Montana ranchers win easement
case against U.S. Forest Service

By Don Bowman
The Nevada Rancher

      An attorney said that ranchers should challenge unfair decisions by the U.S. Forest Service.
      Mountain States Legal Foundation president and chief legal officer Perry Pendley represented Montana ranchers who prevailed in federal court over an easement that the Forest Service said did not belong them.
      It was a speedy trial, because only two days after hearing arguments on Dec. 10, 2003, Montana Federal District Court ruled in favor of Stephen and Jean Roth of Darby, Mont.
      The court held that the Roths own an easement in the Bitterroot National Forest, created in 1897, and the Selway-Bitterroot Wilderness Area, created in 1964, for Tamarack Lake Dam and Reservoir, and four ditches that deliver water to the Roths’ ranch.
      The Roths’ lawsuit was filed by the Mountain States Legal Foundation.
      According to the foundation’s website, in 1998 the Roths purchased 750 acres in Ravalli County. In 1990 they bought 50 adjacent acres. Both purchases included water rights to operate their Trapper Creek Ranch, including Tamarack Lake Dam and Reservoir, and four ditches.
      The Roths asserted that, under congressional acts adopted in 1866 and 1891, they held easements for these facilities, which the Forest Service could not prevent them from using. When the Forest Service denied them access, the Roths sued the United States under the Quiet Title Act.
      Pendley told The Nevada Rancher that the judge made a great decision and rightfully so.
      "The federal government came in with a pitiful case and probably shouldn’t have filed," Pendley said. The problem stemmed from federal agencies "trying to push the envelope."
      He said that the Forest Service should stop objecting to people’s rights, even though they might be in a wilderness area.
      According to Pendley’s article on the foundation website, the Roths argued that, once their predecessors had constructed the Tamarack Lake Dam and Reservoir on federal lands, pursuant to the Act of 1891, the easement authorized by Congress vested automatically.
      The United States countered that those rights did not vest automatically; the Secretary of the Interior must have approved that easement. The court rejected that argument because it was at odds with the position espoused by the U.S. Department of the Interior beginning in 1910, a position embraced twice by the U.S. Supreme Court.
      The court also concluded that to accept the United States’ new position would be to condemn the 1891 Act of Congress to "a sort of legal purgatory."
      Pendley said that the U.S. Forest Service had tried to force the Roths to take out a permit to access their ditches.
      In the suit, the United States claimed that that the 12-year statute of limitations for filing a Quiet Title Act lawsuit had expired because the Forest Service had always disputed their claim. The court rejected the argument pointing to a 1998 document in which the Forest Service admitted just the opposite: the Roths had an easement.
      Pendley said that despite the specific language of titles and patents, even patents signed by Presidents of the United States, federal agencies insist that landowners have no rights and must apply for a revocable license to access their property or sue, he said.
      Pendley said that the Roths’ ditches had protected rights-of-way under both the 1866 Act and the 1891 Act. He said that in 1975, a Forest Service district ranger wrote a review of old records that revealed ditches "were in place prior to the creation of the Bitterroot National."
      Pendley said that the Forest Service knew it had acted adversely to the Roths’ rights, and that the Forest Service knew the Roths’ rights to the dam and reservoir had vested automatically because the United States had taken that position for nearly 100 years. The Forest Service knew the Roths’ ditch rights predated the Bitterroot; it admitted that in 1975, he said.
      Pendley said that ranchers need to know that they should question when federal officials tell them they do not have an easement. He said that he wondered how many people have given into the federal claims when they should not.
      Pendley said he did not know if the federal government would appeal the decision.