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Here is the latest information about legal battles between original
Homestead Property Owners and
Glacier National Park
government authorities.
Promises, Promises, Promises!
Written By: William Perry Pendley
Published In: Environment News
Publication Date: November 1, 2002
Publisher: The Heartland Institute
http://www.heartland.org/Article.cfm?artId=10652
--------------------------------------------------------------------------------
In the early 1890s, the land in the northwest corner of Montana,
almost due north of Kalispell, was settled by "homesteaders"
pursuant to the Homestead Act of 1862. In 1901, access to those
homesteads was assured by creation of a road, known today as Glacier
Route 7, running 40 miles from Lake McDonald, in the south, to
Kintla Lake, less than five miles from the Canadian border, in the
north.
In 1910, Congress created Glacier National Park, placing within its
borders all lands, including homesteaded lands, east of the North
Fork of the Flathead River, an area called North Fork. In 1916,
President Woodrow Wilson signed a patent granting title to some of
those North Fork lands, including lands that, in 1984, were
purchased by Jack McFarland from his grandmother.
The Homestead Act granted the public the right "to enter" federal
lands and to stake claims to those lands so as "to reside upon"
them. Later, recognizing that it was including within Glacier
National Park lands that had been homesteaded, Congress took steps
to protect the rights of all homesteaders, providing: "Nothing [in
the Glacier National Park Act] shall affect any valid claim,
location, or entry existing under the land laws of the United States
... or the rights of any such claimant, locator, or entry man to the
full use and enjoyment of his land."
Finally, the patent signed by President Wilson provided, "TO HAVE
AND TO HOLD the said tract of land, with the appurtenances thereof,
unto the said claimant and to the heirs and assigns of the said
claimant, forever."
With such ironclad assurances, the homesteaders, their heirs, and
assigns enjoyed full use and enjoyment of their private property in
North Fork, including during the winter when portions of Glacier
National Park were closed to the general public. Even after the
National Park Service installed a gate at the Polebridge Ranger
Station, property owners like Jack McFarland's grandmother were free
to drive north on Glacier Route 7 to reach their private property.
Moreover, the National Park Service went to great pains to guarantee
that access by providing the property owners the means necessary to
come and go as they pleased.
Fact of the matter is, the National Park Service knew that, by law,
it could do no less. In its 1985 "Land Protection Plan for Glacier
National Park," the National Park Service wrote: "Private land
owners [in Glacier National Park] have certain rights that must be
respected[.]" Although "[public access and use may conflict with
private ownership," because "private property owner rights [are]
guaranteed in the enabling legislation for the park[,]" and because
"private property owner's] retain[] reasonable and adequate use and
enjoyment of [their] property [,]" the National Park Service has no
power to deny access to that property.
Thus it was that, ever since 1910, landowners like Jack McFarland
were able to use their property in all seasons, coming and going
just as they pleased. In time, McFarland restored his grandmother's
home, intending to live there permanently. As it always had, the
National Park Service facilitated and encouraged McFarland's use of
Glacier Route 7.
Then, in late 1999, the National Park Service sent McFarland an
email; it had changed its "policy." As of now, "no one will drive
park roads once they are closed to the public." McFarland's requests
for authorization to continue to access his property year-round were
in vain. So he sued, demanding the National Park Service obey all
the promises made by Congress and President Wilson.
The great Lakota Chief Red Cloud declared, "They made us many
promises, more than I can remember. But they never kept but one;
they promised to take our land and they took it." Little wonder that
Red Cloud's prophetic words are seen, not just in places like the
Crazy Horse Memorial in South Dakota, but in the homes of people
like Jack McFarland.
--------------------------------------------------------------------------------
William Perry Pendley is president and chief legal officer of the
Mountain States Legal Foundation.
=============================================
Glacier National Park Ruling Voids Property Rights
Written By: William Perry Pendley
Published In: Environment News
Publication Date: February 1, 2004
Publisher: The Heartland Institute
http://www.heartland.org/Article.cfm?artId=14294
--------------------------------------------------------------------------------
Jack McFarland owns property, which he bought from his grandmother,
in Glacier National Park.
