourage everyone to look a USFS map from the 50s and compare the number of access points available to the public 50 years ago to the number available today. Some Forests have given-up, without even a whimper, 70% of the trailheads that originated on private lands and have not provided alternative access to the public lands that were served by the original systems. CP.

CP;

Exactly. If there was a deeded easement, and the NF gave that up without public comment, it might be grounds for an excellent case on the public trust doctrine and public access to a public resource.

What has been stated about recreational opportunities gaining ground as a legitimate issue for such litigation is true.

IMHO, what it will take is the "perfect" test case. Get that, and then use everything at your disposal to make it work.

Id go back further than that. Check with local historians and see if any travel routes were used for trade. Check my post on page 6 where i linked an article on the Little Juniata. PA used data from as early as the 1700's as proof of public trade routes. It can be as elaborate as that, or as simple as the case we had locally years back. A guy bought a piece of property with no access, but was given the the right of way because one neighbor granted the previous owner the right to drive aross his land to cut wood, for over 40 years. In that instance the judge ruled a right of way "grandfathered in" because that trail was in place before the zoning changed.

The best way to vote is with your checkbook. If you don't like something Cabela's is doing, buy your gear somewhere else. Frankly, the past few years the stuff I have bought from Cabela's has been "hit-or-miss." I've come to the point where I mostly use Cabela's for gift cards. Most of my gear I'll bear directly from the manufacturer.

As for the age-old, dirt-tired "east versus west" crap, most of this I hear is from guys who have lived in one place or the other, but not both. In Maryland, most of the places I hunt are over 90 percent private lands. In Montana, my home county is over 90 percent public land. In both places, wildlife exists in the public trust... so even if you own the land, you can't kill game at will. Let's save the whole Native American discussion for another day. With relatively few exceptions, a private property owner has the right to grant or deny access to his property. If some guy buys 10,000 acres of prime elk hunting and decides he's a vegetarian and isn't going to allow ANY hunters on the property... it may be an ass burn, but it is his right. Period. It really doesn't matter if everyone from your great grand-daddy on down has been hunting the land with the previous owner's permission or not. Unless you have a deeded easement or other legal right recognized by the court, you are just out of luck. For that matter, maybe everybody from your grand-daddy on down has hunted one particular spot on public land. If another guys shows up and wants to hunt your honey hole, you are just out of luck.

Here's the deal, folks. This is the way it has always been, and most likely always will be. A hundred years ago, Montana had poor folk and rich folk... and the rich folk could buy more and better land than the poor folk. This is America, the land of opportunity. If you want a big chunk of land, make a big chunk of money and buy your spread. As for the access issue, there's a friend of my family, an old fart, who has access to all sorts of places throughout eastern Montana. He's a turkey hunting junkie. He's gained access by being a helluva nice guy and a thoughtful guest. If you own a decent parcel of land, in Montana or Maryland or any place in between, it's easy to sour on giving folks access. Hunters will come in, toss trash on the ground, leave gates open and basically act like a bunch of asshats. We, as hunters, have essentially the same reputation as a bunch of drunken frat boys. As for access, I know this. A man who is open, friendly, honest and helpful will always have places to hunt... maybe not every place he might like, but more than he needs.

I am also a staunch supporter of private property rights. However, legitimate private property rights have absolutely nothing to do with the capricious and arbitrary actions by many landowners to restrict or eliminate public easements on their property. This is a pervasive problem throughout the rural west, which began to build in momentum shortly after World War II and has resulted in extensive areas of public land being off limits to you, me and every other member of the public. Do you have any idea how many public pack trails (non-motorized) in Montana have been closed to the public with absolutely no repercussions to the private landowners that closed the systems? I don�t want to make friends with these people. I would rather be part of the successful litigation that forces these landowners to give back what they took from the public.

For those that have not been involved in this fight, let me give you a fundamental tenet. Your government (USFS, BLM and DNR) is not your friend in the vast majority of the actions to reinstate access. The Agencies don�t care, or will openly oppose efforts or actions to reestablish these former easements to public lands. I have spent a great deal of money and time on public land access issues over several decades, and I can assure you that it is one hell of a nasty and convoluted fight. CP.

The only sure winner in litigation are the lawyers. Absent a written, deeded easement, the government can acquire an access easement through a fee simple purchase. If the property owner is unwilling, they can acquire the easement through condemnation. As a general legal tenet, government cannot acquire private land through adverse possession.

I'm sure there are some property owners who attempt to unlawfully restrict access to public land. I'm also sure there are some property owners where the access is "traditional" rather than legal and the property owners are well within their rights to say "no." You are welcome to spend your nickels sorting out who is who. As for me, I'd rather be hunting than in a courtroom.

My wife and I just bought some land in MT (Life long resident) that had 27 yard section of access road cutting across the neighbors land. It has been doing this for 54 yeas at least and longer. We brought up the idea that since it has been used for so long doesn't that make it a right-of-way. According to our lawyer it doesn't, that the land owners can shut it off whenever they like, which would then require the owner of the property we bought to take them to court. Chances of winning that were said to very good, but they could still close it in the meantime.

Easiest way to remedy that is offer to buy the small strip of land from the neighbors. If they say yes, either to a direct sale of the property, or to a permanent easement, you're set. If not, you just found out where they are and what you oughta do next.