GALLIK, BREMER & MOLLOY, P.C.

Attorneys
777 East Main Street, Suite 203
PO Box 70
Bozeman, Montana 59771-0070

(406) 404-1728

June 7, 2019

Gallatin Valley Land Trust By Email

c/o Andy Dana
212 South Wallace Ave. # 102
Bozeman, MT 59715
andy@conservationlawassociates.com

Mike Harris By Email

Gallatin County
Conservation and Parks
311 West Main
Bozeman, MT 59715
mike.harris@gallatin.mt.gov

RE: “Painted Hills – Triple Tree Connector Trail” Easement.

Dear GVLT and Gallatin County:

As I previously advised in separate phone calls to each of you, this Firm

represents a number of individuals who own property in the Triple Tree, Saddle
Ridge and Painted Hills subdivisions, located in Gallatin County, Montana. The
recent opening of the public trail, connecting the Painted Hills and Triple Tree
subdivisions, while passing through the Saddle Ridge subdivision, and ultimately
providing access to State land south of Triple Tree, has had significant, adverse
impacts on right to quiet enjoyment of their properties, a right that is recognized in
the underlying easements. The public’s persistent disregard for the restrictions on
use of these trail easements has not only resulted in frequent, illegal trespassing,
those same acts impair our Client’s right to the “quiet enjoyment of [their]
property” which, according to §6 of the “terms and conditions” in the Gallatin
Valley Land Trust’s (“GVLT”) Grant of Trail Easement and Servitude, can be
grounds for the suspension of trail use if impaired.

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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.

In summary, and as explained, our investigation revealed substantial adverse

impact upon our Clients’ properties because of the failure by many users of the
trails to abide by the restrictions set forth in the easements; minimal education of
the public of the restrictions in the easements; and non-existent enforcement of the
trail restrictions. In fact, GVLT and the County have been negligent in enforcing
the easements’ restrictions, which is another theory of relief. See Simpkins v.
Speck, 2019 MT 120, ___ Mont. ___, ___ P.3d. ___ (May 28, 2019). If the
public continues to neglect, and the GVLT and County continue to fail to enforce,
the rules and regulations laid out in the Grants of Trail Easement and Servitude,
our firm, on behalf of our Clients, will be forced to seek all remedies afforded
under the law. These remedies include, but are not limited to:

- Equitable relief from the Court, including temporary, preliminary and

permanent injunctive relief;

- Any damages that the Court deems reasonable; and,

- If necessary, termination for misuse of the easement.

I.

Nature of Easements.

An easement, as defined in The Law of Easements and Licenses in

Land, is a “[N]onpossessory interest in land of another.” Bruce and Ely, The
Law of Easements and Licenses in Land. Several aspects of this definition
are noteworthy:

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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.

An easement burdens land possessed by someone other than the

easement holder: this characteristic is a corollary of the nonpossessory
element of an easement. It emphasizes the distinction between
possession and use and highlights the fact that a possessor and an
easement holder can simultaneously utilize the same parcel of land.

The holder of an easement has a duty to not overburden the easement.

A holder of an easement becomes a trespasser to the extent that the
holder’s use of the servient estate exceeds the scope of the easement.

“The owner of the servient tenement is entitled to equitable relief, and

the courts regularly issue injunctions to restrict the dominant owner to
a proper enjoyment of the servitude.” Bruce and Ely, § 8:17, citing,
Shammel v. Canyon Resources Corp. 2003 MT 372, ¶ 15, 319 Mont.
132, 82 P.3d 912. Misuse of the easement can also create a nuisance
for those properties who are adjacent to the easement. Cf. Simpkins v.
Speck, 2019 MT 120, ¶ 20, ___ Mont. ___, ___ P.3d. ___ (May 28,
2019).

II.

The Easements at Issue.

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:

1) Grant of Trail Easement and Servitude, No. 2583104.

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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”);

b) Relevant Terms and Conditions (all emphasis added):

i) §2 - Term of Easement: This Easement shall be permanent

and shall run with the land and shall be binding upon the parties
hereto and their respective heirs, personal representatives,
administrators, successors and assigns, unless terminated as
herein provided.

ii) §3 - Purpose and Location of Easement: Grantee shall have

the right to construct, maintain, and repair a trail for public use,
within that 2.6 acre portion of the Property (Tract 1 of C.O.S.
1709) described thereon as the “New Trail Easement.” 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 and fills, provided
that the trail shall be constructed in a manner that minimizes
impacts to Grantor’s Property. Said trail, when constructed,
must consist of a natural, permeable, non-paved single-tracked
surface and shall be restricted to non-motorized uses, as more
particularly set forth in Paragraph 4 below.

iii) §5 - Signage: Grantee shall have the right to build trail

markers, kiosks, signage pertaining trail uses and restrictions,
and fencing within the trail corridor to manage the recreational
use.

iv) §6 - Suspension of Trail Use: In its reasonable discretion,

Grantee may regulate, manage, restrict and suspend public
recreational use of the Easement from time to time and season
to season, if it becomes necessary to protect public safety and
welfare or to resolve or to mitigate public nuisances and
disturbances that affect Grantor’s quiet enjoyment of the
Property.

