Cherry Creek / West Deer Creek Road Summary

The Cherry Creek Road, nine miles south of Big Timber, east off of Highway 298, crossed about a quarter-mile of Lee Smoot’s property and then three-quarters of a mile of George Matelich and Michael Goldberg’s ranch before reaching the Gallatin National Forest boundary – and 16,000 acres of public land. The Public Land/Water Access Association had filed suit against the people responsible for closing Cherry Creek Road in Sweet Grass County. PLWA held the public had a prescriptive easement to the Gallatin National Forest land behind the closure.  PLWA agreed to drop the lawsuit if the landowner would allow public access to the road for the next ten years. At that time PLWA did not have the funds to pursue a lawsuit. “As President and Vice President of the Public Land and Water Access Association, Bernard Lea and I go back some thirteen years on the Cherry Creek access south of Big Timber. We filed suit when the Cherry Creek Road was first closed to the public. Later we had to agree to a deal because we did not have the funds to continue our lawsuit.The landowner offered to leave the road open for ten years and pay our court costs if we would drop the law suit. Our lawyer recommended that we accept that proposal.”

During the 10 years, no resolution was achieved with the Forest Service. Right after the 10 years ended, the landowner, closed access again.

In December 2013, the FS Yellowstone District Ranger Alex Sienkiewicz published their West Deer Creek Road Realignment Project Environmental Assessment, open for public comment. In July 2014, Yellowstone District Ranger Alex Sienkiewicz stated he had reached a settlement with the landowners, providing around a mile of permanent access through their land from State Highway 298 to the National Forest.

Landowners George Matelich and Michael Goldberg agreed to build a new road – the West Deer Creek Road west of the Cherry Creek Road – at their own expense to prevent the public from passing so close to their home.

July 15, 2015, the gate barring public access to the West Deer Creek area of the Custer-Gallatin National Forest, south of Big Timber opened, restoring access to more than 16,000 acres of public lands. PLWA played a key role in early efforts to keep public access to this area.

The newly constructed bypass road was named, “West Deer Creek Road”, (Forest Road #421, known locally as the Cherry Creek access). The new road provides a permanent public route on the Yellowstone Ranger District by replacing part of the old, now-private Cherry Creek Road. The West Deer Creek Road will provide permanent year-round access, including: dispersed camping in the Lower Deer Creek vicinity, hiking options on several forest trails such as Tomato Can Trail No. 156, Middle Fork No. 112 and West Fork of Upper Deer Creek No. 108, along with several spur connector trails.

Find summaries about the access issue here:

Cherry Creek Area Proposal

West Deer Creek Proposal

UPDATE: July 2015

West Deer Creek Road Now Open

On Wednesday, July 15, 2015, at 9:00 A.M., the gate barring public access to the West Deer Creek area of the Custer-Gallatin National Forest, south of Big Timber, swung open- thus restoring access to more than 16,000 acres of public lands. PLWA played a key role in early efforts to keep public access to this area.

The gate is across a newly constructed bypass road named, “West Deer Creek Road”, (Forest Road #421, known locally as the Cherry Creek access). The new road provides a permanent public route on the Yellowstone Ranger District by replacing part of the old, now-private Cherry Creek Road.

Last fall, the Forest Service and two landowners reached a joint agreement for a permanent public access easement across the West Deer Creek Road. The Forest Service and partners, including the Public Lands/Water Access Association (PLWA), have worked for years to restore the primary access route into the National Forest nearest to Big Timber. The road is located south of Big Timber, directly off the Main Boulder Road at mile marker 10.

“Both the landowners, Mr. Matlich and Mr. Goldberg, as well as the Gallatin National Forest employees deserve much credit for finding a workable solution,” said John Gibson, President of PLWA.

In 1989, the Public Land/Water Access Association had filed suit against the people responsible for closing the road, Gibson explained. PLWA believed the public had a prescriptive easement to the National Forest land behind the closure. During mediation, PLWA (then known as Public Land Access Association Inc.) agreed to drop the lawsuit if the landowner would allow public access to the road for the next ten years. The landowners agreed and offered to pay all the legal bills. “Bernard Lea and I had recently taken over the leadership of PLAAI and the organization was broke at the time, and we thought the Forest Service could come up with an alternative access within ten years,” said John Gibson, President of PLWA.

“No alternative was found, however, and ten years later the landowners closed the road,” Gibson said. “The Gallatin National Forest Supervisor then considered condemnation to gain access to the land, but Senator Jon Tester advised against condemnation and offered to try to work out a better alternative,” Gibson said. “After several months of negotiation, the landowners agreed to build a new road across their land that would connect with the old road beyond the point where it reached the National Forest. This was recently accomplished.”

