It was before 5 a.m. in mid-November 2011 when Bobby Smith awoke. While his dad and brother slept, Smith, 35 and a brawny 6'2" with sleeve tattoos and pierced ears, pulled a knit cap over his buzzed head before going to the kitchen for coffee. If anyone were getting an elk, today would be the day. For the past week, storms had slammed the east side of the Continental Divide, blanketing the ground in up to two feet of snow.
They'd be hunting on a friend's ranch just outside of Toston, in Broadwater County, a property spanning hilly, sparsely timbered wilderness just below the Big Belt mountain range and touching public land.
Smith was expecting a good hunt. His friend who owns the ranch near Toston, Robby Dundas, spoke of "tons of elk running from the mountains and grouping together on state land next to his."
When they got there, it was better than they imagined. Some 200 elk mingled on the public land, only a short distance from the fence line.
But the elk were on an island of sorts. The bulls and cows stood on state trust land leased by media mogul Ted Turner. The land was available for hunting, but it's surrounded by private property on all sides, with no public road for access. If the elk didn't cross the fence at the corner, the Smiths couldn't cross the fence to go get them. Even though Dundas's property touched corners with the state land and even though, as the property owner, he'd given permission to hunt, jumping over that corner fence post would mean trespassing on Ted Turner's 22,000-acre Bar None Ranch.
Corner-crossing is a legal gray area in Montana. There's no law on the books that says it's specifically illegal, but Montana Fish, Wildlife and Parks and the Montana Department of Natural Resources and Conservation say it's forbidden.
Montana has about 5.1 million acres, or nearly 8,000 square miles, of school trust lands. But of those acres, about 1.3 million are what the state calls "landlocked," meaning there is no public route, road or navigable waterway to access the property. The only way to get there is by asking one of the surrounding landowners for permission to cross. Only a landowner that shares a property edgenot a cornercan grant access. Not even the state government can access it without approval.
Many hunters like Smith say that in the past, good hunter-landowner relations made it possible for people to hunt on many of the locked parcels. But Smith fears that the gentrification of the West, and all the new buyers who come with it, will put an end to that.
"People are comin' from all over," he says. "East or west, they're coming to Montana. Pretty soon we'll be like all those other big cities, with problems like Colorado, where tons got bought up and people can't get to them."
Congress passed the Enabling Act in 1889, allowing Montana, along with North Dakota, South Dakota and Washington, to join the Union. It also granted the states federal land to generate revenue for public school systems. Montana generally received two parcels in every township, land it has leased to ranchers, miners, timber companies and hunting guides. The acreage has fluctuated through the years due to land sales and acquisitions. Today, the total stands at 5,150,997 acres. In fiscal year 2010, agricultural and grazing leases on the state trust lands brought in nearly $18 million.
According to Montana DNRC Administrator Shawn Thomas, when those lands were originally granted, public access wasn't an issue; they were given to the state to make money, not for public recreation. But that changed about 20 years ago. In 1991, the Montana Legislature added a $2 fee to hunting and fishing licenses that granted Montanans access to state trust lands.
"What you're paying for is the right to be able to recreate on that land," Thomas says, "but you have to be able to get there."
Getting there has to be by public road or navigable waterway. Under state law, a landowner can't close a state or county road if it goes through their property, regardless of how old it is. They can only claim ownership if the road is abandoned.
That's exactly what happened to the state trust land touching corners with Robby Dundas's property. When his father, George, died, he left a large portion of his land to Robby's sister. The Burlington Railroad Company had a line that went through her property and across state trust land. When the company moved the railroad, the old line was abandoned. The government didn't want it, so the section of railroad became hers. After she sold the property to Ted Turner, he had a gate built and closed it to the public.
Today, fewer than 100 yards separate the gate from a section of state trust land, but only Turner, his workers and his hunting clients can drive onto it. Turner also allows state agencies to pass through, but anyone else must walk for several miles up Sixteen Mile Creek if they want to get onto that section.
Turner's Bar None Ranch has grazing rights and outfitting rights to the trust land it borders. Turner also owns the Montana Hunting Company, an outfitting group that charges $14,000 per elk for a hunting expedition on the trust land.
Bobby Smith says that's not fair. "Montanans pay taxes on that land and a whole lot of others, and we can't even use them."
An infinitely small point
Tony Schoonen, of Ramsay, has worked to change that. He sits on the board of directors for the Public Land/Water Access Association and is president of the Montana Coalition for Stream Access. He and Jack Atcheson, a prominent hunting guide based in Butte, were behind the effort to get the Montana Legislature to pass the $2 access fee in 1991.
Before the fee was passed, lessees essentially controlled public lands as if they owned them outright. That meant not only grazing or growing whatever they pleased but also controlling who could or couldn't access it. Before Schoonen and Atcheson raised the issue, the agriculturally sympathetic legislature was in no hurry to change the law.
"We had to go all over the state to these public meetings," Schoonen recalls. "We were outnumbered 100-to-1, but we got it because it was public land."
