Don’t Fence Me Out : Much of the West Is Still Public Land, but You Can’t Always Get There From Here

<i> Grace Lichtenstein is a New York-based writer</i>

THE SHOWDOWN at Sixteenmile Creek was shaping up as a modern-day version of the shoot-out at the O.K. Corral. On one end of a damaged wood bridge stood a Montana rancher, his video camera aimed at 14 outdoorsmen massed on the other end. The hunters and fishermen had come to replace the planks the rancher had knocked out of the bridge and to tear down the barbed wire he had strung up to keep strangers away from his brother’s cattle ranch.

And Ronald B. Stevens, leader of the outdoorsmen, was not about to back down. “Bill, we’re going to remove that fence,” Stevens said. “So if you want to call the sheriff, you better call him now.” With that, Stevens and his companions spent an entire summer’s day ripping up barbed wire and mending the bridge while Bill Brainard, the rancher, shot video footage to show his lawyers later.

At stake was entrance to hunting and fishing areas along Sixteenmile Creek, a stream about 45 miles northwest of Bozeman. Finally, though, Brainard’s tape never saw the light of day. Instead of calling in the law and going to court for his brother, who lived in Seattle, he simply allowed the bridge to be rebuilt and remain open.

The confrontation at Sixteenmile Creek a year ago was resolved peacefully. But it is a good example of a conflict being played out all across the United States. The battle pits landowners entitled to privacy and control of their own property against outdoorsmen entitled to access to public lands. Few Americans realize that many of the roads leading through or to their favorite woods, beaches and fishing streams cut across someone’s land. Twenty years ago, it didn’t matter much. Farmers and ranchers, especially in the West, traditionally allowed unrestricted access through their property.


But the Western ethic is changing rapidly as use of the wide-open spaces increases. More people, particularly urban dwellers, want to make a home away from home on the range, and more landowners want them to go back where they came from. As the conflict has intensified, others have been drawn into the fray: public officials from the U.S. Forest Service and the U.S. Bureau of Land Management, environmentalists who see threats to wildlife and public resources, and so-called outfitters, who depend on out-of-the-way, well-stocked game preserves to make a living as wilderness guides.

The private-versus-public issue has cropped up in Colorado, where an Aspen landowner and local groups have fought for more than two years over passage to Hunter Creek, a popular picnic area. Three years ago in Idaho, singer-songwriter Carole King provoked a furor by winning the right to close a road, leading to the Salmon River, on her ranch in the Sawtooth Mountains. Last year in Wyoming, a band of residents marched to the top of Elk Mountain to protest a rancher’s plan to build a private “safari” resort around the peak, which is U.S. Forest Service land. Farther west, the public’s right to walk to river banks and beaches has triggered dissension along the American River near Sacramento and along the coastline in Oxnard Shores. The state established the coastal commission in 1976 to handle multiplying conflicts over access to California’s more than 1,000 miles of beach.

But nowhere is the controversy over access to public lands more heated than in southwest Montana, a breathtaking panorama of snow-dusted mountains intersected by gorgeous valleys through which some of the finest fishing streams on the continent flow. It is here that large parcels of ranchland have been bought in the past few years by the rich and famous, including movie stars Dennis Quaid and Brooke Shields and media heavyweights Tom Brokaw and Ted Turner (who bought a 128,000-acre Montana ranch in 1989).

The controversy “verges on open warfare,” according to a recent study by the National Wildlife Federation. Who are the combatants? On one side are the people for whom government property is one enormous playground. Hunters, fishermen, backpackers and bird-watchers flock to the open spaces in a quest for trophy elk, fat rainbow trout or simply a bit of solitude. Many of these outdoorsmen arrive on foot and don’t want roads to their favorite places built. Yet each season, they are disturbed to find new fences smeared with orange paint--the Montana no-trespassing symbol--which prevent them from reaching thousands of acres they have visited in the past.