Alex Sienkiewicz, Yellowstone District Ranger, also praised the willingness of stakeholders to work toward a public access success. “This opening recognizes years of ongoing work. I would like to thank those that have worked hard to resolve issues and facilitate access to public lands for all American citizens to enjoy,” he said. “Road and trail crews have worked throughout the spring reestablishing routes, as many of the roads and trails have undergone a decade or more without maintenance.”

The new access on the West Deer Creek Road will provide for permanent year-long opportunities in the area, including: dispersed camping in the Lower Deer Creek vicinity, hiking options on several forest trails such as Tomato Can Trail #156, Middle Fork #112 and West Fork of Upper Deer Creek #108, along with several spur connector trails.

All trails in the area are open to foot and stock use and some area trails are open to biking and motorized use. A free Motor Vehicle Use Map (MVUM) is available at your local ranger district or for download on a mobile device, with the Avenza app and at www.fs.usda.gov/custergallatin .

The Central Zone Forest Visitor Map does reflect those newest changes and visitors are encouraged to use the motor vehicle use map. The area is popular for significant vistas, hunting, primitive and backcountry hiking opportunities and dispersed camping. For more information, contact the Yellowstone District Office at 406-222-1892, for general information visit the forest service website.

Custer Gallatin National Forest

Release Date: Jul 13, 2015

Big Timber, MT– On July 15, at 9:00 a.m. the West Deer Creek Road (Forest Road #421, known locally as the Cherry Creek access) on the Yellowstone Ranger District will be re-opening, replacing Cherry Creek Road and providing a permanent public route along with restoring access to over 16,000 acres of National Forest System lands.  Last fall, the Forest Service and two landowners reached a joint agreement for a permanent public access easement across the West Deer Creek Road.  The Forest Service and partners, including the Public Lands/ Water Access Association (PLWA) have worked for years to restore access to the closest primary access route into National Forest System lands from Big Timber.  The road is located south of Big Timber, directly off the Main Boulder Road at mile marker 10.

“This opening recognizes years of ongoing work.  I would like to thank those that have worked hard to resolve issues and facilitate access to public lands for all American citizens to enjoy,” said Alex Sienkiewicz, Yellowstone District Ranger.  “Road and trail crews have worked throughout the spring reestablishing routes, as many of the roads and trails have undergone a decade or more without maintenance”

The new access on the West Deer Creek Road will provide for permanent year-long opportunities in the area including:  dispersed camping in the Lower Deer Creek vicinity, hiking options on several forest trails such as Tomato Can Trail #156, Middle Fork #112 and West Fork of Upper Deer Creek #108, along with several spur connector trails.  All trails in the area are open to foot and stock use and some area trails are open to biking and motorized use.  A free Motor Vehicle Use Map (MVUM) is available at your local ranger district or for download on a mobile device, with the Avenza app and at www.fs.usda.gov/custergallatin.  The Central Zone Forest Visitor Map does not reflect these newest changes and visitors are encouraged to use the motor vehicle use map.  The area is popular for significant vistas, hunting, primitive and backcountry hiking opportunities and dispersed camping.  For more information, contact the Yellowstone District Office at 222-1892, for general information visit online at:  www.fs.usda.gov/custergallatin.

UPDATE: June 2013

SETTLEMENT REACHED ON “CHERRY CREEK” ROAD. YEARS OF PLWA EFFORT PAY OFF - OUTSTANDING COOPERATION BY FOREST SERVICE AND LANDOWNERS

After years of negotiations, legal action, and public comment, settlement has been reached on regaining permanent access via a new public access route to National Forest System lands in the Cherry Creek area, south of Big Timber, Montana.

The landowners Mr. George Matelich and Mr. Michael Goldberg have reached an agreement with the USDA Forest Service to jointly construct a new road approximately ten miles south of Big Timber that will provide permanent public access from State Highway 298 to NFS lands. This will open up about 16,000 acres of public land heretofore only accessible a long, challenging foot, horseback, or motorcycle trail from the East side of the divide.

The planned road will be identified as West Deer Creek Road No. 421. Access will include reasonable public motorized use. Construction standards will be sufficient to accommodate year-round truck and stock trailer use.

The landowners will build the first portion of the new road across their land. When the road is complete to agreed-upon standards across the private land, Mr. Matelich and Mr. Goldberg will grant and donate an easement for the constructed road to the United States.

