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Access to Recreation

It's The Last Best Place …And Everyone Wants A Piece Of It

Lakeside TrailLakeside Trail Near Salmon Lake

"You can't keep selling the scenery without it getting a little threadbare," the Montana Standard editorialized, concerning efforts by the Bureau of Land Management to prepare the upper Missouri River for whatever tourism the Lewis and Clark bicentennial may bring. Throughout Montana, on public land, private land, and along the rivers and streams, more people are shouldering one another aside to enjoy the great outdoors.

Montana's Public Lands

In Montana, two state agencies and four federal agencies manage more than 31 million acres of land, roughly one-third of Montana's total land area. Each of Montana's tribes has its own provisions for limited recreational access to reservation lands.

Montana Fish, Wildlife, and Parks (FWP) administers fishing access sites, wildlife management areas, and state parks - more than 275,264 acres. Montana Department of Natural Resources and Conservation manages 5.2 million acres of school trust lands; these lands generally require a permit to access them for any purpose.

Bureau of Land Management (BLM) administers more than eight million acres, including national monuments, wild and scenic rivers, and other areas. Management is for multiple use: recreation, resource extraction, and other uses.

The US Forest Service manages 10 national forests covering more than 16 million acres, generally managed for multiple use. These lands include more than three million acres of designated wilderness, which is managed more strictly than other lands (for example, the use of mechanized equipment is prohibited).

The US Fish and Wildlife Service administers more than 1 million acres of National Wildlife Refuges and waterfowl areas, managing for wildlife and compatible public uses. And the Bureau of Reclamation administers about 200,000 acres of land and 100,000 acres of water surface, often contracting management to other federal and state agencies.

Right of Way

One of the most controversial and widely reported access issues on public lands is the regulation of motorized vehicle use, especially snowmobiles and off-road vehicles. On one hand, users of these vehicles believe they should have public lands access. On the other hand, vehicle noise and odor bother hikers and other recreationists, and when these vehicles leave established roadways, they can disturb wildlife and harm habitat. While snowmobile use in Yellowstone National Park has received the most publicity, how to manage and regulate snowmobile and off-road vehicle use are issues throughout Montana's public lands.

Another vehicle-related controversy was sparked by the "roadless" rule—an order signed by President Clinton in January 2001 barring most logging and road-building on more than 58 million acres of national forest land. It touched off a national debate including the issue of recreational access for hunters, elderly people, the disabled, and other groups wanting to enjoy more remote areas. The rule withstood a challenge from timber interests in the 9th US Circuit Court of Appeals in December 2002. The decision read in part, ""The unspoiled forest provides not only sheltering shade for the visitor and sustenance for its diverse wildlife, but also pure water and fresh oxygen for humankind."

What's Happening Next Door

The Casper Star-Tribune reported on how changing demographics are shaping recreation on Wyoming's public lands. Glendo Reservoir in southeast Wyoming used to be primarily for weekend fishing. Now, more people are staying for summer-long visits for water sports, resulting in more clashes between anglers and jet-skiers. People want more motorized access, and off-road vehicles are penetrating wilderness areas. There is more sport climbing, which requires vehicles to get to the best spots. All of this leads to more rescue operations - for Generation Xers tackling extreme sport challenges as well as Baby Boomers pushing their wilderness adventures too far. One land manager predicted that Boomers will increasingly use their education and work skills to insert themselves more into land use planning.

"The public lands have never been under as much scrutiny …"

… and the source of so much conflict, as they are today. Environmentalists fight the loggers and the miners and the drillers. Hikers hate ATV riders; snowmobilers leave backcountry skiers cussing in clouds of purple exhaust. Ranchers who lease grazing rights run afoul of hunters who say that the forage eaten by cattle could support vast herds of game. Communities surrounded by public lands that produce almost no revenue watch their children leave home for work in the cities. Western politicians yell 'federal government!' from their soapboxes, and crowds roar with anger."

column by Hal Herring, Field and Stream, May 2001

Whose Wildlife Is It, Anyway?

