Subject: Durfee Hills as part of a land trade Bullwhacker Access alternative
From: Kathryn QannaYahu <>
Date: 1/20/2015 12:51 PM

To BLM State Director Jamie Connell, District Manager Stan Benes and Lewistown Field Manager Geoff Beyersdorf,

The BLM published a press release on September 26, 2014, concerning the BLM starting the process to restore access to the Bullwhacker, with contact information, purpose and 3 scoping meetings at the beginning of Dec. It also stated, "A proposed land exchange to restore access was considered, but was determined to be not in the best interest of the American people who have entrusted the BLM to manage their public lands for them. " Then on Dec. 24, 2014 an additional press release was submitted for a scoping meeting in Billings on Jan. 15, 2015, with much the same information and the same statement, "A proposed land exchange to restore access was considered but was determined to be not in the best interest of the American people who have entrusted the BLM to manage their public lands for them."

Yet, at that recent Billings meeting another alternative was presented - a land trade with the Wilks, bringing the Durfees back into the discussion. The information is not just based on the article, I received a number of calls from those that attended the meeting, as I could not attend (I have a multiple impact concussion).

As one of a number of conservation hunters that had been in the Durfees and collected documentation to submit to the BLM, I took photographs and video footage of the vegetative destruction and ground disturbance, which was significant. Additionally, from a number of sources, some including agencies, I have had confirmation that not only was there encroachment, but that some of the encroachment was as a number of us had documented with GPS - in the several hundred foot range, and there was a substantial length of the fencing involved in the encroachment. This would indicate a complexity of the case that would preclude it from being easily or quickly dismissed. Since a hunter received a trespass violation citation and fine for cutting off one small branch to set up a tent in the Durfees, then surely these multiple egregious trespasses will warrant a justifiable response from the BLM on behalf of the Public and the Public Trust.

Per the following, I do not see that you can add a Durfee Hills Wilks land trade to the Bullwhacker Access process as an alternative.

  1. According to communications with both BLM Josh Alexander (Cadastral) and Stan Benes, the BLM Durfee Hills is still under investigation for the trespass violations incurred by the Wilks fencing as reported and documented by a number of the hunting public, including myself. As a result, the survey has not been submitted to the Federal Register yet, which has a 30 day review process.
  2. H-9232-1 Realty Trespass Abatement, Chapter IX, IX-3 (page) states: "3. Trespass Resolution. Trespass may be resolved by terminating the use, settling of trespass liability and legalizing the use under land use authorization or transferring the land in trespass from public ownership. Termination of the trespass may be accomplished by informal or formal administrative action, by citation under Title 43 CFR 9262, or by civil or criminal action in the courts (see Chapter V. Realty Trespass Resolution). By regulation, a land use authorization or disposal of public lands (i.e., sale or exchange) may not be accomplished until the trespass is resolved. In practice, the trespass liability may be resolved and authorized use or land disposal action proceed concurrently."
  3. Chapter V. Realty Trespass Resolution. "A trespass is resolved when the unauthorized activity is terminated, settlement of trespass liabilities are agreed to by the Bureau and the trespasser or established by court order, liabilities have been paid, improvements removed, the land rehabilitated and stabilized, and the case closed."
  4. Chapter II (2), section A. Employee Responsibilities. "1. a. Knowing how to report, and reporting, incidents of trespass or suspected trespass observed during the performance of assigned duties or functions. For the purpose of reporting incidents of trespass, employees shall record all occupancy, use, and development as if it is unauthorized, pending a determination that the use, occupancy, or development has been authorized by the Bureau (DM 600.4.1)."
  5. Chapter IV. Realty Trespass Case Investigation, Documentation, and Processing. "The investigation and documentation of a realty trespass case begins with discovery and recordation of suspected unauthorized use, occupancy, or development of the public lands. Accurate and complete investigation and documentation of the trespass resolution. Any given trespass may be subject to judicial or Interior Board of Land Appeals (IBLA) review in which BLM employees may be required to testify; therefore, it is essential that a complete and factual record be established and maintained. The purpose of investigation is to determine what happened and who is responsible; whereas, documentation provides a written record of the trespass facts. Case processing involves all Bureau action steps from discovery to case closure." That chapter lists all the steps of the investigation, which include, if necessary, a cadastral survey, which thankfully took place.
  6. As there is significant and broad multiple trespass involved in the Durfee Hills, which includes vegetative materials (trees and such), which according to Chapter VIII, Section 3. states, "Range, Forestry, and Mineral Specialists. The use, destruction, or disposition of mineral and vegetative materials, including timber, without appropriate authorization, also constitutes trespass. Where unauthorized activities involve such resources, coordinate resolution efforts accordingly. The value and damages for mineral and vegetative materials used, destroyed, or disposed of will be recovered under trespass regulations appropriate to the unauthorized vegetative or mineral use, destruction, or disposal." Additionally, as stated in chapter V above, the trespass is not resolved until certain conditions are met, such as land rehabilitation. Chapter VII, Section J. states, "Rehabilitation/stabilization liability includes all costs associated with restoring the trespass lands to their previous condition (i.e., landform and vegetative cover) or stabilizing the land to allow natural recover to occur. Rehabilitation/stabilization liability also includes all costs associated with planning for and monitoring restoration/stabilization results.... 1. Long-term monitoring may be required where revegetation, stabilization, and long-term health hazards are involved... 3. ... The mere act of initially performing rehabilitation/stabilization work (e.g., seeding or planting) does not necessarily fulfill the trespasser's rehabilitation/stabilization liability. Several treatments may be required before success is achieved and an acceptable vegetative stand is established. The case file is not closed nor is the trespasser relieved of rehabilitation/stabilization liability until successful rehabilitation/stabilization has been achieved."
If I am in error in understanding the situation and BLM regulations, please clarify the situation and the regulations applicable so that I may better understand. If there is any other information that is pertinent to understanding this situation better, please let me know as I desire to be one of those informed and educated members of the public that can support the BLM in your administration of our Public Trust. If I am correct in this understanding of the regulations, would it then not be prudent to inform the Public that this particular land trade is off the table, so that it does not muddy the process and waste valuable time and energy that could be better directed otherwise?

Thank you,
Kathryn QannaYahu
513 1/2 W. Curtiss St.
Bozeman, MT 59715