But the law didn't solve the corner-crossing problem.
According to Beaverhead County Attorney Jed Fitch, a corner can be an infinitely small point on the ground. The land Smith's hunting party was on isn't in Beaverhead County, but Fitch's office has dealt with Turner's lawyers before.
"Even if you were the width of a fly and you crossed that point, you'd still be trespassing into your neighbor's property," Fitch says.
But to go to court, the landowner would have to prove someone trespassed, which, Fitch says, is difficult to do. For a landowner to win a case, there'd have to be evidence, a witness, footprints or a photo.
When Smith's hunting party approached Turner's fence, they were met by ranch staffers on horseback. "The horse patrol on [Turner's] land said, 'No, you can't cross,'" Smith remembers. "Then we said, 'Well, we'll go to the corner.' They said, 'No, that'd be corner-crossing and that'd be illegal."
Corner-crossing wouldn't have been the crime; it would have been trespassing. If Turner's attorneys brought the case to court and won, it would have been the first of its kind.
"That's what everyone's afraid of," Smith says. "These rich landowners have all the money and a ton of attorneys. If they go to court and win, it becomes precedent."
In 2005, Rep. Paul Clark, of Trout Creek, sponsored a bill aimed at making stranded land more accessible. House Bill 510 would've clarified corner-crossing as a legal means of access. The Montana Stockgrowers Association spoke out against the bill, arguing that it violated landowners' right to privacy. The bill died.
Ranchers "are scared of anyone crossing onto private property, but we've got laws to take care of that. Every state agency is trying to discourage people by saying [corner-crossing] isn't legal," Schoonen says. "They're trying to protect their main renters, which are ag people."
Schoonen thinks FWP, the Bureau of Land Management and the DNRC are all catering too heavily to their leaseholders, not only in regard to access but also to the rates they pay. Those three agencies take bids at a minimum of $6.12 a month for every mature cow or cow-calf pair to graze on state school trust lands. The going rate for the same animal or pair of animals on private, non-irrigated grazing land was around $20 in 2010.
Schoonen says every case the PLWA has fought so far has been against a new, out-of-state landowner. Many longtime ranching families in Montana are more willing to grant hunting access, a tradition FWP is actively trying to preserve. He says it becomes a taller task every time these ranching families are squeezed out of public lands by new landowners with deep pockets.
"If a local guy is bidding on the same grazing land as somebody like David Letterman or Ted Turner, there's no way they can win," he says. "Those things are happening right now."
A little bit more
Turner's Bar None Ranch is an example of a private landowner profiting off of public land and animals that the public pays for but can't access.
"We're not out to be total jerks," says John Hansen, assistant general manager of Turner Enterprises Inc. He's sympathetic to the criticism. "The way land is viewed has changed in the last 30 years," he says. "When I was young, we hunted a lot of private land. It wasn't this tightly held thing that it is today."
Hansen says running a ranch is more expensive than it's ever been, so a lot of people look to outfitting operations to be profitable. "We've seen the change in the value of hunting," he says. "It's gotten to be more commercialized, so there's an opportunity to make some income where there wasn't before."
In addition to its 153,000 private acres, Turner Enterprises leases 16,600 acres of public land in Montana, 2,760 of which are landlocked. They're working ranches designed to be collectively profitable, with bison as the main source of income. All, except for the Bar None (which is managed for trophy animals), are home to parts of Turner's 50,000-bison herd. Through the Montana Hunting Company, Turner Enterprises offers guided hunting trips on every one.
Landowners "want to protect that hunting," said Hansen. "We just happen to own a little bit more."
Hansen says he's only aware of a couple of trespassing instances on their properties. But to his knowledge, they've never prosecuted anyone for corner-crossing their lands. He says the majority of public lands Turner Enterprises is involved with are open for public access and most of the landlocked parcels wouldn't make good hunting anyway. His company has done land swaps with the DNRC to make some areas more accessible. Additionally, when herds have grown too large, the company has invited the public onto its ranches for cow elk hunts.
But, he believes, it's also important to respect private property rights. The company discourages corner-crossing, citing the stance of state agencies.
DNRC spokesman John Grassy says the state is doing the best it can to balance demands for public access, income for public services and profitability of land lessees, but it's complicated. The state was handed parcels all over Montana that everyone has a stake in. So, like the executor of a will, they're trying to give everyone their fair share, but it's not easy to keep all of them happy.
"The agency understands [wanting access]," Grassy says. "This isn't something we haven't done by design."
So when sportsmen see lands they can't access behind huge ranches, surrounded by barbed wire and no trespassing signs, Grassy knows why they're frustrated. Hansen knows why they're frustrated. Hunters like the Smith family and Robby Dundas know the frustration firsthand. But the state's options are limited. It's trying to open more areas to the public with land swaps, conservation easements and buying acres when the money's there.
"When it's right for the public financially and when it's affordable we'll do it," Grassy says. "Until then, they have to make do with what's out there."