The public trust doctrine is the widely held concept that wildlife belong to the people and that states act as trustees in managing the people's wildlife. Montana's traditions of recreational access have emerged from this concept. But newcomers and new ways of living are challenging these traditions - in particular, when it comes to members of the public hunting the public's wildlife on private land.

A new breed of buyer—When Montana ranchlands are sold, the buyers are often recreation buyers, sometimes called amenity or conservation buyers. They're interested in scenic and recreation values, which may include fishing and hunting - but they want privacy. When these buyers move into what they view as their private playground, resident hunters find themselves locked out of ranches and farms that used to be accessible with just a knock on the door. Already active in the western third of Montana, these buyers are appearing in the eastern counties, where populations are aging and elderly landowners are selling ranch property.

Pay per hunt—Outfitters leased 6 million acres of Montana farms and ranches in 1993 and 7.5 million acres in 2001. "Big dollars are driving it," one hunter told the Bozeman Chronicle. "I'm born and raised here in Glendive and in the last few years, there are over 100 sections of private land that I used to have access to that I no longer can hunt on."

Some ranchers charge each hunter for access or lease land to small groups of hunters, which gets around the state cap on the number of outfitting licenses. HuntMontana is a membership organization that arranges long-term access agreements with landowners and then allows its members to hunt on any of the properties. Asked about these private arrangements, Jim Posewitz, founder of Orion the Hunter's Institute, told the Chronicle, "Commercial interests are pursuing wildlife to the exclusion of the public. It is very important to distinguish between traditional outfitters who do public backcountry services … and those blocking up or blocking off public access and then using that advantage to commercially capitalize on a public resource."

The Montana Stockgrowers Association sparked controversy when it proposed that the state establish the "Montana Wildlife Partnership," which would allow landowners to set up their own wildlife management units for hunting and sell a guaranteed number of big game tags to the highest bidders. After objections from hunting advocates and others that this would essentially privatize the public's wildlife, the association announced that it was "rethinking" its plan.

Insult to injury - When new landowners flaunt their wealth, insult is added to the injury of losing access to the land. For example, Stock Farm is an exclusive residential community, with luxury homes and a championship golf course, developed in the Bitterroot Valley by San Francisco stock brokerage giant Charles Schwab. Calling it the shift from Big Sky Country to Big Bucks Country, the San Francisco Chronicle observed, "Western Montana is no longer the Old West. It is the New West of wealthy recent immigrants living in uneasy coexistence with poor if proud longtime residents. … Locals who once rode their horses on the property or hunted the abundant deer and elk that graze its pastures and timberlands are now excluded."

There's another side to the coin, however. The article also quotes a woman who lives outside one of the Stock Farm's gates with her husband and two children. "Maybe half the people are against [the Stock Farm] because they feel like outsiders are taking over, but I also think about half the people favor it. It made it possible for us to live here. My husband is working on the [Farm's] irrigation system. I think it's positive for the community."

"Montana is rapidly changing …

…as oil companies, computer gurus, actors and celebrities are buying up the land. It seems that the federal, state and county agencies are always caving in to them, whether it's a land, road or wildlife issue."

- Letter to the editor, Great Falls Tribune, 1/10/03

FWP Programs for Access

Block Management pays landowners to allow public hunting on their property and helps them manage the hunting operation. Nearly 1,250 farmers and ranchers (five percent of Montana's total) had 9 million acres (eight percent of the Montana's total) enrolled in the program in 2003. This is the largest program of its kind in the nation.

The governor-appointed Private Land/Public Wildlife Council is made up of citizens representing interests of hunters, landowners, and outfitters. The Council evaluates how the Block Management program is working and develops recommendations for improvement.

AccessMontana—Montana's land is a patchwork of public and private sections. This FWP program negotiates agreements with landowners for the public to traverse their property to reach federal or state parcels. In addition to making more land accessible, the program also relieves some recreational pressure on private land.

