Professional Documents
Culture Documents
GVLT Letter
GVLT Letter
Attorneys
777 East Main Street, Suite 203
PO Box 70
Bozeman, Montana 59771-0070
(406) 404-1728
June 7, 2019
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Although our Clients recognize and respect the value of public trails, and the
many benefits they afford the community, they correctly believe that the same
public community has an inherent duty and responsibility to respect the rights of
the individuals over whose property these trails go through, and/or pass by. It is
because of the public’s breach of their duties that our Firm has been retained to
investigate the public’s misuse of the easements; the efforts, if any, by GVLT and
the County to enforce the restrictions set forth in the easements, and explore
potential remedies for the public’s consistent misuse of the easements which go
through their properties.
I.
Nature of Easements.
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The nonpossessory feature of an easement differentiates it from an
estate in land: the holder of an affirmative easement may only use the
land burdened by the easement; the holder may not occupy and
possess the realty as does an estate owner.
II.
There are several easements at issue, the terms of which have been outlined
in their individual Grant of Trail Easement and Servitude between the “Grantor”
and the Gallatin Valley Land Trust (“Grantee”). These easements, in turn,
connect to and pass through the Open Space of Triple Tree, which has its own
covenants governing the use of that Open Space.
The description of these easements, as well as the recitals which are pertinent to
the current dispute, include:
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a) This easement was entered into on June 12, 2017, by and between
Gene E. Cook, together with his heirs, personal representatives,
successors, and assigns (“Grantor”), and Gallatin Valley Land Trust
(“Grantee”);
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v) §7 - Amendment: If Grantor and Grantee mutually agree, the
location of the Easement may be modified by amending Exhibit
A and this instrument and filing the amendment in the public
records of Gallatin County, Montana, but in no case may any
such amendment diminish, revoke, or terminate the public trail
access provided across the Property to connect with public trail
easements on lands.
(Emphasis added).
a) This easement was entered into on February 15, 2017, by and between
Richard J. Schonberger and Nancy L. Schonberger, Trustees of the
Richard J. and Nancy L. Schonberger Trust, together with their heirs,
personal representatives, successors, and assigns (“Grantor”), and the
Gallatin Valley Land Trust (“Grantee”);
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i) Tract 7 of Certificate of Survey No. 1709, a tract of land in the
NE1/4 and the NW1/4 of Section 29, Township 2 South, Range
6 East, P.M.M., Gallatin County, Montana.
c) The Grant of Trail Easement and Servitude, No. 2583105 lays out
identical Recitals as the Grant of Trail Easement and Servitude, No.
2583104, and as such, we reincorporate the foregoing discussion by
reference.
These easements, in turn, join Open Apace in the Triple Tree Ranch, which
is governed by a separate set of covenants which set forth the permissible uses of
the Triple Tree property. Notably, the Triple Tree covenants do NOT expressly list
as permitted uses of the open space, and the trails within the open space, the use of
bikes, which are allowed on the easements that cross through the properties to the
south of Triple Tree.
III.
Since the opening of the trails last fall, our Clients have experienced a long
list of problems stemming from the public’s disregard for the rules governing the
use of the easements as set forth in the granting documents. As explained, these
acts constitute a trespass. Many of these same acts constitute a nuisance. The
problems include, but are not limited to, the following:
1. Trespassing.
One of the most prominent and concerning violations is the frequent (often
daily) incidents of trespass onto our Clients’ properties by the public. As stated in
§10(d) of the terms and conditions of the Grant of Trail Easement and Servitude, it
is the Grantee’s responsibility to “provide for privacy for Grantor and neighboring
property owners and to mitigate trespass or trail-cutting issues.” It has become
clear that GVLT, the Grantee, has not made good on this recital, which has in turn
created numerous problems for our Clients -- not just for their privacy, but for their
safety, as well.
Section 3 of the terms and conditions of the easements make clear that “the
constructed trail within the Easement corridor shall not exceed five (5.0) feet in
width, with such additional width as is necessary to accommodate and protect cuts
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and fills, provided that the trail shall be constructed in a manner that minimizes
impacts to Grantor’s Property.” While the trail is built within these standards, that
fact becomes moot if the users of the trail, and their pets, decide that they are
entitled to roam freely off trail and onto our Clients’ private properties.
The deviation of the public onto our Clients’ private properties has had, and
continues to have, very real and tangible consequences. Of course, the frequent
off-path foot traffic is detrimental to their quiet enjoyment of their properties, and
their properties’ aesthetics. This trespassing also affects our Clients’ feelings of
privacy and safety, which are inherent in their right to quiet enjoyment of their
properties.