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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.

vi) §10 - Other Rights, Limitations and Restrictions:

(1) a. Camping, overnight uses, littering, fires, removal of or

intentional damage to vegetation or other property, and
discharge of firearms for hunting or any other purpose is
prohibited.

(2) d. Grantee may manage vegetation within the Easement

corridor through selective planting and/or removal of
trees, shrubs, grasses or exotic or noxious plant species in
order to maintain and enhance the scenic, natural,
ecological and open space values of the Easement, and to
provide for privacy for Grantor and neighboring
property owners and to mitigate trespass or trail-cutting
issues.

(Emphasis added).

2) Grant of Trail Easement and Servitude, No. 2583105

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”);

b) Grantor is the owner of the servient property, described specifically

as:

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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.

The Public’s Misuse of Easements - Specific Issues Experienced by

Landowners.

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.

As previously stated, §10(d) of the Grant of Trail Easement and Servitude

promises the Grantor their right to privacy. Unfortunately, it is hard to claim that
they have been granted that right when the public can be found, on a near-daily
basis, wandering Grantor’s property. Additionally, as there are no bathrooms in
the vicinity, many users of the trail, according to one landowner, resort to relieving
themselves in or near our Clients’ yards: an unpleasant sight for adults, but an
unacceptable sight for the neighborhood’s kids.

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.

A couple of families, in particular, have suffered significant loss of

enjoyment of their property because of the failure of the GVLT to vet the location
of the trail easement before accepting the grant of easement and constructing the
trail. Specifically, a portion of the trail drops down from the ridge into, essentially,
the backyard of these families. While GVLT has offered some mitigation, more is
necessary, including a discussion of relocating that easement.

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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.

The unsupervised use of bicycles has transformed parts of these easements

from leisurely trails into unsupervised racetracks -- threatening humans, dogs, and
wildlife. One of our clients has even had problems with bikers using a hill behind
their house as a jump.

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.

As it concerns Triple Tree, it is essential to note that whether bikes are

allowed on the trails within that subdivision is unclear. The Final Declaration of
Covenants, Conditions, and Restrictions of the Triple Tree Ranch, Article VI, §5 -
“Open Space” states: “ … The Association may install Internal Homeowner’s
Pedestrian Trails for walking, hiking, jogging, cross country skiing”; the section
continues: “An east-west public pedestrian trail will connect the north-south trail
with Sourdough Road where a public pedestrian trailhead will be located”
(emphasis added). Article VIII, §5 - “Violation Constitutes Nuisance” states:
“Every act or omission, whereby any restriction, condition or covenant in this
Declaration set forth, if violated in whole or in part, is declared to be and shall
constitute a nuisance and may be abated by Declarants or their successors in
interest and/or by any lot owner; and such remedies shall be deemed cumulative
and not exclusive” (emphasis added). Bikes are referenced in another section of
the covenants, but whether that means they are allowed on the trails is unclear.

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.

Unfortunately, it has become common for members of the public, both

hikers and bikers, to disregard any reasonable hours -- using headlamps and bike
lights to traverse the trail both before the sun has risen and after it has set. Not
only does the public’s use of these easements at unreasonable hours violate §6 of
the Grant of Trail Easement and Servitude, but it also violates §10(a), which states
that “ … overnight [use] … is prohibited.”

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.

The specific problems identified above, are individually in violation of the

terms of the easements. Collectively the misuse of the Triple Tree and Saddle
Ridge trail easements results in an actionable nuisance for the residents of the
neighborhoods. According to M.C.A. §27-30-101 (1):

Anything that is injurious to health, indecent or offensive to the

senses, or an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property, or that unlawfully
obstructs the free passage or use, in the customary manner, of any
navigable lake, river, bay, stream, canal, or basin or any public park,
square, street, or highway is a nuisance.”

See also, Simpkins v. Speck, 2019 Mont. 120, ¶ 15, ___ P.3d ___, ___ Mont.
___ (May28, 2019).

M.C.A. §27-30-102 explains the distinction between a public and

private nuisance:

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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.

(2) Every nuisance not included in the definition of subsection (1) is

private.”

