The Ravalli County Fish and Wildlife Association and Public Land/Water Access Association have asked Governor Greg Gianforte and state Attorney General Austin Knudson to step in and open the gate on Hughes Creek Road that is currently blocking access to public lands despite a Supreme Court decision that authorizes its opening. The groups claim that the gate has been found by the courts to be illegally encroaching upon a public highway and that Ravalli County has abandoned its statutory duty to remove the gate.
The gate has been in place since the late 1970’s. It became contentious, however, and in 1982 the landowners along the road petitioned the Ravalli County Board of Commissioners to abandon the road beyond the gate. But according to law, a county cannot abandon a county road used for access to public land or waters, unless another public road provides substantially the same access. The Board of Commissioners denied that petition and ordered the gate to be opened.
Two years later the commissioners filed suit to remove the gate but that case was dismissed.
“Now, despite decades having passed, and the Montana Supreme Court’s rejection of multiple legal challenges by certain landowners along the Road, the obstructing gate still exists today,” notes attorney Devlan Geddes of Bozeman, who wrote the letter on behalf of the organizations.
In July 2016, “in another attempt to avoid removing the gate,” writes Geddes, landowners Zackary and Tracy Bugli, along with members of the Cox family, petitioned the Board to abandon the county road segment of the road beyond the gate. Once again, he states, in January 2017, following a public hearing and consideration of an extensive historical record, the Board denied the abandonment petition. In their denial, the Board expressly recognized that the Road is an approximately 12-mile-long county road that provides public “access to public lands or waters” that would be entirely cut off if abandoned. The Board further found that the locked gate unlawfully encroached on the Road and ordered the gate’s removal by June 1, 2017.
“Litigation by the landowners delayed the gate’s removal by this deadline. But ultimately, in July 2019, at Ravalli County’s request and its taxpayers’ expense, the Montana Supreme Court expressly rejected the landowners’ contentions, removing any uncertainty over Ravalli County’s mandate to the landowners to remove the gate,” wrote Geddes.
That Supreme Court decision, the organizations claim, establishes indisputably that Hughes Creek Road is a legally established county road/public highway that is being illegally blocked by the locked gate, and that the closed gate is blocking the public’s right to access public lands and waters beyond the gate.
“Montana law clearly and unequivocally mandates the gate— which is an obstruction and encroachment— “shall” be “immediately” removed,” the letter notes. “The legislature’s use of the word ‘shall’ is mandatory, meaning removal of the encroachment is required…To abide by Montana law, the government has no choice but to immediately remove the gate.”
The organizations claim that by taking no action in a full year since the Supreme Court decision, it is clear that the Board, “with full knowledge of its statutory duties… is failing the public and violating Montana law.”
“A government’s refusal to uphold the rule of law, for fear of retribution by a few outlaw neighbors, is a dangerous proposition to American democracy and our peaceful way of life in Big Sky Country. Thankfully, the State of Montana, through your honorable offices, has the authority to step in, remove the gate, and restore law and order in Ravalli County,” the organizations stated in their letter.
The groups claim that in November the Ravalli County Attorney’s Office, “unwilling to put a response in writing, informed this firm in a phone call” that the Board was not going to respond to the firm’s October 9, 2020 letter; the Board was not going to take any steps to remove the illegal gate across the road despite successfully defending its prior mandate twice at the Montana Supreme Court; and “instead, Ravalli County is now planning to defend against a mandamus lawsuit on the basis that removing the gate is a threat to public health and safety, as a result of the landowners’ threats of violence toward anyone who attempts to remove the gate.”
“Furthermore, the Ravalli County Sheriff’s Office has indicated it will require a court order before it will lend peace-keeping assistance to those who perform work to remove the gate. In short, Ravalli County acknowledges it has a clear legal duty to remove the gate that is blocking public access to public land and waters. Nonetheless, the County refuses to act. Instead, the County is surrendering to the vigilantism of a few menacing landowners along the Road who flout Montana law and threaten harm to anyone trying to remove the gate or access the Road. That lawlessness must not be condoned.”
The organizations claim that “because Ravalli County and its County Attorney are refusing to preserve public access by taking the necessary steps to remove the gate and prosecute those thwarting the law, the State is responsible to rectify this dire situation.”
“Any failure to act by the State will not only violate the public’s right of access to the public lands and waters accessed by Hughes Creek Road, but it will also constitute a complete abdication of your charge to maintain law and order in Montana.
“Neither the State nor Ravalli County should condone these illegal actions. To do so would defy norms essential to maintaining a civil society and would be a tacit endorsement of lawlessness and mayhem. Yesterday’s actions at the U.S. Capitol demonstrate how quickly the mob can seize control when our political leaders fail to enforce the rule of law.
See Gov, page 15
“Regardless, the public coffers should not have to fund potentially expensive litigation to compel compliance with the law, especially after the taxpayers already paid to establish Ravalli County’s right/obligation to remove the illegal gate. The State must exercise its authority, to the full extent of the law to ensure that those who threaten public safety are held to account.”
“I don’t know what’s going on with that,” said Ravalli County Sheriff Steve Holton when contacted by the Star. “I’ve largely stayed out of that. A couple of years ago I did kind of take a stand with the county attorney’s office as well. The commissioners wanted the Sheriff to go open the gate, I think in 2017, and I said no, that I would need a court order, just like everything else in the world.
“In the letter they claim that the Sheriff will not keep the peace without a court order and that’s wrong and they certainly never asked me. I’ve said all along that I will do everything I can to keep the peace. That’s my fear is that something bad is going to happen when that gate comes out.
“We will do whatever is needed to keep the peace. I don’t mind doing civil standbys or whatever has to be done to that end. So my response to that letter will be that I don’t know where you got that idea, but you never talked to me,” said Holton.
He said in regard to opening the gate, “I believe that’s the Commissioners’ decision. That’s my understanding, that something’s got to shake out there. I know that they set some deadlines and then allowed a couple of appeals. I don’t know what’s going to happen. I’m just waiting for the fall-out because I will probably have to deal with it.”
“My biggest fear especially in this political climate is that we are going to attract a bunch of people from out of the area who are going to try to make a statement. I really don’t want that to happen,” he said.
“I’m still hopeful that everyone will take a deep breath and step back,” said Holton. “After all, the Supreme Court has ruled on it now. That’s the law and that’s just the way it’s going to be, and I just hope that everybody that gets access and goes up there can stay on the roads and stay off of other people’s property and use the access for what it is.”
Jeff Burrows, Chairman of the Board of County Commissioners, said that the Board was really waiting on guidance from the County Attorney’s office on the letter. He said he thought the letter pretty much described the situation as it has developed.
He said there were issues about signage and everything and they were trying to work with the landowners and the Forest Service because behind the gate there were only a few points where public property touched the road. “We wanted to make sure it wasn’t a free-for-all if we opened the gate. We wanted to have a plan.”
“I talked to the landowners,” said Burrows, “but they did not want to come up with that plan and, honestly, with COVID-19 it went on the back burner,” he said. “Now this letter has re-kindled this and we need to figure out how we are going to respond so we are consulting with legal counsel.”