If public scoping and environmental review support the proposed work, the Forest Service will continue building the new road as it enters the national forest and will tie the new road into the existing Forest Service road system.

The landowners and the Forest Service are committed to completing construction and recording the road easement in a timely manner.

The new road will not be available for public use until construction on both private and public land is totally complete. Upon completion, the Forest Service will notify the public and the landowners will close the old road across private property to public use.

The Forest Service will be responsible for management and maintenance of the entire new road.

For more information: contact Yellowstone District Ranger Alex Sienkiewicz, at 406-932-5155.

Comment from PLWA President John Gibson

“As President and Vice President of the Public Land and Water Access Association, Bernard Lea and I go back some thirteen years on the Cherry Creek access south of Big Timber. We filed suit when the Cherry Creek Road was first closed to the public. Later we had to agree to a deal because we did not have the funds to continue our lawsuit. The landowner offered to leave the road open for ten years and pay our court costs if we would drop the law suit. Our lawyer recommended that we accept that proposal.

Since then, the Forest Service, under the leadership of Supervisor Mary Erickson and Lands Staff Bob Dennee have found a way to gain access to the 16,000 acres of National Forest land behind the closure. They deserve much credit for working out the details that will allow the public to once again access this special place. But we also must thank the landowners, Mr. Matelich and Mr. Goldberg for spending the time and money to reopen this access.”

UPDATE: August 2011

Reprinted with permission from the Harlowton Times Clarion – August 23, 2011.

Re: Recent Commissioners Meeting

The commissioners also discussed major damage on Swimming Woman Road.
County Commissioner Tony Zinne said he had met with Randy Waterman, who leases the Lazy S Ranch that the washed-out county road passes through, a representative of the management company for the Lazy S and a Forest Service official. They toured the area and discussed an alternate route on the west bench that would move the Swimming Woman Road from the bottom and end within walking distance of the Forest Service.

Commissioner Paugh, who oversees the north commission district, stated the commissioners could not consider the matter because there hasn’t been a petition filed seeking road closure or moving the road. The interested parties have not come to the commission with their request. So at this time, he said, all the county can deal with is repairing the existing road.

The county has found documentation that in 1933 the landowners had sought and were given approval to establish a county road through the private property passed what was later the home of Guy Webber. The purpose of the road was stated to be to provide access to the forest reserve.

The engineer hired by the county had recommended that the first washed-out culvert on the road be replaced with a larger, squashed version to carry more water. To do that a flow study must be completed as to the effects downstream.

Further up the road a bridge washed out and the creek cut a new channel down the existing road for several hundred feet. The county discussed asking FEMA for approval of an alternate route rather than what would be a more costly return of the road to its natural state. Also, with the creek moved, other issue could come into play.

The county is looking at either moving the road to the west after the first culvert and away from the creek or alongside the previous road to the east, which could be vulnerable to future flooding.

County Attorney Kent Sipe advised the commissioners to stake out the new route deemed be the best and notify the landowner that the road would be changed. The owner could then meet with the commissioners at the next regular meeting if there are concerns. Sipe advised that the right-of-ways of record give the county the authority to continue to provide a road to the forest.

Commissioner Paugh, sheriff Fisher and the engineer were to visit the site Tuesday and ask the engineer to give his opinion as to the best route to take and also look at the flow issues for the new culvert.

Contact Shirley Wagner 406-575-4431 at the Clarion Times.

UPDATE: October 2010

Posted with permission from the Billings Gazette, October 29, 2010

Guest Opinion: Learn where candidates stand on public access to public land

by Bernard Lea

Citizens of the United States of America cannot travel from the Gulf of Mexico to the Canadian Border or from the Pacific Ocean to the Atlantic Coast, without crossing private property on an easement granted by that private landowner to the public. Think about it, the minute you leave your private property you enter on to an easement granted from a private landowner to a public entity that allows you to travel across the private land. This is why the question has to be asked: Why are the last few miles to the public land closed to the public?

This is the case with Cherry Creek road south of Big Timber. The road history dates back to 1898. A ranger station was erected adjacent to the road on NFS land in about 1908 and torn down around 1930. The 1987 Gallatin National Forest Plan designates this access as a necessary national forest access. Since the late 1890s, there has been Forest Service administrative use and public recreational and commercial use of this road to access national forest lands. A Forest Development Road Cooperative Agreement between the Forest Service and Sweet Grass County from 1967 that designates the responsible party for maintenance on the entire length of the road.