Like outdoorsmen, motorized sportsmen--snowmobilers, dirt bikers and 4-wheel-drive enthusiasts--are eager to head for the hills, if only for a day or a weekend. Once there, however, they sometimes build fires where they shouldn’t; leave gates ajar, allowing livestock to wander off, and shoot rifles indiscriminately.

Not surprisingly, such carelessness angers the quieter outdoorsmen and rural residents as well. Longtime Montanans who once welcomed traditional field-and-stream types and wealthy out-of-staters who have moved to the area in the last 20 years are alarmed by the reckless hordes encroaching on their privacy.

“Hordes” can mean five or 50 trucks of hunters on a November weekend. That may not sound like much to a veteran of the Hollywood Freeway, but by the standards of a state like Montana--fourth-largest in size and 44th in population, it’s an invasion.

This “not-in-my-back-yard” attitude, in turn, inflames people such as Ron Stevens and Lewis E. (Gene) Hawkes, president and executive director, respectively, of Public Land Access Assn., a Montana coalition dedicated to upholding the right of all citizens to gain access to federal and state land. Many of these people, who were raised on small ranches or in small Western towns and cities, are infuriated that a few “haves” can seal off public rights of way through their property. Said one Montanan: “The big shots lock things up tighter than a drum.”


RON STEVENS, a 53-year-old native Montanan, strapped a six-shooter on his hip just in case we met unfriendly animals as we hiked up a trail from Ennis Lake. Smiling, he quoted a favorite passage from John Steinbeck: “Montana is what little boys think of when they hear Texans talk about Texas.”

It was a warm summer morning, and he and Gene Hawkes were about to show me how one landowner tried to block the public’s entrance to a chunk of Montana that they believe everyone should be able to enjoy. Along a trail between a rocky ridge and granite-faced mountains, we paused to take in the view. “See this?” Hawkes said, sweeping his arm at the landscape. “This is your ranch.”

“All Montanans are ranchers,” Stevens chimed in. “Their ranch is the Big Sky ranch, and it includes 8.1 million acres of BLM land, 10.2 million acres of National Forest and 5.2 million acres of state school-trust land. Our brand is the Flying R, which stands for freedom to recreate.”

Stevens is an avid hunter and backpacker who waited years to return to the pleasures of “the last best place,” as Montanans like to call their state. A career Army officer, he retired as a colonel in 1987 and moved to Bozeman because maps showed vast stretches of public land surrounding the city. “I didn’t want to have to keep asking ranchers for permission to go on their land,” Stevens explained as a red tail hawk circled over our heads. But soon after settling in, he discovered that much of that public land had been practically sealed off.


Ranchers had put gates across trails that were, in his opinion, the only accessible routes into the Gallatin and Madison river valleys and the mountains that soared above them. When he learned that Hawkes, a retired Forest Service supervisor, had formed a citizens group in 1985 to fight such closures, Stevens immediately signed on.

The skirmish that put Public Land Access on the map involved the Windy Water Ranch. Tucked away in a corner of southwest Montana near Yellowstone National Park, Windy Water is a 2,390-acre tract of rolling alpine meadow surrounded by the Rockies, dotted with sage and matted with stands of conifers. It borders on a national forest, including a pristine, splendidly isolated elk ground called Cowboys Heaven.

The ranch was bought in 1986 by millionaire Robert M. Lee, owner of Hunting World, an exclusive sporting goods store in New York City. Hoping to provide a “protected habitat” for game animals, Lee later decided to close a portion of what locals knew as the Old Indian Trail where it passed through his land. “Hunting pressure” from outfitters “has been so heavy in recent years,” he explained in a letter to the Forest Service in 1987, that mature bull elk were seldom seen in the area.

Even though the original route of the Bannack Indians had been changed by a previous owner, the Old Indian Trail was the route many hunters took to reach two prime elk regions, including Cowboys Heaven.


