Eds. note: A shortened version of this story appeared on Dec. 27, 2022, on the Courthouse News Service.

MISSOULA, Mont. (CN) — Some say collaboration is the way to solve complicated public land issues. But in Montana’s Crazy Mountains, both collaborators and outsiders are questioning the intent and timing of a proposed public-private land swap.

After the public comment period closed on Dec. 23 for the “East Crazy Inspiration Divide Land Exchange,” the 1,060 comments submitted online appear to show that a majority of the public does not support the exchange as proposed.

The Custer-Gallatin National Forest’s online summary says it would exchange about 4,135 acres of public land for 6,430 acres of private land to consolidate more of the public land in the Crazy Mountains of central Montana. While that sounds like a win for the public, the devil is in the details according to Montana conservationist Andrew Posewitz.

“There are some flaws in this proposal that are fatal to me. The Western Lands Group got everyone so riled up about the benefits of consolidation and increased acreage that no one knew enough to poke at mineral rights and water rights and land values,” Posewitz said. “This group of well-intentioned people got into the room, they put together a proposal they thought was fair. But ultimately, they didn’t have the qualifications to negotiate it and left out a bunch of stuff that really matters.”

While the U.S. Forest Service oversees most of the Crazy Mountains, its management has been complicated by several sections of private land woven among the public land. In the latter 19th century, the federal government gave the sections away to encourage railroads and settlers to move west, ignorant of the public-land headaches that would result more than a century later.

In several parts of the West, current maps look like a checkerboard of public and private land, each section containing 640 acres. But in the Crazy Mountains, it’s more of a chess board where certain moves to consolidate public land might belie the endgame.

The Crazy Mountains was once a remote region visited mainly by a smattering of locals for hiking, hunting and fishing. But in recent decades, as nearby Bozeman has grown in popularity, prosperity and population, new landowners have moved in and barred roads and trails to lock people out of public land, prompting resentment.

In Montana, prescriptive easements are created when the public has regularly used a road or trail across private land for more than five years. A past landowner might have created a prescriptive easement by informally allowing access through his property, but trouble sometimes develops when someone new buys the land without knowing Montana law and closes the route.

The Forest Service is supposed to defend existing public access to its lands. That’s especially important in places like the Crazy Mountains where access is limited to begin with. But starting about five years ago, the Custer-Gallatin National Forest stopped taking the illegal barriers down.

That prompted local hunter Brad Wilson to form Friends of the Crazy Mountains to defend public access. In the meantime, people like Bozeman hunter Rob Gregoire, who tried to travel the roads and trails he’d used before, were cited for trespassing.

Public frustration built to the point that, in 2019, four Montana conservation groups - including Friends of the Crazy Mountains and Backcountry Hunters and Anglers - sued the Forest Service for not protecting prescriptive easements across private land to keep four trails open.

That same year, at the prompting of the Forest Service, the Yellowstone Club and some landowners started developing a plan to consolidate lands in the eastern portion of the Crazy Mountains. Another group of landowners was already working on land swaps along the southern edge of the mountains, most of which were finalized in May 2021.

More than 100 miles from the Crazy Mountains, the Yellowstone Club is a gated community at Big Sky that has catered to the rich and powerful for about two decades, including political heavy-hitters like former vice presidents Dan Quayle and Dick Cheney and former U.S. Representative Jack Kemp.

At first, the Yellowstone Club only wanted more national forest land - about 500 acres - near Big Sky to expand its exclusive ski runs. Custer-Gallatin Forest Supervisor Mary Erickson couldn’t work a land trade that small and asked if the company could help with land issues in the Crazy Mountains in exchange. The Yellowstone Club hired the Western Land Group, a consulting company, to come up with some land exchanges along the east edge of the Crazy Mountains and offered to build a 22-mile trail to replace the four being contested. Then about a year ago, Yellowstone Club owner CrossHarbor Capital Partners bought the Crazy Mountain Ranch, giving it more interest in the Crazy exchange. Yellowstone Club member David Leuschen, former partner at Goldman Sachs, bought his Switchback Ranch in the Crazy Mountains in 2012. Sections from both ranches are part of the trade along the eastern edge.

Posewitz questions all the leverage that the Forest Service gave to the Yellowstone Club. 

“That strikes me as wildly inappropriate,” Posewitz said. “If you separate the Big Sky portion from the Crazies portion - which they should have done to begin with - the Crazies portion would have zero support.”

In July 2021, the Western Land Group submitted their proposal to the Forest Service. The Park County Environmental Council - which had previously participated in other access working groups - then recruited a dozen landowners and conservation advocates to form the Crazy Mountain Access Project to advocate for the Yellowstone Club proposal. Some Montanans were suspicious of the Yellowstone Club’s intentions, and some felt left out of the negotiations, so such advocacy wasn’t easy.