Negotiations
Negotiations by Gallatin National Forest have been ongoing for seven years, offering a purchase, an easement purchase with additional cash or a land exchange. (All the state and federal land agencies have been great.) The landowners have been gracious and have been willing to listen to options, but no agreement has been reached.

In November 2007, the Forest Service prepared a “range of options” briefing paper to consider alternatives to regain the lost access into the Cherry Creek area. The only option left for the Forest Service to obtain an easement for an existing road across the private land, approximately one mile, is to use eminent domain. Before this process can be presented, a thorough analysis has to be completed. This process has been completed and is on file at the Gallatin National Forest office in Bozeman. It has been forwarded to the Department of Agriculture in Washington D. C. and is awaiting support from Sens. Jon Tester and Max Baucus and Rep. Denny Rehberg.

1 more try
In the interim, the Sweet Grass County Commissioners have agreed to make one more try with the landowners and see if they will grant them a public road easement for the road, which they are doing this month. I appreciate their willingness to engage in this issue, and hope for the best, however, if that is not successful, I will have no choice but to continue to press for condemnation to provide for public access, as everything else has been tried. It’s important that the public speak to their elected officials to let them know their interest in this access.

Before you vote please contact Rep. Rehberg and Dennis McDonald and ask their position on this situation. Also contact Sens. Tester and Baucus and ask them to support the Gallatin National Forest in this endeavor.

Bernard Lea of Billings is a member of the board of directors for Public Land Water Access Association.

UPDATE 1: June 2010

The Cherry Creek Road nine miles south of Big Timber, east off of Highway 298, crosses about a quarter-mile of Lee Smoot’s property and then three-quarters of a mile of George Matelich and Michael Goldberg’s ranch before reaching the Gallatin National Forest boundary – and 16,000 acres of public land. (Matelich and Goldberg, as we understand it, are Wall Street executives.) Years of negotiations have failed to gain access and the Forest Service is pursuing an easement through using “eminent domain”.

Here is the status of that action as of June 2010, as we understand it:

U.S.F.S. is briefing agency leadership, and then, because of a rider to the current Forest Service appropriations bill for the FS, they must get approval of the House and Senate Appropriations Committee before it is taken to the Undersecretary of Agriculture for final approval.

Here is the process:

1) The F.S. must brief the Chief in the next few weeks, disclosing that Matelich, Goldberg and Smoot are not willing to negotiate, despite repeated attempts and that eminent domain is the only option to provide public access.

2) After the Chief is briefed, they then brief the Montana Congressional Delegation (Baucus, Tester and Rehberg). If any one of them opposes the action, the House and Senate Appropriations Committees will not approve it. If they do oppose it, however, the issue will be dead. This is why it is so important for folks to contact the delegation NOW and write letters to the editors NOW, so the delegation understands that there is widespread public support for access.
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3) If there is no opposition from the House and Senate Appropriation Committees, then it will be forwarded to the Undersecretary of Agricultural for Natural Resources and Environment (Harris Sherman) for approval. (A package of staff work, like some additional surveys, appraisal, etc. will need to be done at that point as well.) The delegation and the administration must know there is widespread public support for access to be willing to even consider this step. Once the package is completed and the Undersecretary signs the declaration of takings and Matelich, Smoot and Goldberg receive just compensation for the easement, the title vests in the United States and the road will be open.

If Matelich, Goldberg and Smoot come back at any time to with a proposal to negotiate for public access, the Forest Service will do that, and the eminent domain proceeding will be put on hold until the negotiations are completed. In June of 2010 , they proposed allowing foot, horse, and mountain bike travel on a permissive basis. PLWA strongly opposes condoning that offer. We need the permanent access! (The Matelich, Goldberg and Smoot proposal of June 2010 is appended below.)

SO, IF YOU CARE ABOUT THIS ACCESS, TAKE ACTION NOW ! CALL, WRITE OR EMAIL THE DELEGATION. REHBERG IS ESPECIALLY IMPORTANT AS HE COULD IN EFFECT VETO THE ACTION.

All of the information and addresses of the congressional delegation and Montana newspapers are listed on our website www.plwa.org . Look for the “Take Action” tab on the left.

Matelich, Goldberg and Smoot proposal of June 2010

FOREST ACCESS OPEN

Beginning June 30th 2010 the owners of Black Butte Ranch and the Smoot/Perkins properties are granting permission for access to the National Forest lands via foot, horse and mountain biking travel. you may access National Forest lands using the Cherry Creek trail after completing an access permission form at the trailhead. Limited parking will be available. No motorized travel beyond the parking area is permitted. The Cherry Creek access trail has been determined by the courts of Montana to be private property, this permission is granted by the property owners voluntarily and subject to certain restrictions, as follows:

• Complete a permission card with the names of those in your party, vehicle identification, and information about your use of the trail. So that we may know who is traveling across our property, please complete a permission card each time you use this access route.