Recent Laws on Access Enacted in Montana

  • 1985—Stream Access Law—public use of streams allowed between high water marks.
  • 1991—State Land Access Law—legally accessible school trust land opened to hunters and anglers.
  • 1993—State Land Access Law Revised—access extended to other recreational users.
  • 1999—Hunter Permission Law—landowner permission required for all hunting on private property.

A Perspective on Changing Times

Alan Charles is FWP's coordinator of landowner-sportsmen relations. He travels some 40,000 miles a year, working with public agencies, interest groups, and individuals to help people get access to recreation.

Charles says there are "blinking lights going off everywhere" in the state with regard to access, often related to changes in land ownership. People from elsewhere buy beautiful properties, but they don't want to give hunters access to the land. Or people buy property on scenic trout streams and prevent other anglers from getting to the waterway. Or they buy property on a stream popular with floaters but don't allow floaters to use their shorelines. Real estate agents sell private land based on access to public land, whether it's in the western mountain ranges or federal or state tracts in the east: "buy 80 acres and control access to 100,000 acres."

"I still meet many traditional Montana landowners who say, by virtue of my being blessed and being able to live my life on the land, I feel an obligation to share it," says Charles. "But new owners coming into the state don't have that same set of values. They buy the land precisely so they can have exclusive access. Then there are changes in management from one generation to another. Where the granddad used to allow the public to come on the land, the younger generation assumes ownership, and they say, 'I've got to make a living, and I'm going to change how we do things.' And that creates conflict."

Charles has seen people in western Montana sell their property to people from out of state, then purchase less expensive property for themselves in eastern Montana - bringing different traditions and values from one part of the state to another.

What about the people who manage the land? "Historically, we needed good biologists to count critters and good lfaw enforcement people to enforce the rules. Now, what limits us is not biological principles but social principles. We need the ability to work within this fascinating system where we have private property rights along with public ownership of wildlife."

He continues, "Some of the new landowners coming in with great wealth and buying extensive parcels of critical land … their first contact with the agency is with a biologist who's telling them what they're doing wrong or a local warden who's writing them a ticket. After that, we never get back in the door. We can turn this around if we work with the real estate agencies and learn about the new people. Then we can go to them and help them understand local traditions and wildlife information, help them make decisions."

"Cold Weather and Low Wages"

In general, all Montana surface waters capable of recreation use may be used by the public without regard to ownership of the underlying land, and all natural streams are available for recreation without landowner permission.

That's what the law says. In practical terms, "Some Montana fishermen joke that the state's trout streams and rivers have become so crowded, you can't case a fly these days without hooking an out-of-stater," notes an Associated Press article. Landowners, outfitters, and individual sportsmen are concerned about crowded rivers. At the same time, communities with businesses that depend on the waterways for economic activity fear restrictions, and individual water users still want open access. Steve Ortez, Great Falls angler, told the reporter, "We've been found out, the state's been found out … I don't want to take a number in my own state."

Ortez is among the diverse members of the River Recreation Advisory Council, appointed by Governor Martz to develop recommendations for managing river and stream access.

For FWP, the regulatory issues involve regulating the use of certain waterways at certain times of the year and balancing access by residents, who feel they have a prior claim, and nonresidents, who bring out-of-state dollars into Montana's economy. One Montanan told a

reporter, it's "high time" residents received preference. "Sportsmen are saying, 'wait a minute, there's a reason we put up with cold weather and low wages.' It's the quality of life. But we're losing our quality of life."

Smith River Reflects Deep Feelings

The Smith River has its headwaters in the Castle and Belt Mountains of Meagher County and flows to the Missouri primarily through private land, except for the 60-mile stretch from Camp Baker to Eden Bridge, where public floating is allowed by permit only. Each year, about 4,000 applicants apply for about 750 public launch permits allocated through a drawing.

A small number of the landowners along the Smith have believed they have direct and unrestricted access to the river from their properties for recreation floating, based on their interpretation of the Smith River Management Act passed in the 1989 legislative session. Since the implementation of the Act in the early 1990s, these individuals (and all other landowners along the river) have been granted more liberal floating opportunities by FWP than those given to the general public.

