April 2016

“The time has come the Walrus said, to speak of many things”. We in the Public Land Water Access Association (PLWA) say, “OK let’s speak about roads.”

As the reader might know, our organization has been dealing with road and trail access to public land and water for over thirty years. We are aware of some unresolved problems with roads and their status as we have fought many of these access battles.

There are a number of roads that exist as established County Roads, but have been blocked gates or other obstacles. Many have been blocked for years. This is a violation of state law. Short of an emergency such as flood, fire, or needed repairs County Commissioners have no authority to allow any man-made obstructions to exist on County Roads.

In the court case on the Tenderfoot Road in Meagher County where Commissioners claimed it was within their authority to allow a County Road to be closed, the judge in this case informed the Commissioners that the laws that prohibited obstruction of County Roads are state laws and the Attorney General of Montana retained the final responsibility to enforce state law. He also made it clear that lack of maintenance or use does not void the road surface or the sixty foot easement. Only a formal abandonment process can change the status of a County Road.

Here is one of several Laws that deal with encroachments on County Roads:

7-14-2135 “Notice to Remove Encroachments”.

(1)” Notice to remove the encroachment immediately, specifying the breadth of the highway and the place and extent of the encroachment must be given to the occupant or owner of the land or the person owning or causing the encroachment.”

Another applicable law, 7-14 2134 states;

“If an encroachment obstructs and prevents the use of the highway for vehicles, the road supervisor or county surveyor shall immediately remove the encroachment.”

PLWA requests that action be taken to open these roads as soon as possible and that fines be imposed as written into the statute, both for closing the road and possibly for damage to the road surface and the easement behind the closure. Ignorance is no excuse for violating the law. County Commissioners are subject to this pronouncement as well as the violator who installed the locked gate. In fact, we would like to remind Commissioners that they were elected to manage the road systems in their county. This is part of their job.

A second problem exists regarding many roads that have never been designated as County Roads but have long been used by the public as if they were. Some have a history of substantial public investment, including maintained with tax payers money. Many also have culverts and bridges installed with public funds.

These roads are vital to the transportation system within the county, especially now that fire seasons are longer and more severe and might require evacuations.

Yet these same roads are vulnerable to private closure.

PLWA cannot afford to challenge these closures such as the Boadle Road in Teton County. We encourage counties to inventory these roads and identify those that are needed to protect life and property.

In fact, the Montana Wildlife Federation introduced legislation during the last two sessions to do just that. But those bills failed to get out of committee. We will try again next time.

John Gibson
PLWA President