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Public Access Issues

Jen Adams ,


Most Montana outdoor enthusiasts are unaware of the 30 year history of PLWA accomplishments - even though all have benefited and all will benefit from many years to come. If you are not a member, consider joining. If you are a member, please pass the word on to your friends . Here are just a few of the reasons why :

Montana Stream Access Law - The best in the west. In the late 1970's, harassment of anglers and floaters on the Dearborn and Smith Rivers led to a lawsuit by PLWA founders . Their decision that "The public has the right to use Montana's rivers and streams that are capable of recreational use, up to the ordinary high water mark." led to the current law .

State School Trust Lands Opened for Public Access - Montana has 5.2 million acres of school trust public lands which are leased for agriculture and logging. Prior to 1988, permission from the lessee was required to recreate on these lands. In that year, PLWA founders sued to open these lands. When the effort foundered, they sponsored successful legislation to open them for recreational use. It also indirectly opened millions of acres of adjoining acres of federal land.

Stopping Illegal Road Closures - PLWA has a long history of case-by-case fighting against specific closures. Hundreds of thousands of acres of public lands access have been opened or preserved by our actions and perseverance. PLWA is usually the only entity taking direct legal action to stop these closures.

Recreational Access at Bridges. Just because we have a stream access law does not mean we have access at bridges. In a famous case a private party electrified and fenced off bridge abutments on his property. PLWA fought the case and is still fighting the case. But a decision on 2 of the bridges resulted in the 2009 bridge access law. This law insures access to thousands of miles of streams and rivers.

Seyler Lane Update

     The Saga Continues
9/24/2015Seyler Bridge Easement - More Than Just RecreationUpdate - Kennedys attorney requested a postponement of the September 21 hearing. A future hearing date has yet to be determined.It has been over a decade that PLWA (formerly known as PLAAI) has been involved in a lawsuit over public access to the Ruby River from Seyler Lane and the Seyler Bridge, a county road right-of-way in Madison County. In January 2014, the Montana Supreme Court reaffirmed Montanas Stream Access Law, clarifying that the public may use the entirety of the public prescriptive easement right-of-way for all lawful public purposes. It also remanded the Ruby River action back to the District Court to determine the "definite width of a single, unified" public road right-of-way that was not determined at the previous trial. Per the Supreme Court, the width must include whatever land is "reasonably necessary" to maintain and support the established public road and bridge and the land that has historically been used by the public. This was a great victory for PLWA and the public.   ... (more)

Tenderfoot - Four Years and Counting

     Un-Privatizing the Tenderfoot Road
9/24/2015Tenderfoot Creek is a tributary of the Smith River, joining the Smith a mile or so north of Camp Baker. The road is an established county road and a numbered Forest Service road, dating all the way back to 1899. Despite the long public access history of this road, when rancher Howard Zehntner bought the surrounding land, he gated the road and erected a "Road Closed" sign. This Tenderfoot Road provided public access to some 8,000 acres of a prime habitat project being preserved by The Bair Ranch Foundation, Rocky Mountain Elk Foundation, the Tenderfoot Trust, and the Forest Service.This road closure came to PLWAs attention in September 2011, and after extensive investigation the issue came before the Meagher County commissioners the following May. When the Commissioners sided with private interests against the public, and Zehntner erected a new gate, the State of Montana, through the Attorney Generals office, filed action in district court in October 2012, requesting the Court acknowledge evidence of public access.The following year, after an initial presentation of supporting historical records and witness testimony, the Court ordered the gate opened and enjoined the ranch from blocking access until a final decision was issued.   ... (more)
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Madison County / Seyler Lane

Bridge and Stream Access Go to Supreme Court Again Hearing scheduled for April 29th, 2013 As members are aware, PLWA has appealed an April ruling by Madison County District Judge Loren Tucker that limits stream access from bridges on roads with historic prescriptive easements. (A prescriptive easement is one created by continuous public use.) In that ruling , the lower court said that the public doesn’t have the right of recreational access to the Ruby River from the Seyler Lane bridge – a bridge on an agreed upon prescriptive road . (The Ruby is a classic trout stream flowing north near Twin Bridges, Montana.) Essentially, he ruled that the public prescriptive right-of-way for most uses was just for the roadway surface – not the borrow pits or bridge abutments, and that prescriptive use did not include recreational use. PLWA believes that the right-of-way is the full 60 feet and that recreational use is allowed just like any other legal use. Based on consultations with PLWA lawyer Devlan Geddes of the Goetz law firm, we are optimistic about chances on appeal.   ... (more)
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Deadman and Anderson Roads