In 1999 and 2000, FWP wrote to all the landowners of record on the Smith River clarifying the FWP Commission-granted floating opportunities available to them. Some landowners did not agree with how the Commission rules for floating were developed. After considerable controversy, a lawsuit was filed against FWP and the FWP Commission in early 2001 by a Smith River landowner.

The Commission is again attempting to find some middle ground among landowners along the river, recreational floaters, and outfitters using the river on the issue of landowner floating. In October 2003, the Commission issued a tentative proposal for public comment in an effort to resolve the issue. The proposed modifications to the Smith Rule would provide the opportunity for a landowner to designate a "party leader" (other than the landowner or a member of their immediate family) to lead landowner floats on that portion of the river that flows past a single landowner's contiguous property.

The Smith River is an extremely important recreational resource to Montanans throughout the state. The number of public launch applications increases each year, and the recent drought conditions have resulted in very short float seasons. The various users of the Smith River (landowners, the public, outfitters) have varying perceptions of the situation, and the FWP and FWP Commission are attempting to implement a balanced rule-making process amid the resulting emotion and controversy.

Comments on the Smith River Controversy

  • The Montana Wildlife Federation issued a press release titled "Feudal Lords want bigger piece of Smith!" The release said, "This creates a modern class of nobility, a user class based on the amount of acreage owned."
  • One of the landowners responded, "This has nothing to do with wealthy landowners trying to get access to the river." Instead, she said, landowners are more concerned about the river's water quality, fire hazards caused by floaters, and managing weeds along the river corridor. "Our issues are protecting that resource and protecting our property rights," she said.
  • A Montanan who applied year after year for Smith River float permits countered, "It's a public river. They don't own the river. What right do they have to superior rights?"

The New Battle of the Bighorn

The land along the Bighorn River in southeast Montana is very valuable - new houses continue to appear, and there is pressure for even more residential development. Residents told the Bighorn County Planning Board they wanted some assurance that the natural beauty of the river and the wildlife habitat along its banks would be protected. Also, thousands of anglers spend millions of dollars every year in this are, and there were concerns that the appearance of more buildings would spoil their experience and drive them to other places.

Much of the riverfront south of Hardin is owned by the Crow Tribe or tribal members, and the tribe placed a moratorium in any development within 500 feet of the river. When the Planning Board imposed a moratorium on construction within 300 feet of the river, however, the affected landowners filed a lawsuit claming that their private property rights were violated.

One landowner told the Billings Gazette, "You've got to be able to see the river. We look out our window at the river and see all kinds of wildlife. Everything goes with the tranquility of the river running by. It's a lifetime dream." A resort owner said he wasn't opposed to the idea of river setbacks but wants regulation on a case by case basis. On the other hand, an outfitter who runs his own lodge said, "For those of us fortunate enough to have land along the river, it's up to us to set the example and protect scenic conditions. This isn't the East Coast."

Personal Ponds

Since the early 1990s, there has been a steady increase in the number of people securing water rights to build fishing, recreational, or ornamental ponds. The Billings Gazette reported that in the Bozeman area during the last 10 years, more than 450 fish ponds were built, nearly twice as many as were built in the previous 40 years. While the owners enjoy exclusive use of their ponds, the stocked pond fish and sun-heated pond water can escape into rivers and streams, potentially harming habitat and native fish populations. There are professional pond builders who are more attuned to such issues, but their services are accessible only to the wealthier landowners. "There is rarely a public benefit for using public waters for a private pond," FWP's Kathleen Williams told the Gazette.

Recreation and Wildlife

The Montana Chapter of the Wildlife Society is a professional association of wildlife biologists. In 1999, this group released a report that compiled the findings of thousands of research studies on recreation and wildlife, documenting how recreational development and activity can affect wild species.