Not only does this trespass disrupt the feelings of privacy which every
homeowner enjoys on their property -- including their home -- it also robs them of
their right to safety -- an issue which is not experienced frequently in
neighborhoods such as Triple Tree and/or Saddle Ridge. In fact, one of our Clients
has witnessed a member of the public, who had illegally entered their property at
night, looking through their window and into their house.
Just recently, a truck full of bikes (5 in number) parked on a Triple Tree cul-
de-sac and all of individuals proceeded to trespass across private property to access
the trails, obviously ignoring the posted trailheads located some distance away.
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2. Dogs Off Leash.
It is not only humans who frequently trespass onto our Clients’ property, it is
also their dogs. This is an issue which has become a frequent nuisance for our
Clients. The rules for the containment of dogs on the Triple Tree and Saddle
Ridge trail easements are clear, and are even stated plainly on the Gallatin Valley
Land Trust’s website: “DOGS ALLOWED OFF LEASH: NO” (emphasis added).
However, the public treats this as less of a rule and more of a suggestion.
Our Clients have had constant issues with uncontrolled dogs wandering onto their
property, not only leaving excrement which the owners rarely clean up (leaving it
to our Clients to clean up after someone else's dog), but also wreaking havoc with
our Clients’ pets. In fact, in September of 2018, an unleashed dog crossed into one
of our Client’s properties where it attacked and killed their cat. This could have
been avoided had the public followed, and the GVLT better enforced, this simple --
yet important -- rule.
3. Bicycles.
Although the use of bicycles is allowed on the trails and within the easement
(outside of Triple Tree), their improper and uncontrolled use has become both a
danger and a nuisance, not only to other members of the public, but also to our
Clients. In fact, this is one of the most often cited complaints. With the advent of
electric bikes and fat tire bikes, coupled with headlights designed for bikes, and
their use on trails after dark and the growing population of the valley, this issue
will only get worse.
There have also been frequent issues with bikers riding through our Clients’
private property, between their houses and out to View Ridge Lane, to avoid
climbing hills. Not only is this a trespass and a nuisance, it has become a very
clear danger.
Earlier this week, I received an email from a client advising that at 10:30 at
night, well past sunset, a group of bikers, equipped with headlights on their bikes
came barreling through the trail (right behind their house) hooting and yelling.
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This was not the first time and other Clients have experienced similar problems.
Of course, overnight use of the trails is barred by the express terms of the
easement.
4. Hours of Use.
As stated, our Clients understand the importance of these trails and their
benefit to the community. However, the public’s enjoyment of these trails cannot
come at the expense of the Grantor’s “quiet enjoyment of [their] property”, as
stated in §6 of the Grant of Trail Easement and Servitude.
The lack of restriction has become an unreasonable nuisance for our Clients
and the lack of any enforcement violates the rules outlined in §§6 and 10(a) of the
easement.
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5. Littering
It is not just abandoned dog excrement which has become an issue. Both on
our Clients’ private property, and within the public easement, the disposal of trash
of all types has become an issue and is in violation of §10(a) of the Grant of Trail
Easement and Servitude, which states that “ … littering … is prohibited.”
This indifference to the private property of our Clients, and the natural
landscape of the community, not only goes against §10(a) of the Grant of Trail
Easement and Servitude, common courtesy, ethics, and part of the GVLT’s
mission statement, which is to “... conserve open space on a scale that maintains
the agricultural heritage, healthy and abundant wildlife habitats, clean flowing
waters, and the scenic beauty of Montana’s greater Yellowstone region” (emphasis
added), but it is also against Montana law (M.C.A. §7-5-2109).
Although there may be signs which state the prohibition of littering on both
private property and within the easement, these signs are few and far between.
Under §5 of the terms and conditions of the easement, it is the obligation of GVLT
and the County to control and maintain these signs.
6. Nuisance.
See also, Simpkins v. Speck, 2019 Mont. 120, ¶ 15, ___ P.3d ___, ___ Mont.
___ (May28, 2019).
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(1) A public nuisance is one which affects, at the same time, an entire
community or neighborhood or any considerable number of persons,
although the extent of the annoyance or damage inflicted upon
individuals may be unequal.
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An injunction is an equitable remedy," and it must be
"fashioned according to the circumstances of a particular case." Talley
v. Flathead Valley Cmty. Coll., 259 Mont. 479, 491, 857 P.2d 701,
708 (1993); see also City of New York v. Mickalis Pawn Shop, LLC,
645 F.3d 114, 144 (2d Cir. 2011) ("Although a district court has a
wide range of discretion in framing an injunction in terms it deems
reasonable to prevent wrongful conduct, it is nonetheless the essence
of equity jurisdiction that a court [**11] is only empowered to grant
relief no broader than necessary to cure the effects of the harm caused
by the violation." (internal quotations omitted)). "The primary
objection to broad injunctive orders is the fear that they will impose
unnecessary restraints on individual freedom and prohibit lawful and
socially desirable activity." 11A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure, § 2955,
370 (3d ed. 2013); see also 42 Am. Jur. 2d Injunctions § 261 ("An
injunction should not . . . impose unnecessary burdens on lawful
activity."). Thus, because injunctive relief must be "fashioned
according to the circumstances of a particular case," an overbroad
injunction is an abuse of discretion. See Talley, 259 Mont. at 491, 857
P.2d at 708.