Like his grandmother and the man from whom she bought the land, who
staked his homestead prior to Glacier National Park's creation and
received his patent from President Woodrow Wilson, McFarland
accesses his property in the only way possible: via Glacier Route 7.
McFarland's property is just three miles north of the Polebridge
Ranger Station. Because of the patent granted to the original
homesteader and the rights guaranteed homesteaders by the Glacier
National Park Act, the National Park Service (NPS) may not deny
McFarland year-round access to his property.
Thus, in the 1970s, when the NPS put barriers on Glacier Route 7 to
prevent the general public from driving north of Polebridge Ranger
Station in the winter, the NPS guaranteed access to landowners.
The NPS did so because it recognized that is what the law requires.
As the NPS explained, in August 1985 in its Land Protection Plan for
Glacier National Park, "[the National Park Service recognizes
private landowner rights to 'reasonable and adequate use and
enjoyment of his property' {are}] guaranteed in the enabling
legislation for the park ..."
However, in December 1999, the NPS sent McFarland an email informing
him "that no one will drive park roads once they are closed to the
public." Though McFarland believes he has the right to use Glacier
Route 7, he was willing to compromise. On January 6, 2000, he filed
a special use permit application asking the NPS's permission to use
a vehicle or snowmobile to travel between his home and the
Polebridge Ranger Station. On January 24, 2000, the NPS summarily
denied that application.
McFarland sued. First, because he claims an easement in Glacier
Route 7, with which the NPS interfered, he sued under the Quiet
Title Act, by which Congress authorized landowners to get title to
property to which the government asserts an adverse claim. Second,
because the NPS arbitrarily and capriciously denied his special use
permit, he sued under the Administrative Procedure Act (APA).
Recently, a Montana federal district court dismissed McFarland's
case. The court ruled he had filed beyond the Quiet Title Act's
12-year statute of limitations, which, according to the district
court, began to run in 1976 when the NPS restricted the general
public's ability to use Glacier Route 7 north of Polebridge Ranger
Station. Though the NPS gave McFarland complete access to Glacier
Route 7, he should have known, reasoned the court, that the NPS
believed it could deny him that right. The court also dismissed the
APA claim because the Quiet Title Act is "the exclusive means" of
resolving property disputes. Both rulings are legally suspect and
terrible public policy.
Since 1910, the NPS acknowledged consistently that it could not deny
people like Jack McFarland access to their property, putting that
understanding in writing as recently as 1985. That written statement
came less than 10 years after, in the court's view, McFarland should
have known the NPS claimed just the opposite. Moreover, when
McFarland requested a special use permit, he was not claiming a
property right but seeking a license, which the NPS could revoke
unilaterally. Under the APA, he has a right, as do all citizens, to
have that request decided in a manner that is neither "arbitrary nor
capricious." Thus, the court has deprived all who have property
disputes with the government of their right, as granted by Congress
in the APA, to fair and equitable treatment.
The court has essentially told property owners who access their
property via federal lands that, any time the United States
restricts the access rights of the general public to use those
lands, it has acted in a manner adverse to the property owners and,
to protect their rights under the Quiet Title Act, they must file
suit. The Montana court has opened the litigation floodgates.
--------------------------------------------------------------------------------
William Perry Pendley is president and chief legal officer of the
Mountain States Legal Foundation.
=====================================================
This is the newest news.
SUMMARY JUDGMENT ASKED IN MONTANA PARK ROAD ACCESS CASE
April 21, 2006 - For Immediate Release
Contact: William Perry Pendley
DENVER, CO. A Montana landowner today filed a motion for summary judgment
seeking a court order that, pursuant to two acts of Congress and the common law,
he is entitled to year-round access to his Glacier National Park property. The
motion comes following an October 2005 ruling by the U.S. Court of Appeals for
the Ninth Circuit that a Montana federal district court erred when it ruled the
man's lawsuit was filed too late. The Montana district court will decide Jack
McFarland's claims that he owns an easement in a National Park Service (NPS)
road and the NPS arbitrarily denied his request for a permit for winter access
to his land. In July 2003, the district court had held that a 1975 snowmobile
ban and a 1976 closure of a road to the public put McFarland on notice of the
NPS's adverse claim.
