By Bernard Lea
The Public Land/Water Access Association has been involved in gathering evidence to present to county officials relative to the right of way status of roads in Montana. We provided Blaine County with documents that led to the determination of the county attorney that the Bull Whacker Road was a public road. In the past, we used the same evidence to clarify the status of Washington and Jefferson Gulch roads in Powell County.
Since then, there has been misinformation that leads people to believe we establish road rights of way. This is not true. I hope this column will clear up some of those ideas.
‘The good of the whole people’
When the National Forest Reserve Act was passed in 1905 creating the National Forest System of public land management, Gifford Pinchot, the first Secretary of the National Forest System wrote:
“In the administration of the National Forests it must be clearly borne in mind that all land is to be devoted to its most productive use for the permanent good of the whole people and not for the temporary benefit of individuals or companies… And where conflicting interests must be reconciled, the questions will always be decided from the standpoint of the greatest good for the greatest number in the long run.”
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, yards, or in some cases the last few feet, to the public land closed to the public? In many instances these road closures that are within a short distance to the public lands may be public roads.
This is where the Public Land Access/Water Association sometimes gets involved. When we hear of these closures, we investigate the county, state and federal public records to determine the status of the closed road. In some instances we find that the road is not private, because:
• An easement may be on record.
• It is a public road by the petitioning process.
• It is a road the county has maintained and the public has traveled for several years without asking permission,
• Or it may be a public road because of prescriptive use.
• It also may be a public road based on Revised Statute 2477 (RS 2477), which is a law passed by Congress in 1867, which granted easements for roads across “Public Domain” prior to patent.
The Public Land/Water Access Association does not create, own, buy or have any authority for a public right of way. If there are no records indicating the road is a public road, we have no authority to declare a road open to the public, accept any responsibility for its maintenance or law enforcement. If the record search indicates a question as to the title of the road, we gather the data and present it to the county and asked them for a legal opinion on the evidence we found.
Bernard W. Lea, of Billings, currently the President of Public Land Access Association (PLWA).