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Id., ¶¶ 19, 20 (emphasis added)
The misuse and disrespect of the Painted Hills, Triple Tree and Saddle Ridge
trail easements constitutes both public and private nuisances for which an
injunction is a proper remedy, where, as here, the injurious activities continue. To
that end, the Court is authorized, and we will ask for, an injunction to “eliminate
the injurious features” of the nuisance.
The foregoing lists many, but not all, of the problems experienced by our
Clients and others because of the misuse of the trail easements and the lack of any
enforcement of the restrictions in the easements. Remedies for misuse of an
easement include injunctions, damges, and, where appropriate, termination of the
easement. Before seeking those remedies, however, our Clients note that other
communities, faced with similar problems, have developed strategies to address
and mitigate these problems and these strategies are discussed below.
IV.
Evidence of Enforcement.
While GVLT points to efforts to educate, with representations that it will try
and do more, the evidence of that education is, likewise, sorely lacking. For
example, when looking at the GVLT’s website, there is a web page, titled “Share
and Protect The Trails,” under which is found “Trail Etiquette.” However, this
page was not readily discoverable on the web site, as there is no heading on the
web page, or on any pull downs, that calls out “Trail Etiquette.” While it is located
on the page titled “Trail Map,” a better job of calling it out on your page seems
prudent.
Moreover, while the page talks about “trail etiquette,” nowhere did I see any
of the restrictions in the actual easements discussed, beyond “[r]espect private
property.” The comments about dogs, whether on or off leash, are very general as
is the discussion on picking up after one’s dogs and litter.
Not a word is said about the prohibition on use of the trails after dark,
reporting misuse of the trails or violations of the easements, let alone enforcement
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of the restrictions, although the web page does ask for people to “report”
maintenance needs and volunteer to maintain the trails.
V.
How Other Communities and Agencies Have Addressed Misuse.
Potential Mitigation Measures.
Our research makes clear that the problems experienced by our Clients are
not unique. To that end, the holders of public trail easements in other
communities, recognizing their obligations to enforce restrictions in the easements
and respecting the surrounding landowners’ rights in their properties, have
developed strategies to mitigate the impact on neighboring properties.
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A person who violates this ordinance three (3) or more times in the
space of one (1) year shall be subject to imprisonment for no more
than ninety days per offense … [e]ach day a violation of this
ordinance continues shall constitute a separate offense.”
The office of Montana State Parks has created an extremely thorough guide
that lays out goals and strategies which are “intended as recommendation[s] to
provide guidance for trail managing agencies and trail-related organizations.” The
government agency successfully addresses potential remedies for many of the
issues which are being faced by Triple Tree, Saddle Ranch, Gallatin County and
the GVLT. In fact, the main goal of this report is to suggest ways to create a
system in which the misuse and violations never happen at all.
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control, and permitted uses” as well as comment boxes. They also
state that “Trail managing agencies should develop systematic
methods to track areas which have high levels of behavior-related
complaints and conflicts, and target them for additional educational
materials.”
- Examine Current Penalties: The Montana State Parks suggest making sure
that the current penalties in place provide adequate disincentive for potential
violators.
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3. Pennsylvania Land Trust Association.
The Pennsylvania Land Trust Association has put out a guide for those looking
to create a new trail easement. This guide covers almost every aspect of the
formation of a new trail easement, including those which may be of use to the
Grantor of that new public easement (people such as our Clients). Although this
guide outlines the creation of a new easement, it covers common sense rules which
would be practical on any public trail, and could avoid the need for the
extinguishment of this easement:
- Enforcing Standards: “Both the owner and the holder have the right
to enforce the standards laid out in the easement. A person who
leaves the designated easement area is a trespasser, as is anyone who
is using the area for other than permitted uses. The owners have all of
the rights to deal with trespassers which are available under applicable
law and they can also call upon the holder to assist in maintaining
responsible use in accordance with the terms of the easement
document. Responsible user groups, such as hiking, cycling or
equestrian associations, can also be called upon to assist in enforcing
the standards.”
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4. Mad River Path
- Fencing, Barriers and Signs: “Grantee, with Grantors’ prior written consent,
may erect and maintain fencing and barriers within the Easement Area as
may be reasonably necessary to prevent access to the Path by motor vehicles
and/or to discourage pets from straying from the Path onto Grantors’ or
other adjacent landowners properties. Grantee, with Grantors’ prior written
consent, shall have the right to erect reasonable signs, blazing or other
markings within the Easement Area to inform the public of the Path location
or other Path features.”
