provider as i see it this case presents price three primary issues for discussion today the first of those issues is can the forest service acquire access by prescription and more particularly as the fed has a federal land policy and management act preclude the forest service from acquiring prescription here what if you're part of before make hundred seventy six when the act went into your honor yes if the evidence that was presented did demonstrate that the forest service had acquired prescripti prior to let me as an act meant then yes there is an argument that it would have even got a factual finding by the district court that the statutory requirement in montana will watch for the creation of a prescripti statutory interpretation arguments that are well argued in the brief but i'm not sure at the end of the day making me be difference if the district court was correct to respond as your honor directly one the district court is not correct a fair reading of the district court secondly to your honor question about the evidence in the record that is a factual question whether the not the elements of prescription were satisfied prior to nine hundred seventy six i mean the problem i have with the case and i'm sympathetic to your client's position i know how sensitive landowner rights are with regard to access and trespass particularly in our part of the world but the trail existed since ninety eight hundred eighty eight it's basically an old indian trail and the evidence of the record seem to suggest that it had been on virtually continuous use from that time to the present day although the frequency and the type of use varied from decade decade and it's hard for me to look at that that record and say to myself the district court got the facts wrong there's a clear error here in concluding that the prescriptive easement must have been estab hundred eighty nine there was usage by stockton and outfitter fishermen guiding services and just members of the general public who wanted to hike into the through the wilderness use that you cite a rose here by neighborly accommodation no that's not what the district court found they found some use arose from the neighborly commendation used by the rangers but they didn't find it all they said the forest service was quite different they said the use by others that were not ranchers were guarded about the outfitters were dark about all of those who were not the rangers or not those who  fellows with those people but was not at all neighborly and your honor respectively the district court gets it wrong or i understand but if it's only difference i want to go back to your first point because i thought judge thomas question was pretty de good i don't know where you're going when you're saying that flip no which wasn't even around at the time this easement was began or did not beg it comes to the party late as any effect on this particular situation seems to me you are admitting the government could have had an easement prior to that you agree with that i don't agree that the should i mean the bottom line no that's not my question whether the evidence shows that the question is you admit the government could have had a nice prior to flip yes the only reason you're citing flip my is because of its restrictive language correct correct so before that the government could have taken an easement and there could have been a public easement both correct so if the district court is suggesting that any time prior to nine hundred seventy three there's an easement and it's taken then at that point flipping a has no no effect on this particular case because flipping a doesn't come along until ninety six isn't that true that is true you're all right so then at that point i'm wondering why we've got the first question because it doesn't seem to me that there is any first question were they said seventy three so all we've got have nineteen twenty four the forest service constructed a road to service forces and wagons nine hundred forty the forest service probably use a map and named it trail three twenty eight nine six the rancher's county but you say that's neighborly and so did the district court in the late fifty's the forest service regularly maintained the trail logging it out limby and brushing rock removal and bridge they checked the grazing allotment state given that the fishermen one hundred everybody started using the trail for recreational purposes in sixty two the forest service service granted commercial outfitter permits in early eighty's the forest signs came up now all of that happened prior to seventy three children get to the eighty's and that's what the district court is suggesting the per the trail is now take deference to the district court in their findings and this is in the record how can i suggest that the district court has a clear error here your honor there is no evidence that those actions that use undertaken by the forest service was under a hostile language just write in a hostile let me talk about that if i look at the montana law and i look what it is what the forest service has got to prove in general i know what the district court said they have to prove but there are other words that are also used for the same open notorious exclusive adverse continuous of uninterrupted words aren't there under the case law and that is that it just be uninterrupted couldn't continue asli used under a right they think they own that's what the case law says doesn't it does your and that is exactly why we don't have to talk about exclusive when it comes to public easement as to the manner of use i think the toughest evidence for you because you're  that that use alone is clearly not sufficient under montana law to demonstrate prescription one that uses musharaff to the landowner is a hostile claim of right and there i have and there is simply no evidence in the record of any member of the public or the government whether her believe whether my conduct however expressing that hostile use what the let me have to do counter can you drill down on that for me because at one point i but the district court has to make a determination and then me on appeal and i admit i was a district judge so i'm kind of biased about this on appeal it seems to me that i have to give some deference to the district court so shifting through all that evidence which might be both sided the district court came to the conclusion public pees meant in the district court ever and come to this conclusion why nobody on appeal blessed that i am on the ninth circuit why do i have the authority to i'm doing that clear error only with the clear a neighborly accommodation implying permission but that can't be right can it if there were if there was evidence of use by a day hikers and fishermen and they didn't know the hudson and were not their neighbors it seemed to me that the district judge in invoking the doctrine of neighborly commendation was recognizing the usage by the neighboring ranches in driving cattle and horses into the wilderness area pursuant to their raising and that's different from use by day hikers or fishermen who are simply using the trail here to get access up in the revoke your honor the fact they're a little broader than the court would have but the law does not drive attics the stink of the law does not say if it's soley ranching use the roads by neighborly a does here your honor boom v crockett montana supreme court has spoken directly to this issue in that case you had users boy scouts from far away and it was the concept of allowing these people neighbors imply permission to  implicitly allow these people to pass they only on a few occasions refused they continued in the district court may describe as well they continued that implied permissive use those two findings should have compelled the legal order to prove a youth is hostile and i would refer the court's attention to the broom it case in the case the court held simply simply using a road or a way without ever asking a receiving any permission is hostile that's hostile use if you have decades of people using this trail and not tried to hide that use that's a hostile use now that the case is a plate of lies it has to use maybe it's that everybody knew that these folks were accommodating well no like broad rule that applies across montana it all derives from the original agreement between the landowners right that's very clear and in fact there's no deviation in montana law on that point so you're  circumstances in assessing