At 63, Hawkes is a feisty Idaho native whom opponents regard as a hothead. He organized Public Land Access to give voice not only to hunters and fishermen but also to “motorcyclists, 4-by-4s, snowmobilers, backcountry horsemen, all of ‘em.” Once he heard about the planned closing of the Old Indian Trail, he wrote Lee and warned that if Public Land Access didn’t hear from him within 10 days, the group would sue.

According to Hawkes, Lee “didn’t try to negotiate. He just put up ‘No Trespassing’ signs. It was the arrogance of a big out-of-state landowner who came and said the hell with local people that got him in trouble.”

Public Land Access sued Lee on the grounds that the trail was a prescriptive right of way--that is, a historically used route--and thus public. In a landmark decision in 1988, the first in which a state court declared a trail public by prescription, a Madison County District Court judge ruled in favor of Public Land Access. (Although Lee did not return “If it’s too easy to hunt, pretty soon there won’t be anything left to hunt.”

Forest Service officials, sportsmen’s groups and the Public Land Access counter that some outfitters, in order to stifle competition from non-guided local hunters and to ensure a high quality elk herd for their clients, are encouraging ranchers to lease private land for exclusive use by fee hunters and to close roads through their property to the forest beyond.


The effect is what Rich Day, a spokesman for the Montana Wildlife Federation, calls “the privatization of wildlife.” Large spreads are turning into “game ranches” that isolate public land for exclusive use by affluent visitors.

PART OF THE PROBLEM in the West can be traced to the days of Abraham Lincoln, when the government divided much of the Rocky Mountain region into a checkerboard pattern. To encourage the building of rail lines, the government gave railroad companies every other square mile of land.

Over the years, squares of the checkerboard were consolidated into larger blocks of private and public land. Much private land passed into the hands of ranchers or timber companies owned by railroads, such as Plum Creek Timber, a subsidiary of Burlington Northern Railroad. By closing a road leading to government land, ranchers and timber companies can block access to not only land in an adjacent square but also territory miles away.

Bob Gibson, supervisor of the Gallatin National Forest, fears that access problems will only grow worse in the future, especially as more large private tracts of land are subdivided into retreats for wealthy part-time Montanans. Right now, he says, there are numerous places along the boundaries of the 1.7-million-acre forest where access is inadequate.


In 1987, the Forest Service published a management plan identifying 48 additional access points deemed necessary in Gallatin alone. But it was soon attacked by a raft of conservation organizations.

“Everyone agrees that in cases where public land is landlocked and private landowners block access, the Forest Service should do something,” said Michael Scott of the Wilderness Society in Bozeman. “Where the consensus breaks down is (deciding) what constitutes reasonable access.” Unlike Public Land Access, the Wilderness Society generally prefers hiking and horse trails to roads.

“The charm of Cowboys Heaven is its isolation,” Scott said. “The wildlife is better. There are fewer people. If you put roads everywhere, you (put) stress (on) wildlife and cut trees.”

“We’re not pushing high-standard roads,” Gibson countered, adding that the agency simply wants to offer the public reasonable ways to use the land. To that end, the Forest Service has negotiated several land exchanges. These are complex arrangements that can require having a nonprofit group to buy private land to donate to the public, and the government favors such transactions because they leave all sides happy.


In Paradise Valley, the lush land bordering the Yellowstone River from Livingston, Mont., to the edge of Yellowstone National Park, Gallatin National Forest officials have played a part in several successful land exchanges, one involving two Hollywood celebrities and another involving the controversial Church Universal and Triumphant.

One fight began over land owned by actor Warren Oates and “The Wild Bunch” director Sam Peckinpah. Along with friends such as writer Tom McGuane and actor Peter Fonda, the two men were among the literature and film crowd that gave Paradise Valley a reputation as a trendy enclave.