     Helena National Forest
10-18-12Courtesy of the Montana Wildlife Federation publication "Montana Wildlife". ACCESS TO PUBLIC LANDS BEING THREATENEDDick Paulsen, Executive DirectorMontana Wildlife FederationAccess to public lands is a major issue the Montana Wildlife Federation and is an issue our affiliates work on each day. Being relatively new to the organization I was pleased to join MWF members Bill Orsello and Stan Frazier for a field trip and personally assess a recent closure of two public roads on the same property. The property owner closed, gated and signed the Deadman and Anderson Roads. Deadman road is also known as Forest Service Road 774a1. The Anderson Road is a county road. The Lewis and Clark County commission was approached by the landowner and convinced to provide an encroachment permit under the landowners assertion that alternate public access was available via the Forest Service road.   ... (more)

Tenderfoot Acquisition Advances

     Updated 8-27-2012
Tenderfoot Acquisition AdvancesThis is truly one of the most significant public access actions by a government agency - working with private entities - of all time. Think about it , nearly 8,200 acres of prime central Montana mountain and foothill country , and adjoining public land ,eventually to be open . This is open for all public uses - including forest management and fire suppression.PLWA has been involves with this from the outset : lobbying for Land and Water Conservation Fund appropriations, and working with Forest Service officials .President John Gibson serves on the advisory board of the Montana Fish and Wildlife Conservation Trust which provided part of the funding.Sportsmen often take things like this for granted. But they don't just happen on a whim or stroke of a pen.   ... (more)

Sixteenmile Creek

     Important new Fishing Access Site
Updated June 1,2013Efforts underway since 2006 to acquire 5 miles of railroad right-of-way stretching west from Ringling along Sixteen mile Creek, and accessing an otherwise isolated section of DNRC land for another mile, are now nearing conclusion. Funding has been provided by the Montana Fish and Wildlife Conservation Trust, and the land is under contract with the Western Rivers Conservancy to act as an intermediary. It's now up to Montana Fish Wildlife and Parks to complete the land acceptance process and close the dealHowever, .we understand local landowners appealed the EA with FWP, and have raised legal issues challenging validity of access to property. We understand the Conservation Trust running out of patience with funding commitment. At best we may have one more year to make this happen. Past public support from sportsmen for this project has been overwhelmingly positive, and essential in moving it forward.   ... (more)
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Teton County Road No. 380 -

     County set for fight over county road
Old County Road No. 380 - "Salmond Ranch Road "PLWA, has been very involved with this . John Gibson and folks from the Russell Country Sportsmen, have made several trips to the location. It is a very complicated situation in that there are several roads involved all with somewhat different status. Tim Callahan, a former local from the area. and now a Seattle attorney, has been a great resource. We owe him much for his dedicated professional efforts.   ... (more)
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Tenderfoot Creek Area Land Purchase

     8,200 Acre Public Land Access Opportunity
PLWA officers and President John Gibson have been active in advocating for this major access opening to both public land and water in central Montana. This is both by John's advancement of funding through his position on the the "Canyon Ferry Trust" advisory board, lobbying for funding through the Land and Water Conservation Fund, and working with Attorney General Bullock in regard to action on the closed gate. (Yup, it is a complex situation but don't give up - read on for more information. ) The Smith River canyon running from just north of White Sulpher Springs to just south of Great Falls, is one of great natural features of central Montana. The west side is mainly private land but the east side is primarily Lewis and Clark National Forest. The Tenderfoot creek runs into the Smith, and the South Fork Tenderfoot Creek road opens access to a large chunk of adjacent National Forest . A great opportunity exists to execute a land purchase which would open up even more of the National Forest and add to it.   ... (more)
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Rocky Mountain Front Roads

     Goldman Sachs Exec Blocks Access Roads
From The Great Falls Tribune - 9-8-2011Written byMICHAEL BABCOCK CHOTEAU — A "private road no trespassing" sign on Road No. 380, also known as the Salmond Ranch Road, on the Rocky Mountain Front west of Choteau, surprised former Montanan Tim Callahan.He first encountered the road closure in October 2009 while on a scenic drive in the area. At that time, there was just the sign saying the road was closed."We were out to see how close we could get to that part of the Rocky Mountain Front," Callahan said of the 2009 trip.Callahan was back recently to show John Gibson of the Public Lands Water Access Association and Dave Van Tighem of Russell Country Sportsmen in Great Falls the sign. But now, in addition to the sign, a new gate with a lock makes clear that Salmond Ranch Road is closed.   ... (more)
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Boadle Road - Nov 30 2010