Just recently, the Montana Supreme Court held that a landowner’s

negligence in feeding birds created a nuisance because it interfered with her
neighbors’ “comfortable enjoyment” of their property (measured by the ordinary
and reasonable person standard), and upheld an injunction (although it remanded to
revise the scope of the injunction). The Court explained:

When considering what constitutes interference with a property

owner's comfortable enjoyment of his or her property, "it is the
ordinary and reasonable person's complaint that should serve as a
basis for what is a nuisance." Kasala v. Kalispell Pee Wee Baseball
League, 151 Mont. 109, 114, 439 P.2d 65, 68 (1968). "A nuisance
action may be based upon conduct of a defendant that is either
intentional, negligent, reckless, or ultrahazardous." Barnes v. City of
Thompson Falls, 1999 MT 77, ¶ 16, 294 Mont. 76, 979 P.2d 1275. An
action may "become[] a nuisance [**9] by virtue of circumstances
and surroundings." Barnes, ¶ 17. A nuisance based on negligent
conduct "consists of anything lawfully but so negligently or carelessly
done or permitted as to create a potential and unreasonable risk of
harm, which, in due course, results in injury to another." Barnes, ¶
18. "A negligence action has four elements: (1) duty; (2) breach of
duty; (3) causation; and (4) damages." Henricksen v. State, 2004 MT
20, ¶ 20, 319 Mont. 307, 84 P.3d 38. All persons have a general duty
of care "to abstain from injuring the person or property of another or
infringing upon any of another person's rights." Section 28-1-201,
MCA.

Id., ¶ 15 (emphasis added).

As it concerns the use of an injunction to address a nuisance, the

Court explained:

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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.

We have explained that "if a nuisance is private and arises out

of the particular manner of the operation of a legitimate enterprise the
court should [do] no more than to point to the nuisance and decree
methods of adoption calculated to eliminate the injurious
features." Kasala, 151 Mont. at 116, 439 P.2d at 69; see also 58 Am.
Jur. 2d Nuisances § 299 ("[A trial court] should not enjoin more than
that which constitutes the nuisance, should not go beyond the
necessities and requirements of the particular case, and should go no
further than is absolutely necessary to [**12] protect the rights of the
parties seeking the injunction." (footnotes omitted)). We have
recognized that there is an "overriding policy of individual expression
in free and reasonable land use." Higdem v. Whitham, 167 Mont. 201,
208-09, 536 P.2d 1185, 1189 (1975). Thus, while "equity may so
decree" the complete abatement of an activity, when it is "possible to
[] eliminate[] the objectionable features which were alleged to have
infringed upon the ordinary rights of the respondents" without
complete abatement, the court must tailor its injunction to do
so. Kasala, 151 Mont. at 116, 439 P.2d at 69.

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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.

Against this backdrop, we have uncovered no evidence that GVLT or the

County have taken any steps to enforce the restrictions in the trail easements. At
the very least this is negligence.

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.

1. Pitkin County, Colorado.

Pitkin County, Colorado, is much like Gallatin County, Montana: beautiful

scenery which can be enjoyed by the public through a large system of trail
easements. And, like Montana, these trails have had their own issues with public
misuse. Because of this, Pitkin County developed a set of rules and regulations,
including enforcement mechanisms, which have been applied to support the safe
and respectful use of these public easements.

In Section 12.04.110, Remedies and Enforcement, Pitkin County’s

regulations provide mechanisms for enforcement of the easement restrictions,
which are presently lacking with the easements at issue in this case.

(A). Penalty: “Violation of [these] ordinance[s] is a class 2 petty

offense, punishable by a fine of $100.00 for the first offense, $500.00
for the second offense, and $1000.00 for the third and subsequent
offenses.

(B). Criminal Enforcement: “The Director of Pitkin County Open

Space and Trails, Open Space and Trails Land Steward, Open Space
and Trails Ranger, the Pitkin County Wildlife Biologist, Pitkin
County Zoning Officer, the Pitkin County Community Development
Director, Pitkin County Engineer, or any law enforcement officer may
allow the penalty assessment … for any violation of this ordinance, or
may enforce the provisions of this ordinance by filing and service of
summons and complaint in accordance with county court procedures.

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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.”

(C). Civil Enforcement: “In the event of any violation of the

ordinances, the County Attorney, in addition to other remedies
provided by law, may institute an injunction, mandamus, abatement,
or other appropriate action or proceeding to prevent, enjoin, or abate
any unlawful activity, or to remove any improvements on construction
resulting from such unlawful activity. Any civil action or proceeding
can include a claim to recover all such money damages.