"From 1910 until 1999, the National Park Service knew it could not deny Mr.
McFarland access to his Glacier National Park property; then, the Clinton
Administration decided to take his property," said William Perry Pendley of
Mountain States Legal Foundation, which represents McFarland. "Mr. McFarland's
deed, the act creating Glacier National Park, and the long-standing policy of
the National Park Service prove Mr. McFarland is entitled to year-round access
to his property. We believe the court will agree."
In the late 1800's, land that is now Glacier National Park in northwest Montana
was settled under the Homestead Act. In 1910, Congress created Glacier National
Park, but included guaranteed access rights for those with homesteads inside the
new park. Patents issued to the homesteaders also contained access guarantees.
In recognition of those rights, for decades, homeowners in Glacier National Park
had year-round access to their land. Even after the park closed to the general
public, homeowners plowed the roads that accessed their property and went to and
from as they pleased.
In 1985, the NPS published a management plan in which it recognized that the
federal law establishing Glacier National Park barred it from denying the access
rights of local property owners, including their right to use, year-around,
roads that allowed access to their private property. One of those roads, Glacier
Route 7, which was built in 1901 and runs north from West Glacier past
Polebridge Ranger Station, is the route by which Mr. McFarland accesses his
property. However, in 1999, the NPS announced, in an e-mail to Mr. McFarland,
that he would no longer be able to travel to his property after the road north
of the Polebridge Ranger Station was closed to the general public. In 2000, Mr.
McFarland's request for a special use permit to use the road in the winter was
denied; he filed his lawsuit in February 2000.
Scores of Glacier National Park in holders will be affected by this case.
Mountain States Legal Foundation is a nonprofit, public interest law firm
dedicated to individual liberty, the right to own and use property, limited and
ethical government, and the free enterprise system. Its offices are in the
Denver, Colorado, metropolitan area.
Copyright - Mountain States Legal Foundation 1999
2596 South Lewis Way
Lakewood, Colorado 80227
======================================================
MONTANA LANDOWNER LOSES IN PARK ROAD ACCESS
CASE
November 22, 2006 - For Immediate Release
Contact: William Perry Pendley
http://www.mountainstateslegal.org/press_releases.cfm?pressreleaseid=607
November 17, 2006 – DENVER, CO. A Montana landowner today suffered
defeat when a Montana federal district court rejected his claim that
he has a right to year-round motorized access to his Glacier
National Park home. Jack McFarland had argued that the National Park
Service (NPS) may not deny him access to his property inside the
park because he owns an easement by necessity to his land. The
district court ruled that, while the doctrine of easement by
necessity applies to the NPS, Mr. McFarland’s claim for an easement
of necessity was defeated because he could access his home on foot,
skis, snowshoes, or horseback. Moreover, ruled the court, motorized
access was not permitted because it would disturb wildlife. Today’s
decision follow both an October 2005 ruling by the U.S. Court of
Appeals for the Ninth Circuit that the district court erred when it
ruled, in July 2003, that Mr. McFarland’s lawsuit was filed too late
and later briefing in the case.
“We are pleased the district court ruled that the doctrine of
easement by necessity applies to the United States,” said William
Perry Pendley of Mountain States Legal Foundation, which represents
Mr. McFarland. “We are disappointed, however, that the court held
that the McFarland family could access its property in the dead of
winter, only by non-motorized means.”
