Glacier National Park Ruling Voids Property Rights

Published February 1, 2004

Jack McFarland owns property, which he bought from his grandmother, in Glacier National Park.

Like his grandmother and the man from whom she bought the land, who staked his homestead prior to Glacier National Park’s creation and received his patent from President Woodrow Wilson, McFarland accesses his property in the only way possible: via Glacier Route 7.

McFarland’s property is just three miles north of the Polebridge Ranger Station. Because of the patent granted to the original homesteader and the rights guaranteed homesteaders by the Glacier National Park Act, the National Park Service (NPS) may not deny McFarland year-round access to his property.

Thus, in the 1970s, when the NPS put barriers on Glacier Route 7 to prevent the general public from driving north of Polebridge Ranger Station in the winter, the NPS guaranteed access to landowners.

The NPS did so because it recognized that is what the law requires. As the NPS explained, in August 1985 in its Land Protection Plan for Glacier National Park, “[t]he National Park Service recognizes private landowner rights [{to} ‘reasonable and adequate use and enjoyment of his property’ {are}] guaranteed in the enabling legislation for the park …”

However, in December 1999, the NPS sent McFarland an email informing him “that no one will drive park roads once they are closed to the public.” Though McFarland believes he has the right to use Glacier Route 7, he was willing to compromise. On January 6, 2000, he filed a special use permit application asking the NPS’s permission to use a vehicle or snowmobile to travel between his home and the Polebridge Ranger Station. On January 24, 2000, the NPS summarily denied that application.

McFarland sued. First, because he claims an easement in Glacier Route 7, with which the NPS interfered, he sued under the Quiet Title Act, by which Congress authorized landowners to get title to property to which the government asserts an adverse claim. Second, because the NPS arbitrarily and capriciously denied his special use permit, he sued under the Administrative Procedure Act (APA).

Recently, a Montana federal district court dismissed McFarland’s case. The court ruled he had filed beyond the Quiet Title Act’s 12-year statute of limitations, which, according to the district court, began to run in 1976 when the NPS restricted the general public’s ability to use Glacier Route 7 north of Polebridge Ranger Station. Though the NPS gave McFarland complete access to Glacier Route 7, he should have known, reasoned the court, that the NPS believed it could deny him that right. The court also dismissed the APA claim because the Quiet Title Act is “the exclusive means” of resolving property disputes. Both rulings are legally suspect and terrible public policy.

Since 1910, the NPS acknowledged consistently that it could not deny people like Jack McFarland access to their property, putting that understanding in writing as recently as 1985. That written statement came less than 10 years after, in the court’s view, McFarland should have known the NPS claimed just the opposite. Moreover, when McFarland requested a special use permit, he was not claiming a property right but seeking a license, which the NPS could revoke unilaterally. Under the APA, he has a right, as do all citizens, to have that request decided in a manner that is neither “arbitrary nor capricious.” Thus, the court has deprived all who have property disputes with the government of their right, as granted by Congress in the APA, to fair and equitable treatment.

The court has essentially told property owners who access their property via federal lands that, any time the United States restricts the access rights of the general public to use those lands, it has acted in a manner adverse to the property owners and, to protect their rights under the Quiet Title Act, they must file suit. The Montana court has opened the litigation floodgates.

William Perry Pendley is president and chief legal officer of the Mountain States Legal Foundation.