Section 12.04.120 governs “Posting” and reflects the importance of adequate

signage within the easement to ensure the public is well-aware of the rules and
regulations. This section closely resembles the language laid out in §5 of the terms
and conditions of the easement contract between the GVLT and our Clients:

“These regulations, or a summary thereof, will be posted at visible

locations on Open Space and trails Properties. Full text of these
regulations shall be available for public inspection at the offices of the
County Open Space and Trails Director, Land Steward and the Pitkin
County Open Space and Trails Program.”

2. Montana State Parks.

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.

These suggestions are as follows:

- Education: The Montana State Parks puts a heavy emphasis on

education -- stating that it is best to address potential enforcement by
avoiding it ever taking place. They suggest trailheads keep “Accurate
information about trail conditions, closures, animal problems, weed

15
 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.”

- Reporting Procedures: This emphasis on education also extends to the

reporting of violations. Since violations are likely to be viewed by
other trail users, those users need good information on proper
procedures for what to do after observing violation, and how to report
said violation once it has been observed. This includes: sheriff and
agency phone numbers and comment/reporting boxes at trailheads.
They suggest establishing an 800-number which would reward those
who reported the violation (reward would be a percentage of the fine).

- Volunteer Enforcement: The Montana State Parks suggest using

volunteers to increase enforcement presence. Since hiring additional
staff can be difficult, alternatives such as volunteer trail “stewards” to
patrol heavily used trails could be a potential solution. Providing this
presence increases the chances that problems will be observed before
they become more severe. There must be a collective feeling of
responsibility.

- Examine Current Penalties: The Montana State Parks suggest making sure
that the current penalties in place provide adequate disincentive for potential
violators.

- Trail Signing: Trail users have expressed a “strong interest” in

improved trail signing during the Plan scoping process, stating: “... in
some cases there is a need for more signing marking the boundary
between public and private lands”, as well as a general need for
“Improved sign maintenance.”

- Ways to improve trail signage: One suggestion for improving signage

is: “Agencies might explore working with high school shop classes,
prisons, volunteer groups, or other organizations to produce certain
types of signs … working with high school students in areas where
there are sign vandalism problems could be a way of helping make
young people more aware of the issue.”

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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:

- Addressing Owners’ Concerns:

- Setting Standards: “The easement document can set appropriate

standards for responsible recreational use to avoid harm to persons,
private property and natural environment. The Model provides the
option to add a list of standards placing limits on time, place and
manner of entry to avoid inappropriate exercise of the rights granted
with that 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.”

- Removing Trespassers: “Anyone who enters the easement area and

engages in an activity not within the scope of permitted uses, or who
engages in a permitted activity but not within the easement area, is a
trespasser and can be barred from entering or ousted from the property
just as any other trespasser can be ousted. Trespassers can be
removed with the assistance of the local police or, if it can be done
without violence or confrontation, on one’s own.”

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 4. Mad River Path

The Mad River Path is an organization whose mission is to build, maintain,

and conserve a system of public pathways in Waitsfield, Vermont. Their sample
Trail Access Easement includes covenants which outline important parameters for
the handling of any misuse or violations of its rules and regulations:

- Trail Construction and Maintenance: “Grantee shall maintain the Easement

Area as part of the Path trail network in a safe condition. If the Easement
Area is not maintained in a safe condition, Grantors shall have the right to
temporarily close the Easement Area until such time as the condition of the
Easement Area is brought back to acceptable condition.”

- 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.”

5. Mountain Heights Subdivision.

The Mountain Heights Subdivision HOA, located in Missoula, Montana, has

developed an arrangement with the city of Missoula which is notably similar to the
arrangement in this case; however, there are a few basic conditions which apply to
the Grantee which may need to be implemented in Triple Tree and Saddle Ridge:

- Rights, restrictions, duties and conditions:

- “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.”

- “5. Grantor, the Mansion Heights Homeowners’ Association, Inc. and

Grantee or their respective assigns shall periodically conduct a joint
inspection for the purpose of identifying and coordinating any
anticipated improvements, construction, maintenance, repair or
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 alterations to the trail. In the event of conflict, Grantor’s or the
Mansion Heights Homeowners’ Association, Inc.’s determination
shall be controlling.”

- “6. Grantor or the Mansion Heights Homeowners’ Association, Inc.

may revoke or close the permitted access granted herein due to failure
by grantee to comply with any of the restrictions, duties or conditions
… [r]evocation or closure shall be preceded by a notice to Grantee
from Grantor or the Mansion Heights Homeowners’ Association, Inc.
of intent to revoke or close the permitted public recreational access
and use. The notice shall state the specific non-compliance and/or
violations of restrictions, duties, or conditions and provide Grantee 30
days in Which to present an acceptable plan to resolve the conditions
of non-compliance and/or violation … [f]ailure by Grantee to respond
to such notice and/or to bring the public use in compliance will result
in revocation and/or closure.”

