By Michael Howell
On Wednesday, January 25, after a few hours of discussion, the Ravalli County Commissioners denied a petition to abandon the upper reaches of Hughes Creek Road and ordered the landowners to take down the gate that has blocked the road for the last 40 years. Although a Viewers Report recommended accepting the petition and two commissioners voted in favor of accepting it, the remaining three voted against the petition, primarily based on the determination that the portion being petitioned for abandonment was a public road that accessed public land. According to Deputy County Attorney Howard Recht, state law prohibits the county from closing a public road that accesses public land or public water unless there is an alternative route that provides “substantially the same access” as the road being abandoned.
There was much public comment pro and con and a handful of attorneys offered varying opinions. Recht presented a brief history of the road, saying that it was first adopted as a county road in 1900 and extended east from the Alta Post Office 12 miles up Hughes Creek to the Woods Place Mining Company claims. Recht said it was adopted as a state highway and thus has a sixty-foot easement associated with it.
In 1978, however, a gate was installed about eight and a half miles up blocking off public access to the upper portion. It is landowners now living above that locked gate who are seeking the abandonment. Recht said that a petition to abandon the upper reaches of the road was made in 1982. He said that petition was denied and the landowners were ordered to open the gate. When the gate didn’t come down the commissioners took the matter to court. Recht said it “languished” for ten years with no action before finally being dismissed without prejudice.
Some of the landowners argued that there was no true access to the trailhead from the road and the only other access it might provide, where it traverses Forest Service property, was very narrow and would not provide any parking and only accessed a very steep hillside with no trail.
The latest effort to open the gate, which led to the filing of the petition by the landowners, was spearheaded by former Forest Service Supervisor Dave Campbell. The Forest Service submitted evidence and a letter claiming that, in their analysis, the gate was illegal and should be taken down. The Forest Service supported the fact that the upper reaches of the road did provide public access to about 10,000 acres of forest and that there was no alternative access that provided “substantially the same access.”
Despite the evidence presented, Commissioner Doug Schallenberger, who voted to accept the petition, said, “I feel like we are granting public access to private land. I can’t help it. I feel like even if the road does touch public land, it is not good access. Legally I can see where this is going, but the access isn’t good.”
Commissioner Ray Hawk, who voted along with Schallenberger to accept the petition, said, “I agree with Doug. These people have enjoyed private access for forty years. Now we want to come along and deny it. I can’t do it.”
For Commissioner Chris Hoffman the law was clear and it was a matter of law. He said, “based on the findings of fact and the historical background” it was clearly a public road and did provide access to public land and water.
Commissioner Jeff Burrows said that the evidence supported the fact that the road was public and provided access not only by crossing onto forest land but also by crossing a few creeks. Although a couple of the landowners had disparaged the fishing in the area, saying the few fish caught generally weren’t larger than 3 inches, Burrows said, “The law doesn’t give me the authority to decide if someone is going to walk straight up a steep hill or not, or catch a 3” trout or not. It’s just not my authority.” He said it was definitely a conflict between public access and private property, “but in this case the law guides me towards denying the petition.”
Commissioner Greg Chilcott said that he dealt with private property and public access issues at his house along the river. But he also noted that maintaining public access was part of the county’s Natural Resource Policy.
“The fact is we have determined that it is a 12 mile long public road and statutes limit our discretion in abandoning it,” he said.
Following the denial of the petition the commissioners considered as a separate matter the issue of the gate. Chilcott asked the board if they believed the gate was a legal encroachment on the road as defined in the law and the full board agreed that it was.
“This should have been taken care of a long time ago,” said Hoffman. “The problem started when the road was closed outside the law and the gate is still there outside the law.”
Although the law states that an encroachment, once identified as such, must be removed “immediately,” the Commissioners hesitated at demanding immediate compliance, especially given the frozen ground and the need for some signing.
Chilcott expressed his reluctance to “kick the can down the road any further.”
After some discussion with a couple of the landowners it was decided unanimously to order the landowners to remove the gate within the next 120 days.