By Michael Howell
The Ravalli County Commissioners were urged last week to take action, one way or another, in order to settle the dispute over the locked gate that blocks public access about eight and a half miles up Hughes Creek Road. The gate has been there for over forty years and, as one commissioner put it, a controversy seems to arise over it about every ten years.
In this case it appears that a recent Supreme Court ruling concerning some locked gates on roads along Modesty Creek, north of Anaconda, has stirred interest in the locked gate on Hughes Creek. Deputy County Attorney Howard Recht said that it would be the controlling case in this issue. Recht said that in the case involving the road along Modesty Creek the road forked, with the lower fork running along the creek and ending at a pond on private land. The upper fork goes through private land but ends on national forest land. The road below the fork was gated and locked from 1980 to 2012 when the county commissioners cut the lock and opened the gate. According to Recht, the Supreme Court found that the lower road was a petitioned road adopted by the county but the upper road was public by prescriptive right. They ruled that the public did not lose the right of access on the petitioned road even if it was blocked by a locked gate for some period of time. But the public did lose its right of access on the prescriptive easement due to the fact that it was closed to the public for over five years and the closure was not contested.
In this case, Recht said, the county was in possession of documents from 1900 that appear to show that, starting at the Alta Post Office, twelve miles of the road was adopted by petition. Other documents, he said, suggest up to 18 miles was petitioned. He said the conflicting numbers might need reconciliation but that since the gate was at a point only eight and a half miles up the road that it was indeed blocking a petitioned county road. He said that it is not uncommon in things this old that documents get lost and the record is incomplete. But he said the Supreme Court has recognized this fact and does require proof, “but it does not have to be perfect.” There was also a record of an initiative to abandon the road in the 1980s but the request was denied.
Recht said the purpose of the current meeting was to see whether the commission wants to do anything or not about the locked gate. He said they could do nothing or they could direct the county attorney’s office to move forward with some action to open the gate. Or they could attempt to gather more facts before making any decision.
Seth Progue, who owns a majority of the land above the closed gate, told the commissioners that the road does not access any public land. He said the road was very narrow and was only wide enough to accommodate one vehicle in a lot of places. He said it went right by the four homes located along it and that the property plats on those roads show no public easement.
Martin King, an attorney who represented the landowners in the Modesty Creek case, said that the Supreme Court’s decision in that case does not help the county’s claim. He referred to another 1981 case as well, which dealt with the issue of state standards for adopting roadways and a county attorney memo stating that there was not enough evidence to open the gate. He also suggested that another document could be interpreted as vacating everything except the first nine miles of the road, although the commissioners disagreed with that interpretation.
Retired West Fork Ranger Dave Campbell said that the road did access national forest land until the gate was installed and there were records of people using it to access Trail #650. He said the evidence shows that the road was adopted as a public road and never abandoned.
“My pitch is to restore public access to public lands,” said Campbell.
Current West Fork District Ranger Ryan Damsalla told the commissioners that the Forest Service was there as a “concerned landowner” and its belief was that the road was a county road, although the Forest Service has some maintenance responsibilities. He referred to a letter from the acting supervisor of the forest at the time to the county stating the Forest Service’s opinion that it was a public road under county jurisdiction. He said that records show that it was adopted by petition and never abandoned. He said there were a number of recreational benefits to the road. It provides access to an existing trail and provides dispersed camping, hunting and fishing opportunities. He said the surrounding national forest land was designated as Management Area 1 to be managed for timber, livestock and roads for dispersed recreation.
Lola Grenfell, who owns property along the road, said that the public did not use the road, although the Forest Service was allowed during fire season. She said that “no trespassing” signs were up since the 1950s and the Forest Service trail in the area had not been maintained since then and in many places was hard to find. She said making the road safe for public travel would be very expensive.
Jim Olsen of Ravalli County Fish and Wildlife, the Montana Wildlife Federation and Public Land and Water Access, urged the county to keep the road open.
Kent Miller, a retired Forest Service surveyor, said that the record as a whole shows it is a public road and the only question was where does it end. He also noted that according to a law passed in 2005, the county cannot vacate a road that provides access to public land.
Martin King noted that the national forest did not exist when the mining claims were established and the road put in. He also reiterated his claim that all but nine miles of the road was vacated in 1967. He said the road was in bad condition and did not access public land. He said the road deadended on private property and any prescriptive access to the trail reverted to private use five years after the gate was installed in 1978.
Commissioner Jeff Burrows stated that he was not prepared to make a decision about the road. He said it may be a public road, but he saw no reason to open the road if it did not provide access to public land. The other commissioners all agreed on that point.
It was agreed that Commissioners J.R. Iman and Doug Schallenberger would serve on a committee that would visit the site and make a determination as to whether the road accesses any public property or not.