But when the Forest Service finally released its preliminary environmental assessment on Nov. 9, it was noticeably different from the proposal the Access Project members had been shown and had supported.

“We were promoting what the consultants presented to the Forest Service. And then the Forest Service came out with the preliminary EA and hadn’t nailed down any conservation easements and had kind of changed their position on the trail,” Gregoire, an Access Project member, said. “Yeah, I got blindsided.”

In the original proposal, the Forest Service was to place conservation easements on the sections of federal land being transferred to private owners to ensure the land wouldn’t be developed after it was traded. The agency was also supposed to continue to maintain public access along the Sweetgrass Trail, one of the four trails involved in the lawsuit, until the legal questions were worked out.

“Instead, (the conservation easements) was something more aspirational like ‘the Western Land Group is going to figure this out in the future.’ I hoped for something more definitive,” said Erica Lighthiser, Park County Environmental Council representative. “The other thing was the status quo in Sweetgrass was supposed to be maintained. To me, the statement in the EA about the Forest Service not maintaining the Sweetgrass Trail was somewhat inconsistent with what ‘maintaining the status quo’ would look like.”

Forest Service Realty Specialist Anna Ball took over as the land exchange project officer late in the process so she hadn’t been involved in the changes.

“Mary Erickson was reviewing their proposal, and there were a couple of drafts back and forth. I think there are members of (the Access Project) that aren’t landowners. But all the landowners have been in the know,” Ball said.

Nathan Anderson, a fifth-generation owner of the Billy Creek Ranch along the Sweetgrass Trail, has collaborated with the members of the Access Project for several years, but he was aware of the EA changes before they were. Some of the ranchers in the Yellowstone Club proposal are his neighbors.

“This is the proposal that the Forest Service and the landowners have kind of been working on. Somewhere, something got missed — I have to acknowledge that — because people aren’t seeing the same thing. I don’t feel that it was misrepresented, but there was something that was missed there,” Anderson said.

The Sweetgrass Trail is actually a road, not a trail, that travels up into the Crazy Mountains from the eastern lowlands, traversing several alternating sections of private and public land for decades. In 2020, the Friends of the Crazy Mountains met with the Western Land Group to make its own proposal of moving the Sweetgrass Trail about a mile south to get it off private land. The proposal never went anywhere because the Western Land Group said its clients would refuse to accept the proposal without some land swaps. Wilson said the lawsuit is one reason this proposal shouldn’t move ahead just now.

“We need to let litigation play out that’s already involved. They were trying to put the EA out on this new proposal, and they’re trying to shove this through as fast as they can. They put it out during Christmas and hunting season,” Wilson said.

A federal judge ruled against the Friends of the Crazy Mountains plaintiffs this past April, saying that even if the Forest Service historically believed it possessed prescriptive easements on the trails, the agency no longer had a duty to protect them because the easements were never deeded. The groups have appealed to the Ninth Circuit, saying prescriptive easements don’t require deeds.

“We felt like an appeal was appropriate because there was so much in our case that was not addressed,” said John Sullivan of Backcountry Hunters and Anglers.

In addition to the Forest Service reneging on conservation easements and preserving the trail, many point to the lack of information in the preliminary proposal, saying it shows just how rushed the proposal was. Conservationists say much of the proposal doesn’t comply with the law because it allows for the loss of wetlands and elk habitat but doesn’t quantify the loss and doesn’t look at the land value of each parcel. Public land trades are supposed to be equal in value.

Lighthiser agreed, saying that’s why her organization asked for more opportunities for public comment in the future.

“There’s just not enough analysis. It’s preliminary. We don’t have definitive answers on the wetland and the wildlife studies and cultural studies and all these things that are important for the public to make informed comments,” Lighthiser said.

Ball said the Forest Service team would probably be able to address all comments by spring. Then Erickson would make the decision whether to move ahead with the proposal.

“There are only two options here. That isn’t to say there couldn’t be tweaks here and there,” Ball said. “But if we went with the no-action alternative, there would probably be that hard conversation of ‘Is it totally done? Are we done with any sort of proposal? Or is there a different iteration that could be looked at in the future?’ Because we’ve put so much time into this proposal as it is, we would be hard pressed to get a different proposal on the board — it would take time.”

That’s what has some people so desperate to pass the proposal even if it’s problematic: Negotiating a new proposal would be difficult and take more time. Some say that’s worth it to keep rich landowners from using money and political connections to pull a fast one, and some want to wait for the courts to decide whether the public has a right to use the Sweetgrass Trail. But others feel this might be their only chance to pull some parts of the Crazies together.

“We’re supportive of a version of this going forward. We know we only have one shot. This is the moment to engage in the process and ask for as much as we can ask for,” Lighthiser said.