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.