According to Joseph Swindelhurst, their Livingston lawyer, Oates bought property from McGuane in the 1970s and then sold half to Peckinpah. The parcel included a road along Sixmile Creek, the principal entrance to a portion of the rugged Absaroka Beartooth Wilderness. At first, it was open to everyone.

Then, in 1975, Oates and a local sportsmen’s group quarreled bitterly because the actor had begun to close the route occasionally. In the ultimate standoff, the sportsmen drove a bulldozer up the road. Swindelhurst recalled that “Oates went berserk,” sued the county to get the road declared private and won. After the Montana Supreme Court upheld the decision in 1978, Oates locked a gate across the road for good.


Following the deaths of Oates in 1982 and Peckinpah in 1984, their children decided to sell the land. Seeing an opportunity to regain access to the Absaroka Beartooth Wilderness, the Forest Service stepped in. So did the Trust for Public Land, one of the nation’s largest land conservancies, which buys and donates to the public land important for recreation and open-space uses.

In 1988, the Trust for Public Land acquired about 500 acres of the Oates-Peckinpah property for the Forest Service in exchange for four scattered parcels of public land elsewhere. The deal opened up 25,000 acres that had been shut off for more than a decade.

Another nonprofit group, the Rocky Mountain Elk Foundation, has obtained land in Paradise Valley to make sure that large portions of the Gallatin National Forest and the Yellowstone ecosystem remain undeveloped and open to visitors.

The Rocky Mountain Elk Foundation intervened as land broker to solve a conflict between the public and the Church Universal and Triumphant. The cult, formerly based in Calabasas, Calif., and led by Elizabeth Clare Prophet (known to her followers as Guru Ma), became the largest landowner in Park County in the 1980s when it bought Malcolm Forbes’ 12,000-acre spread, and three other parcels bordering Yellowstone Park that totaled about 18,000 acres.


The church caused consternation in Montana by fencing off its land and building bomb shelters on it. (At one time, Guru Ma predicted the Armageddon in the spring of 1990, then backed off when it didn’t occur.) The conflict with local people escalated spring when three of the church’s 20,000-gallon underground-oil storage tanks sprang leaks.

Several years ago, the Forest Service considered bringing condemnation proceedings against the church to regain access to parkland through its property. Rather than pursue the long, costly hearings to condemn the land, though, the federal agency, the state and the Rocky Mountain Elk Foundation bought 3,400 acres of church land last year donated it to the federal agency. The Forest Service then set aside the property as an elk habitat.

SUCH LAND EXCHANGES are “win-win” deals, according to Mike Williams, head of recreation and land in the Gallatin National Forest. Many conservationists agree that donations of land to organizations such as the Nature Conservancy or the Trust for Public Land is the most equitable solution to the problems of access throughout the West. Environmental groups are pleased because these arrangements typically prevent large chunks of undeveloped land from being subdivided by future owners. The Forest Service also benefits because it avoids confrontations or condemnation proceedings. Owners are happy because they either are paid for their land or receive a tax break for donating it.

“In 18 years, we have acquired over $500 million worth of real estate in 37 states,” said Craig Lee of the Trust for Public Land’s Seattle office, which handled the Sixmile exchange.


But it is important to note that the Trust for Public Land and other conservancy groups usually deal only with willing sellers. So although land exchanges have decided several cases, they by no means can be expected to work in every instance. And however Montana and other Western states handle their access problems, the disputes are bound to proliferate.

After a yearlong study, the Keystone Center in Colorado, a nonprofit organization devoted to resolving difficult public policy conflicts, stated flatly that the access issue was at a critical stage. In the 1988 study, Keystone also called for a national task force on access. So far, that call has gone unheeded.

In the meantime, the problem is not only “a question of signs and fences, maps and enforcement personnel,” noted Derrick Crandall of the American Recreation Coalition, a nonprofit federation of private recreation interests. Americans, Crandall declared, must also learn to “treat their back yards with love and respect--as those who live with nature in the West have historically.”