Glacier National Park Information

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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
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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.


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William Perry Pendley is president and chief legal officer of the Mountain States Legal Foundation.

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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://news.heartland.org/newspaper-article/2004/02/01/glacier-national-park-ruling-voids-property-rights

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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.
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William Perry Pendley is president and chief legal officer of the Mountain States Legal Foundation.

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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

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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.

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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 23, 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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