6. Red Wind Point Open Space

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:

- Leverage Volunteer Groups and Community Support:

- “1. Adopt-a-Trail Program: The County may continue its Adopt-a-

Trail Program, to support the County in the maintenance, management
and ongoing operations of the existing trail system. The County will
also consider the expansion of the program to include sponsorships
from organizations that choose to enter into agreements as a
welcomed component in the County’s mission to manage a high-
quality trail system. Funds collected from this program shall be
exclusively available to the County for programming, maintenance,
management and other activities directly related to the trail.

- “2. Community Support Organizations: The County may investigate

the implementation of partnerships with individual not-for-profit
organizations that will serve as a voluntary organization as an
extension of the County. These organizations shall receive training,
offer indemnity to volunteers within the system meeting proper
qualifications and certifications to perform functions on behalf of
staff.”

- “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

- “Where trails are located adjacent to developed properties, security

and privacy may need to be taken into consideration. Consideration
should be given to the use of non-toxic native or ornamental plants to
create an aesthetically pleasing visual barrier to developed land uses
that are not intended to be publicly accessible.”
-
- 5.1.1 Hours of Operation
- Under County Code 17.04.330, “The hours of operation are at the
discretion of the Director and are typically signed from dawn to
dusk.”

- 5.1.3 Physical Resources

- Under County Code 17.04.500 and 1118.15, “Littering and dumping

is prohibited. Any person who violates the littering laws may be
arrested or issued a citation.”

9. Catamount Trail Association.

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:

- “CTA monitors all easements and properties yearly … Local

trail chiefs or student interns monitor all protected trail

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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:

- “If a violation is noted during the annual monitoring visit, it is

documented and reported to the CTA Trail Protection Director
who informs the Trail Protection Committee and the landowner
of the violation promptly. The Trail Protection Committee then
discusses and recommends a course of action.”

- “For minor violations on trail easement properties including,

but not limited to trespass by persons on snowmobiles,
dumping of trash, and activities that do not seriously harm the
property, CTA will attempt to resolve the problem by using
educational and mitigative measures.”

- “The CTA will make a good effort to remedy violations without

involving legal counsel or court action but when an educational
or mitigative approach is unsuccessful, CTA and the landowner
may be required by the easement terms to submit to arbitration
or take other action. Each easement should include a standard
binding arbitration clause or other language addressing
enforcement of the restrictions dictated by the easement. Should
formal arbitration fail, or issues arise which are not covered by
the arbitration clause, the CTA may initiate court action.”

As you can see, many other communities have developed strategies to

breathe life into the restrictions, terms and conditions of easements, including those
which protect the servient and adjacent landowner’s right to quiet enjoyment of
their properties. While GVLT has been successful in connecting Bozeman to the
mountains south of town, with trail easements, the real work remains to be done:
ensuring that the public’s use of that trail is respectful of the owners of the private
land near or over which the trail crosses and when it is not, that consequences
follow.

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.

As it concerns several families, the failure to foresee the problems inherent

in constructing the trail so close to their backyards, particularly in light of the
topography of the surrounding property, presents additional challenges which the
planting of trees and building of a fence will not solve. On that issue, there is a
need for additional discussion about moving the trail from its present location.

VI.

Conclusion.

The purpose of this letter is not to intimidate or threaten. Instead, the

purpose is to outline our Clients’ justified grievances which are the legal and
factual result of (1) the public’s disregard for the rules and regulations in the
easement documents, resulting in daily misuse of the trail; and (2) the complete
failure of the GVLT and County to enforce the rules and regulations, as they are
contractually obligated to do. While there are numerous issues which require
discussion, including the location of the easements in several areas; the use of
bikes on the trails; use of the trails after sunset and before sunrise; trespassing;
dogs off leash; and the complete absence of any monitoring of the use of the
easements and the lack of any enforcement of the restrictions are most prevalent.

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.

Please contact me by no later than Wednesday, June 12, to discuss a

mutually convenient time to discuss these issues.

Sincerely,

GALLIK, BREMER & MOLLOY, P.C.

/s/ Brian K. Gallik

Brian K. Gallik

C on Monday June 10:

Gallatin County Commissioners
Erin Arnold (Gallatin County Deputy Attorney
Triple Tree HOA
Saddle Ridge HOA
Gene Cook
Ken LeClair
Richard Schoneberger
Landowners (June 7)

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