     Court Action Goes On
Boadle Road - 2003 - 2012BOADLE ROAD COURT VICTORY10 year legal battle goes on- and on - and on !On Nov 30, 2010, Judge Nels Swandal of the Montana 9th Judicial District in Choteau Montana , decreed as follows: "The road located on Jones Property known as the Sun River Slope Canal Road ("Canal Road") , from the intersection with Boadle Road up to Pishkun Reservoir, is a Public Road and until abandonment may be used by the general public without interference from the owner of the underlying land". This simple declarative sentence sums up the result of legal action lasting over 10 years. It was a great victory for access advocates. Essentially the judge said the road was a "public prescriptive easement" and that PLWA had proved, "through clear and convincing evidence, that the public had used the road for about 70 years...." This finding took 10 years and 4 different court cases. Whew!   ... (more)
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Bullwhacker Road (2011)

(Blaine County 2011) In 2007 he Bullwhacker Road southeast of Havre was opened after several years of closure and controversy. The road which serves as the only reasonable access to over 50,000 acres of BLM and state land – much of it in the Missouri River Breaks, had been closed , or open only by landowner permission, for several years. Prior to that it had been used by land managers, ranchers, and recreationists for half a century. Thousands of dollars of public money had been spent on maintenance . PLWA (formerly "PLAAI" ) expert volunteers researched road history and developed voluminous documentation proving it to be a “ public highway”. This was presented to the County Attorney who agreed and issued an opinion to that effect which opened the road. However, in 2009 the owners filed suit in the 17th Judicial District court (Malta, MT) to overturn the ruling.   ... (more)
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Mabee Road

     Landowner /Outfitter Lock Blocks Access
Lock on Mabee Road in Fergus County Blocks Huge Public Land AreaDevelopments on Mabee Road CaseThe Fergus County Commissioners are still refusing to acknowledge that the Maybee road is a public road! We believe this is a serious abdication of their duty as public officials. We also believe the Fergus County Attorney has also abdicated his duties in this regard by allowing the county commissioners to go on with this denial of facts and law. The Mabee Road runs north from Roy, Montana in Fergus County, and provides sole road access to a large area of the Missouri Breaks National Monument and the CMR Wildlife Refuge. The road status is presently in legal limbo after a lock was put on a gate in 2007 by an adjacent landowner/ outfitter who asserts the road is private, not public. In 2009 PLWA prepared a presentation of the public records that show without question that the road existed prior to any homestead patents being issued in the vicinity, and is therefore an "RS2477" public road. The Fergus County Attorney gave a copy of our information to the landowner’s attorney who responded in an eight page document that argues the road is not an RS - 2477.   ... (more)
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Cherry Creek Road - Sweetgrass Cty

     16,000 acres of public land at risk
Cherry Creek Road 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.   ... (more)
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Hughes Creek Road

     Bitterroot National Forest
Hughes Creek Road The Hughes Creek Road, a county road located within the boundaries of the Bitterroot National Forest south of Darby, Montana, was recently closed by a private landowner. In May of this year , the Ravalli County Fish and Wildlife Association challenged this closure by researching county records and Commissioner’s Journals . They presented the County Commissioners and County Attorney with copies of the original road declaration making it a public road, a copy of the original Commissioners Journal, documentation on attempts to have it abandoned, the documented refusal by the County Commissioners to abandon it in 1982, and the history of the road up to October 19, 1988 . Our contact with the Bitterroot National Forest substantiates the claim of Ravalli County Fish and Wildlife and they tell us their findings have been submitted to the County Commissioners. The facts have now been presented and with patience we believe the public will prevail . This is an excellent example of what private citizens and organizations can accomplish to counter road closures. (Some of the early successes of PLWA were in Western Montana and Ravalli County as a result of citizen involvement of this type and cooperation with county Clerk and Recorder offices.   ... (more)
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Yellowstone River Islands & Access Roads