- “3. Grantee shall enforce all applicable city ordinances and state laws
within the trail easements, especially Chapter 23.23.100 Littering,
Chapter 9.34 Panhandling, and M.C.A. 45-8-101 Conduct Disruptive
to Public Order.”
Red Wind Point Open Space and Trails Board adopted a management plan,
prior to its inception, which addresses many of the relevant issues in this case.
Located in Pitkin County, this trail system adopts the Pitkin County rules and
regulations which were stated above; additionally, they have added some of their
own, which are as follows:
- 5.3 Dogs: “Dogs are restricted to the trail on the Red Wind Point trail. All
dogs must be leashed and dog waste must be removed. OST regulations
regarding dogs will be posted on the trail and will be consistent with Pitkin
County Open Space and Trails Title 12 regulations in the Pitkin County
Code. OST rangers will patrol this area to ensure compliance. If leash law
enforcement proves problematic, a complete prohibition of dogs will be
considered.”
- 6.2 Recreational Resource Management: “Refine public access and open the
trail from April 30 - Dec. 1 along the Red Wind Point Trail to the public and
patrol the trail to ensure there is no trespassing onto adjacent private
property, no access into the closure area, and that dogs remain on leash.”
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7. Riverside County Regional Park
The Riverside County Regional Park and Open-Space District has created a
Comprehensive Trails Plan which suggests multiple community-based trail patrol
programs that help enforce the rules and regulations that are so important to the
safe and responsible use of these public trail systems:
- “3. Trail Ranger Program: The County may consider the use of Trail
Rangers as a means to encourage trail etiquette, work with law
enforcement to improve safety conditions, and ensure areas where
persistent issues arise are addressed in an efficient manner.”
- “4. Youth Engagement: The County may enter into agreements with
partners in the area to provide area youth, especially youth in areas
with deficient access to the outdoors with programs to expose children
to the County’s natural areas and trails.”
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8. County of Los Angeles
The County of Los Angeles has created a Trails Manual which covers the
rules and regulations for their vast network of trails. Although not all of the trails
in Los Angeles County are on easements created by private donations, many of
them are, and the recommendations within this trail manual still apply:
- 4.3.17 Security
The Catamount Trail, a backcountry ski trail which crosses much of the
length of Vermont, is run by the Catamount Trail Association (“CTA”), who is the
Grantee on many private trail easements across the state. Because of this, they
have prepared a Trail Easement Stewardship Plan which outlines the
responsibilities that come with the “stewardship, monitoring, and enforcement” of
these easements. There are multiple sections in this stewardship plan which could
be helpful to the Triple Tree and Saddle Ridge trail easements:
- Easement Monitoring:
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corridors under the supervision of the Trail Protection Director.
In the event of a vacant trail chief position, the Trail Protection
Director will designate a trail monitor or do the monitoring
him/herself.”
- Easement Enforcement:
Aside from the express statutory prohibitions on trespass and nuisance, the
easements themselves have express restrictions on the use of the trails. It is clear
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that enforcement of those restrictions, or the present lack of meaningful
enforcement of those restrictions, is at the root of the present conflict. As the
holder of the easement, it is incumbent upon GVLT and the County to develop
effective enforcement procedures, including the hiring of monitors who are vested
with authority to take meaningful action when a violation occurs. Examples from
other communities are set forth above.
VI.
Conclusion.
As we have stated numerous times in this letter, our Clients fully recognize
and appreciate the significant benefits which these trail easements provide to the
community of Gallatin County, and are grateful to have such a major role in their
existence. They want to see that these trails continue to bring enjoyment and have
no desire to seek relief in the Courts.
This letter has outlined the specific ways in which the public has misused
these easements. It has also outlined specific ways in which the GVLT and our
community -- by following the path of other communities -- can resolve these
issues and create a better environment; not just for the benefit of our Clients and
the surrounding private landowners, but for the entirety of the Gallatin Valley
community as a whole.
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With that being said, our Clients retain the right to the quiet enjoyment of
their properties, without having to worry about the safety, privacy, and security of
themselves, their family, their pets, or their land. The remedies for misuse of an
easement include damages, injunctions and, where appropriate, termination of the
easement. Our Clients’ hope is to avoid the latter option and come to a reasonable
agreement in which both parties can come out the other side whole. To that end,
we ask for the opportunity to discuss this letter and (1) mechanisms to
meaningfully enforce the terms, conditions and restrictions of the easements; and
(2) solutions to the unique issue associated with the location of the trail in several
locations, including the relocation of the trail in those areas.
Sincerely,
Brian K. Gallik
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