Immediate harm to Montana’s citizens who seek to hunt, fish, and recreate on public lands…
Thankfully, in 2012, Montana Attorney General Steve Bullock utilized something little known by the public who votes for our attorney generals – a Montana law that not only gives an Attorney General the right, but the duty to act on behalf of the citizens of Montana. Bullock filed a Complaint for Declaratory and Injunctive Relief on October 12, 2012 against Howard Zehntner and Zehntner Brothers, LLC. As a result, the State of Montana just won an important access case and the public now has guaranteed public access on Tenderfoot Road, which leads to public State DNRC and US Forest Service lands in the Little Belt Mountains, including the Tenderfoot Legacy Project, known as the Tenderfoot Creek Area Land Acquisition, which placed more than 8,200 acres of private ranch land into public ownership.
The Montana law that AG Bullock referenced in his introduction, giving him not only the right, but the duty to act, was MCA 2-15-501 (6), which states, “when required by the public service or directed by the governor, to assist the county attorney of any county in the discharge of the county attorney’s duties or to prosecute or defend appropriate cases in which the state or any officer of the state in the officer’s official capacity is a party or in which the state has an interest.”
The issue needing prosecution was an illegal access violation of a public access county road, the Tenderfoot Road. Howard Zehntner, a landowner who purchased land with the Tenderfoot Road running through part of it, is a registered, licensed hunting outfitter with Montana’s Department of Labor & Industry. Some of his land borders or is surrounded by State DNRC and US Forest Service lands. He erected a locked gate in front of the DNRC land, cutting off the public’s access to hunt or any other form of recreation on the State section, as well as Forest Service lands beyond. When the DNRC confronted him about the locked gate, he simply moved it off the DNRC land. The road closure came to the attention of PLWA in September 2011. In addition to the US Forest Service investigation of the Tenderfoot Road, PLWA also added to the documentation. The documentation was then presented to the Meagher County commissioners, who addressed it the following May 2012. When the Commissioners sided with the private landowner against the public, PLWA President John Gibson contacted Attorney General Bullock for intervention and encouraged him to take action.
In the 2012 Montana Attorney General’s introduction, Bullock asked the Court, “to declare the Tenderfoot Road (County Road No. 13) as a petitioned county road, and to recognize the corresponding right of the public to use Tenderfoot Road to access thousands of acres of public land. Defendants are physically blocking the roadway with a locked gate and have refused to open or remove the gate.”
Beautifully understanding the law for the public’s benefit, Bullock continued, “Defendants’ actions are in violation of state law and pose immediate harm to Montana’s citizens who seek to hunt, fish, and recreate on public lands in the Tenderfoot drainage. The Attorney General brings this action to vindicate the public’s right of access, to require removal of the encroachment, and to enjoin Defendants from blocking or otherwise interfering with lawful public use of the roadway in the future.”
PLWA made a similar request of newly elected Attorney General, Tim Fox, during the Seyler Lane Bridge case, which they just recently won. PLWA’s attorney wrote AG Fox in August 2014, requesting the Montana Attorney General’s office take over Madison County’s defense, stating “intervention” by the AG’s office was necessary, “given the State of Montana’s interest in the safety of the public on its roadways and bridges.” Attorney Fox did not reply, nor intervene.
On August 22, 2016, in the Findings of Fact, Conclusions of Law and Order by 14th District Court Judge Randal Spaulding, concerning the Tenderfoot Road case in Meagher County, Spaulding stated the evidence supports the status that the Tenderfoot Road is a county road! He also stated the defendants, Howard Zehntner and Zehntner Brothers LLC, failed to present conclusive evidence to the contrary.
The Conclusion of the Law pointed out Summary Judgment is appropriate where there is no disputed issues of material fact. Under the “record taken as a whole” standard, the burden is on the party opposing the public status of the road to provide conclusive proof that the road is not a county road.” There was no formal legal abandonment and Spaulding also stated, “… failure of a County to maintain a county road does not lead to abandonment and therefore does not affect the road’s status as public.”
Therefore, Judge Spauling ordered, “The Plaintiff’s motion for Summary Judgment is granted, … Defendants are PERMANENTLY enjoined from locking a gate across Tenderfoot Road, including the portion of the road that traverses Defendants’ property, or otherwise impeding the public’s access to the road in any manner, though Defendants or a government entity such as Meagher County or the United States Forest Service may place signs next to the road directing the public to stay on the road as it crosses private property.”
Upon hearing of Judge Spaulding’s ruling in the Tenderfoot Road case, Bernie Lea, a researcher with PLWA ensured, “We never go to court with opinions, we go to court with facts and laws behind us.”
Thankfully, then State Attorney General Bullock did his duty by the citizens of Montana, as an elected attorney general, upholding Montana law. As a result, we now have public access permanently restored to the Tenderfoot Road, it’s status as a public county road affirmed, removing the “harm to Montana’s citizens who seek to hunt, fish, and recreate on public lands”.