     Work in progress..
There are numerous islands on the Yellowstone River for which ownership is not clear. Initial research tells us some are being illegally claimed by private parties. Because of changes in the riverbed since the original meander surveys around the turn of the last century, ownership determination is best handled on a case by case basis . Our goal is to research all significant islands on the river, and determine public ownership. In addition we know many county and public roads leading to the river have been illegally closed . Each of these will require research and presentation to appropriate county commission .In 2008, PLWA was fortunate enough to get a grant from the Cinnabar foundation to study island ownership on the river -primarily in Yellowstone county.   ... (more)

Boadle Road - 2003 -2010

     June 2010 Hearing
Choteau County - A LONG COURT BATTLE The Boadle Road or “Sun River Slope Canal Road” leading to the south side of the Pishkin Reservoir , a Wildlife Management Area , and public lands beyond had been Illegally locked off by a private party claiming ownership. PLAAI (Now "PLWA" ) brought suit based on testimony that gas tax money had been used for public maintenance of the road and that it had been used by the public continuously for many years. PLWA won a court decision to get that road open. However, the landowner then went on down the road and blocked it again beyond the point not covered by the court decision . A subsequent District Court decision contended that PLWA did not have standing at the second blocking location because the Bureau of Rec. held the easement - not PLWA . The PLWA law firm of Goetz and Associates of Bozeman appealed that decision to the Montana Supreme Court and prevailed in early 2008.   ... (more)
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Although we have in interest in reasonable access for all recreational users, we have significant concern about any use which can become a semi-exclusive or "consumptive" use - that is any use which significantly diminishes the enjoyment by other users. Motorized use can easily become "consumptive" and damaging to the resource use if not regulated and policed. (Given the size of Montana public lands it can be very difficult to police. ) It is often a major objection and obstacle to opening public land access.On the other hand, without some motorized use, large areas of the Montana landscape become inaccessible except to the young and hearty, or those with the budget and inclination to own or engage pack stock. Also public agencies cannot perform their management functions without motorized access in many cases. (How do you fight fire if you cant get in there ?   ... (more)

Roads on National Forest and BLM Lands

     PLWA policy
PLWA’s mission and the focus of our efforts is to gain access to the boundaries of public lands and waters. This includes fighting road closures where private parties block legal rights- of -way to the boundaries. However, PLWA normally does not get involved in the decisions by Federal agencies in regard to which roads inside public land boundaries are open or closed , or what public uses are allowed on those roads - usually referred to as "travel plans" . This is their area of jurisdiction. These are important decisions, and while many groups engage these issues, PLWA is usually the only one leading the charge to gain access to the boundary. We are not saying the agencies are always right with their Travel Plans, but our mission is to get you to the public land in the first place. (Successful legal action on Bullwhacker Road in Blaine County is an example of PLWA action.   ... (more)

Yellowstone Waterfowl Closure

     No Biological Reason
PLWA beieves It's grossly unfair when private interests block access to public resources. The bed of the Yellowstone is public property ! Waterfowl are legal game species! There is no biological reason for this closure anymore !Billings Gazette - by permission 50-year-old closure on the Yellowstone may be outdated but remains popularBRETT FRENCH Of The Gazette Staff | Posted: Thursday, October 8, 2009 12:30 amDuring the three-month fall waterfowl season, sportsmen can boat, fish and hunt upland birds and big game along the 100-mile stretch of the Yellowstone River from its confluence with the Bighorn River to the eastern edge of Rosebud County.But forget about goose and duck hunting on the river. That's prohibited along the river channel, backwaters and sandbars.   ... (more)

Arrow Island Yellowstone County

This is a designated but undeveloped county park located along the Yellowstone River somewhat southeast of Shepherd. (Sec 12 T2N, R27E ) Access is gated and padlocked but walking access allowed. FWP would like to develop a fishing access site at the location. Local area residents have the usual NIMBY arguments against such a plan and are proposing a Park Maintenance District. PLAAI believes that the park / FAS should be developed and operated like any other fishing access site and not be encumbered by any local agreements. The site is important as it is the only site on the north side of the river for approximatley 100 miles to the east of Billings . It is strategically located for river search and rescue operations as well as for water truck operations in event of large scale prairie fires.   ... (more)
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Public Land/Water Access Association Inc. or PLWA, is a citizen group organized and operated under the Montana nonprofit corporation act.

Articles and Information on this site represent the opinion of the writer and are not intended as legal advice. Legal counsel may be needed in dealing with specific access situations and issues.
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