permissive use so you can't say there's a bright line rule about permissive use you've got to go back to the beginning and look at the facts and figure out who gets permission in this case the court said that's neighboring ranchers that are taking cattle this very right which seems to me to be an implied acknowledgement that the federal government owed some money for something else as own dollars long so for services policy longstanding policy where they have prescriptive access rights they're going to try and reduce that to writing that makes sense because it's designed to avoid exactly this situation this litigation well how much of that policy been around because this trails been around for a lot longer than you not yet and then the evidence shows up in the findings of fact confirmed that the four service was trying to purchase an easement here from one hundred sixty on the testimony is very clear we're service has this policy the district rangers do not have authority to illian the federal interests in the land i mean it's important to keep in mind the forest service has an interest in this trial that the public has an interest in they don't they don't have a door at the sure but that really begs the question about what was the status of the easement at the time and it seems to me that there's this very fair inference that opposing counsel is drawing from the fact that the government and i think it's a really for tract of effort to try to purchase this very right that it now says it it all along so what should we do with that ok but if we look at newton the shrewder which is montana supreme court case which basically says just an offer to purchase is not a waiver is not an extinguishment of the usury you don't look at the circumstances so good and the circumstances here were public continue using the trail the trail which had even worse service i think that's a perfectly consistent with the other facts that we have in this kid's all about maybe stronger that may be stronger for you but i just want you an opportunity to respond that just the forest service designating on a map that maybe you will be used by outsiders coming to the area but not most familiar with the local circumstances it causes me well concern there was plenty of testimony during the trial your honor that people saw this many people saw this route designated as trail three twenty eight and took from that the meaning that this is open testified about trail maintenance beginning that ok we have montana case of the already very clearly states that if you have a government authority maintaining a trail and the public is using that to a long term that's a hostile use right that is brought to the attention the landow it just reflects the fact that they're conducting that annual maintenance and they could and did observateur for service conducting maintenance on that trail so that was something and this is another component that's very interesting in this case we have this extraordinary journal the wonder in journals when the hudsons were in montana for two months a year they would record what happened right and they were recording all this use occurring but a lot of those activities must have gone on at other times of the year some of the heaviest trail use the drill received occurred when the hudsons were there  periodic we go back through and sometimes they were building a bridge that was you know further up the trail so what do we do with the internal forest service memoranda that from the age of lindsay in others world essentially saying you know we use this trail at suffer the landowner and they can revoke their permission at any time during and we really need to buy the easement and get it in writing that seems to imply that the forest service  think it had a prescriptive well ranger as he testified and he was questioned on this point repeatedly you know what it was all about and he repeatedly said i just wanted to get it in writing because the one ranch has exhibited a propensity for blocking  trail they put the chain across the trail and the neighboring manager gina she meant he had to go up there and say you're going to block this trail i have established you straight here so take that chain down and they did but virgil knew about that right and so he wanted to try and reduce it to ri know i was so i would have to clarify that reader lindsay did not have a check in his hand and was not off the road is offering the money he was i think he was beginning communication starting a conversation two thousand dollars i saw five thousand dollars was i so i will split the difference with the seventy five hundred bytes and he's me like you've got it if he doesn't have the check in hand he's got a number well so these are negotiations that were happening in the east and again it was designed to avoid exactly the situation that we find ourselves in now and it was so let me ask you this what is a landowner to do if they want to try and be good stewards a seed to the public's access to the wilderness area but they don't want to give up their and nine and that's important too because let's remember when they said they didn't do an attempt to thousand and nine because they were assured perhaps by major lindsay's and will visit sit out for supper well that the forest service never thought that when the hudson's wanted to stop motorbikes from using that trip they didn't just put up a gate or a sign that said no motorized use allowed we control this trail which is completely contrary to their current position in this litigation but what they did also the wilderness was created by act of congress then the forest service put up signs of the trailer that said no motorized use allowed and that included the section of the trail that crossed the one arrange now in park county versus united states this court held that is a notice of the million and controlled ranger lindsay is also saying you know why she does sell and even will then we'll have a written easement and we want to worry about this anymore that's why the forest service has the policy and as i understand it all of these facts including facts but by calling some question your bio and the fact that you ever spy on the two and where were placed before the district court in making this determination correct that is correct your honor so the district difficult where is it news clear and in so far as the historical facts are not established in the in the legal questions are predicated on those historical facts and that's also peer review so it's a little bit complicated in terms of adverse possession or prescriptive easement but in this case in particular i think it's important to keep that in the human mind because there were literally thousands of pages of exhibits and weeks of testimony here that we have control users going back you know decades here you know and i guess it bears repeating at this point that we have to really use records here going back to eight hundred eighty eight right in the bannock indians using the trail before then to access their ancestral hunting grounds and all of that  are a couple points one to your question it is impossible to square the forest service actions here with two things one whether or not an easement existed in the first instance and to whether or not but english untold amounts of money he would again be in federal court whether or not we actually have established and your honor that was an excellent post hoc justification for those actions nothing in the written record but it's up to the district court to credit that explanation and apparently the judge had thought that was a pretty good answer and there your honor there is no clear and definite justification for that conclusion and that communications recognizing us at the will of the landowner i mean us to this argument i found it interesting in your brave how long does the public have to acquiesce to this extinguish incompatible understand but if in fact one takes the easement over a five year period or prior to the point where it was five it was ten then how long does the public ha acquiesce does one act is that enough offers to purchase his one act enough and offer to purchase your honor and say i didn't edison on my question what the actor was is it enough under montana law there are eight i frankly give me the case that says one act is enough and of the case talking about an intent to purchase your honor so we're talking about which case so i make sure i'm reading the one you want me to because i