In the late 1800’s, land that is now Glacier National Park in
northwest Montana was settled under the Homestead Act. In 1910,
Congress created Glacier National Park, but included guaranteed
access rights for those with homesteads inside the new park. Patents
issued to the homesteaders also contained access guarantees. In
recognition of those rights, for decades, homeowners in Glacier
National Park had year-round access to their land. Even after the
park closed to the general public, homeowners plowed the roads that
accessed their property and went to and from as they pleased.
In 1985, the NPS published a management plan in which it recognized
that the federal law establishing Glacier National Park barred it
from denying the access rights of local property owners, including
their right to use, year-around, roads that allowed access to their
private property. One of those roads, Glacier Route 7, which was
built in 1901 and runs north from West Glacier past Polebridge
Ranger Station, is the route by which Mr. McFarland accesses his
property. However, in 1999, the NPS announced, in an e-mail to Mr.
McFarland, that he would no longer be able to travel to his property
after the road north of the Polebridge Ranger Station was closed to
the general public. In 2000, Mr. McFarland’s request for a special
use permit to use the road in the winter was denied; he filed his
lawsuit in February 2000.
Scores of Glacier National Park in holders will be affected by this
case.
===============================================
LOCAL LANDOWNERS FILE FINAL BRIEF ON HEATHLY FOREST PLAN
December 21, 2006 - For Immediate Release
Contact: William Perry Pendley
http://www.mountainstateslegal.org/press_releases.cfm?pressreleaseid=618
DENVER, CO. Montana property owners filed final legal documents
today urging a Montana federal district court to dismiss a lawsuit
by two environmental groups challenging a healthy forest initiative
proposed by the U.S. Forest Service south of Big Timber. State
Senator Jeff Essmann leads the group, which includes the Boulder
Watershed Association, the Clydehurst Christian Ranch, and Donald A.
Bray. All were allowed to intervene to defend the plan by the Forest
Service to reduce the likelihood as well as the severity of forest
fires along the Boulder River corridor in the Gallatin National
Forest. In past fire-related evacuations, the Boulder River Road has
become highly congested resulting in huge delays in evacuating
residents and recreationists as well as delaying firefighters’
deployment to fire lines. Earlier, when the environmental groups
failed to meet the deadline for filing their final brief, Senator
Essmann moved to strike their brief.
“The brief we filed today is incredibly short because of the total
absence of substance in the material filed by the environmental
groups,” said William Perry Pendley of Mountain States Legal
Foundation, which represents the group. “The arguments they raised
are totally without merit and the facts to which they cite are not
facts at all but empty hyperbole.”
After consultations with adjacent private homeowners, the local
watershed association, and State, county and local officials and
groups, the Gallatin National Forest developed the Main Boulder
Fuels Reduction Project along Boulder River Road south of Big
Timber, Montana. The Project area includes a narrow strip of
non-wilderness land 1/2 mile wide and 24 miles long that projects
into the Absaroka-Beartooth Wilderness Area. The Boulder River
corridor is served by a single, in some places one-lane, dirt road.
The project would reduce fuel loads by: thinning large-diameter
green conifers, selectively harvesting insect- or disease-damaged
conifers, cutting small-diameter conifers, slashing trees
encroaching into meadows or aspen stands, prescribed burning in
meadows and the under story of treated stands, and piling and
removing or burning downed woody debris. The plan would reduce the
chances of accidental ignition, fire intensity, and rate of spread.
Meanwhile, the Boulder Watershed Association is working with
landowners to conduct similar fuels reduction projects on private
lands.
On April 24, 2006, after unsuccessful administrative appeals, two
environmental groups sued the Forest Service in Montana federal
district court alleging violations of several environmental and
natural resource statutes, including the National Environmental
Policy Act (NEPA), National Forest Management Act, and Endangered
Species Act.
Mountain States Legal Foundation is a nonprofit, public interest law
firm dedicated to individual liberty, the right to own and use
property, limited and ethical government, and the free enterprise
system. Its offices are in the Denver, Colorado, metropolitan area.
Alliance for Wild Rockies v. Kimbell, No. 06cv063 (D.Mont.)
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