Here are a few examples:

  • Reptiles and amphibians are at greater risk for vehicle accidents from off-road vehicles, and recreational activities can disrupt breeding habitat.
  • Human disturbance can destroy bird nests and cause adult birds to abandon nests.
  • Snowmobiles can crush small mammals that live under the snow, and snowmobile trails can make deep-snow areas more accessible to predators.
  • Destruction or disturbance of riparian habitat and use of motorized watercraft in waterways are significant threats to beaver and other semi-aquatic species.
  • Ungulates can be adversely affected if recreational building or activity disturbs their use of seasonal ranges.
  • While skunks and coyotes generally do well around human activity, grizzly bears and other large carnivores are at risk from the increasing year-round use of motorized vehicles in more remote area, which disturbs the quiet places these large predators need to reproduce.
  • Dogs accompanying recreationists chase, prey on, and carry disease to wildlife.
  • Human recreational activity can damage vegetation and cause other harm to sensitive habitats.

Two More Angles on Access

  • The Montana Pilots Association began an effort to open up backcountry landing strips in Montana, saying they wanted the airstrips open for recreation and as emergency landing sites. The pilots' interest in opening an abandoned strip in the FWP Beartooth Wildlife Management Area on the Missouri River brought objections from FWP biologists, wilderness advocates, and the local sportsmen's clubs.
  • In the aftermath of the 9/11 terrorists attacks, managers of Montana's more than 3,200 sizable dams had to rethink public access for security purposes. Anglers generally haven't objected to new restrictions to their favorite fishing spots - but when the Fresno Reservoir fishing hole was fenced in, Jim Rettig of Walleyes Unlimited said, "It's the stupidest thing in the world."

Sources

  • Interview with Alan Charles, Montana Fish, Wildlife, and Parks
  • Series on hunting access by Ron Tschida, Bozeman Chronicle, February 2003
  • "Controversial HuntMontana aims to bridge gap between hunters, landowners," by Michael Babcock, Great Falls Tribune, 3/14/02
  • "Face of people at play changing," by Brodie Farouhar, Casper Star-Tribune, 4/8/03
  • "Anglers, hunters find paradise in their own backyards," Great Falls Tribune staff, 3/23/03
  • "Hunters must follow rules on public lands," Staff, Great Falls Tribune, 10/24/02.
  • Montana Editorial Roundup, Associated Press, 3/12/03.
  • "Stockgrowers consider trading land access for right to sell tags," by Michael Babcock, Great Falls Tribune, 12/12/02
  • "Stockgrowers association withdraws hunting license proposal," Associated Press, 1/15/03
  • "Stockgrowers' proposal draws fire in Laurel," by Mark Henckel, The Billings Gazette, 10/13/02
  • "Private Ponds, Public Problems," by Dan Burkhart, The Billings Gazette, 7/7/02
  • Montana Access Guide to Federal and State Lands, Montana Interagency Access Council, 8/01/01
  • "Big Bucks in Big Sky Country," by Glen Martin, San Francisco Chronicle, 10/18/00
  • "Loved to death? Council studies Montana river recreation," by Bob Anez, Associated Press, 8/29/02
  • "Montana closes ranks now that a horde runs through it," by Jim Robbins, The New York Times, 2/18/02
  • "Road ban reinstated by appeals court," by Sherry Devlin, Missoulian, 12/13/02
  • Montana Fish, Wildlife, and Parks website
  • "Bush Forests Glance," Associated Press, 2/28/03
  • "Smith River proposal creates access uproar," by Brett French, Billings Gazette, 12/04/02
  • Three-part series on development along the Bighorn, by Lorna Thackeray, Billings Gazette, April 2003.
  • Effects of Recreation on Rocky Mountain Wildlife, 1999, Montana Chapter of the Wildlife Society
  • "Pilots lobby for landing strips in Montana's backcountry," by Michael Babcock, Great Falls Tribune, 1/17/02
  • "Fresno Dam rules anger anglers," by Karen Ogden Ivanova, Great Falls Tribune, 9/10/02.

This vignette was completed in October 2003.