In the early 1890s, the land in the northwest corner of Montana, almost due north of Kalispell, was settled by “homesteaders” pursuant to the Homestead Act of 1862. In 1901, access to those homesteads was assured by creation of a road, known today as Glacier Route 7, running 40 miles from Lake McDonald, in the south, to Kintla Lake, less than five miles from the Canadian border, in the north.
In 1910, Congress created Glacier National Park, placing within its borders all lands, including homesteaded lands, east of the North Fork of the Flathead River, an area called North Fork. In 1916, President Woodrow Wilson signed a patent granting title to some of those North Fork lands, including lands that, in 1984, were purchased by Jack McFarland from his grandmother.
The Homestead Act granted the public the right “to enter” federal lands and to stake claims to those lands so as “to reside upon” them. Later, recognizing that it was including within Glacier National Park lands that had been homesteaded, Congress took steps to protect the rights of all homesteaders, providing: “Nothing [in the Glacier National Park Act] shall affect any valid claim, location, or entry existing under the land laws of the United States … or the rights of any such claimant, locator, or entryman to the full use and enjoyment of his land.”
Finally, the patent signed by President Wilson provided, “TO HAVE AND TO HOLD the said tract of land, with the appurtenances thereof, unto the said claimant and to the heirs and assigns of the said claimant, forever.”
With such ironclad assurances, the homesteaders, their heirs, and assigns enjoyed full use and enjoyment of their private property in North Fork, including during the winter when portions of Glacier National Park were closed to the general public. Even after the National Park Service installed a gate at the Polebridge Ranger Station, property owners like Jack McFarland’s grandmother were free to drive north on Glacier Route 7 to reach their private property. Moreover, the National Park Service went to great pains to guarantee that access by providing the property owners the means necessary to come and go as they pleased.
Fact of the matter is, the National Park Service knew that, by law, it could do no less. In its 1985 “Land Protection Plan for Glacier National Park,” the National Park Service wrote: “Private land owners [in Glacier National Park] have certain rights that must be respected[.]” Although “[p]ublic access and use may conflict with private ownership,” because “private property owner rights [are] guaranteed in the enabling legislation for the park[,]” and because “private property owner[s] retain reasonable and adequate use and enjoyment of [their] property[,]” the National Park Service has no power to deny access to that property.
Thus it was that, ever since 1910, landowners like Jack McFarland were able to use their property in all seasons, coming and going just as they pleased. In time, McFarland restored his grandmother’s home, intending to live there permanently. As it always had, the National Park Service facilitated and encouraged McFarland’s use of Glacier Route 7.
Then, in late 1999, the National Park Service sent McFarland an email; it had changed its “policy.” As of now, “no one will drive park roads once they are closed to the public.” McFarland’s requests for authorization to continue to access his property year-round were in vain. So he sued, demanding the National Park Service obey all the promises made by Congress and President Wilson.
The great Lakota Chief Red Cloud declared, “They made us many promises, more than I can remember. But they never kept but one; they promised to take our land and they took it.” Little wonder that Red Cloud’s prophetic words are seen, not just in places like the Crazy Horse Memorial in South Dakota, but in the homes of people like Jack McFarland.
William Perry Pendley is president and chief legal officer of the Mountain States Legal Foundation.