• Please park only in the designated areas. Vehicles parked outside designated areas are subject to being towed or otherwise impounded, and the users may be refused future access via this route.

• This access route is available only for travel on foot, horseback or mountain bike. No motorized use is permitted.

• This access route is for use to access the National Forest lands only; no other uses, including picnicking, camping, cooking, target practice, hunting or fishing are permitted on the Black Butte Ranch or the Smoot/Perkins property. the National Forest boundaries are clearly marked and you are responsible for knowing whether you are on Forest lands or private lands.

• No open alcohol containers are permitted on this access route.

• Firearms must be unloaded and contained when transporting them across this access route.

• No fires or smoking are permitted on this access route.

Please be a good neighbor. Take nothing except memories; leave nothing except your footsteps. Pack your trash out, and take along any trash left by others.

Owners reserve the right to refuse access at any time.
Violations of the above conditions may result in revocation of permission to use this access route, and or criminal/civil action against violators.

UPDATE 1: June 2010

TAKE ACTION TO OPPOSE LANDOWNER PROPOSAL

LANDOWNERS PROPOSE WATERED DOWN ACCESS

In the latest development on this road , the landowners are proposing what amounts to temporary restricted access on their terms. PLWA believes this is completely unacceptable. It would prevent most big game hunters from effectively hunting on the national forest, prevent the Forest Service from effectively doing their job, keep out all but the young and hearty, and completely eliminate the use by the handicapped.

The Cherry Creek Road nine miles south of Big Timber, east off of Highway 298, crosses about a quarter-mile of Lee Smoot’s property and then three-quarters of a mile of George Matelich and Michael Goldberg’s ranch before reaching the Gallatin National Forest boundary -“ and 16,000 acres of public land. (Matelich and Goldberg, as we understand it, are Wall Street executives.) Years of negotiations have failed to gain access and the Forest Service is pursuing an easement through using -œeminent domain-.

In June of 2010 , Matelich , Goldberg, and Smoot proposed allowing foot, horse, and mountain bike travel on a permissive basis. Here is what they offer:

Matelich, Goldberg and Smoot proposal of June 2010:

FOREST ACCESS OPEN

“Beginning June 30th 2010 the owners of Black Butte Ranch and the Smoot/Perkins properties are granting permission for access to the National Forest lands via foot, horse and mountain biking travel. you may access National Forest lands using the Cherry Creek trail after completing an access permission form at the trailhead. Limited parking will be available. No motorized travel beyond the parking area is permitted. The Cherry Creek access trail has been determined by the courts of Montana to be private property, this permission is granted by the property owners voluntarily and subject to certain restrictions, as follows:

- Complete a permission card with the names of those in your party, vehicle identification, and information about your use of the trail. So that we may know who is traveling across our property, please complete a permission card each time you use this access route.

- Please park only in the designated areas. Vehicles parked outside designated areas are subject to being towed or otherwise impounded, and the users may be refused future access via this route.

- This access route is available only for travel on foot, horseback or mountain bike. No motorized use is permitted.

- This access route is for use to access the National Forest lands only; no other uses, including picnicking, camping, cooking, target practice, hunting or fishing are permitted on the Black Butte Ranch or the Smoot/Perkins property. the National Forest boundaries are clearly marked and you are responsible for knowing whether you are on Forest lands or private lands.

- No open alcohol containers are permitted on this access route.

- Firearms must be unloaded and contained when transporting them across this access route.

- No fires or smoking are permitted on this access route.

Please be a good neighbor. Take nothing except memories; leave nothing except your footsteps. Pack your trash out, and take along any trash left by others.

Owners reserve the right to refuse access at any time.
Violations of the above conditions may result in revocation of permission to use this access route, and or criminal/civil action against violators.”

End of Proposal

PLWA strongly opposes condoning that offer. We need the permanent access!

SO, IF YOU CARE ABOUT THIS ACCESS, TAKE ACTION NOW ! CALL, WRITE OR EMAIL THE DELEGATION. REHBERG IS ESPECIALLY IMPORTANT AS HE COULD IN EFFECT VETO THE ACTION.

Cherry Creek / West Deer Creek Road in Pictures & Maps