If you encounter a closed road or trail (which is obviously not a federal highway, a state highway, or a city street) and you believe it may be a legally accessible road, here are some things you can do to check it out:
FIRST, is it in a National Forest? If so, check with the Regional Forester office to see if a private easement or fee tile exists. If not, take your case to the Regional Forester. It could also be a county road within the boundaries of the National forest. In that case you will have to deal with county authorities. Keep in mind the Forest Service does have the right and duty to manage a “travel plan” which allows road closures. That is a whole different issue from private closures within the boundary of the National Forest.
SECOND, is the road within BLM boundaries? If so, check with the State BLM office in Billings, or the nearest “Field Office” to see if a private easement or fee title exists. If not, take your case through BLM channels. Here again, this could be a county road within the BLM boundary.
THIRD, is the road within Montana State land boundaries? If so, check with the nearest Montana Department of Natural Resources and Conservation office (“DNRC”) to check status. State lands are accessible for recreational use. However, road use is usually restricted on those state lands leased for agricultural purposes.
FOURTH, is the road a private road or private subdivision road? You can determine if a particular road located within a subdivision is private or available for use by the public by examining land titles or subdivision plats located in all County Courthouses. Not all subdivision roads have been dedicated as county roads and subject to county control. BUT, NOT ALL ROADS ACROSS PRIVATE LAND ARE CLOSED TO PUBLIC USE. SEE SECTION “SIXTH” OF THIS ARTICLE!
FIFTH, is it a “county road”? County roads are those established and usually maintained by a county.
A “county road” is one petitioned by “freeholders”, approved by resolution, and opened by a board of county commissioners. It could also be road that is dedicated for public use and approved by Board of County Commissioners. Finally, it could be one acquired by “eminent domain “.
Counties cannot close roads without going through formal abandonment proceedings. However, often the neighboring landowner will use the closed road exclusively and prohibit public ingress/egress claiming it to be private. Such roads make good prospects for reopening and providing access to public land.
County Roads which serve two or more residents cannot be abandoned without unanimous consent of all landowners as per State Law.
County commissioners may direct county surveyors or public works departments to prepare suitable plat books. The plat books record a full description of each county road, showing each course by bearing and distance, a full and complete map of the road, and a record of all proceedings with reference to the road. Unfortunately, many counties do not fully comply with this procedure and method of operation. Some petitioned roads may have missing segments because the petitioning process was never completed.
SIXTH, is it a road across private land which is legally accessible? There are a variety of laws and legal status which confer the right of use by the public. Among them are:
Easements – both private and public – can exist where no apparent road exists. Whatever the status, they are registered in the public county records. They may be old obliterated roads or uncompleted roads. A public easement must be legally and officially terminated or abandoned before the land control reverts back to the original landowner. Otherwise it remains a public right-of-way.
Public roads and highways in Montana include those acquired by “adverse use” by the public, with jurisdiction having been assumed by the state or any political subdivision of the state.
Many “public” roads originate as “prescriptive easements” established by the “antagonistic” use of a “way” by the public for a period of 5 to 7 years and then adjudicated as a public road. The width of prescriptive easements is dependent upon the historic use during the prescriptive period. If county/public funds were used to improve, construct, or maintain the road, the width of those public roads will usually be the “county roads’ standard of 60 ft. Within the definition of prescriptive easements, each particular road has a constant width except at bridges. Opponents presume that the width narrows at bridges, but a 2008 Montana District court case ruling on dedicated county roads said that the right of way does not narrow. It would seem unlikely that a court would hold it would be different for roads created by prescription.
Some roads are qualified as public roads under Reserve Statute 2477 (RS2477), a repealed federal mining era law that states that any road/path across public land domain before patenting (under Homestead Act provisions) is a public road to be administered by the County. Many such roads exist through private property that was patented after the road was created. Although the Federal Land Policy and Management Act (FLPMA), adopted in 1976, repealed RS 2477, the provisions did not repeal rights-of-way granted under RS 2477.
Roads that were built on “dedicated land set aside for public use” – public land managed by the BLM, US Forest Service, or other federal agencies – generally do not qualify as RS2477 roads unless they were constructed before the dedication of the public land. For example, Forest Service land was set aside in 1903, so FS roads do not qualify for RS2477 protection.
The following two questions are key to determining if a road is a possible RS 2477:
1.) Was the road shown on the original survey plat?
(Original Survey Notes can be found for Montana at http://glo.mt.gov ) and:
2.) Did it predate the land patents? (Land patent dates – when land left the public domain – can be found at http:/www.glorecords.blm.gov ).
If the answer is “yes” to both questions, the road could very well be a public highway under RS 2477.
RS2477 roads, when established, are a standard R-O-W width of 66 feet (right of way). Public roads that qualify by virtue of RS2477, must be declared as a public by a public authority such County Commissioners, or a court before the public has access rights.
GAS TAX MAINTENANCE FUNDING
Public funds cannot be used to maintain a road not “open to public travel”. The State of Montana refunds gas-tax revenues to Montana counties based on public use of existent roadways and keeps records and maps of these “gas-tax or fuel-tax road”. While all county and “public” roads are identified as “fuel-tax” roads on each county’s maps submitted to the State, some fuel-tax roads included on these maps are neither public, nor county roads. The county is still eligible to receive a fuel-tax refund because the road meets the requirements that it is not be posted against use (or use of a locked gate), open to the public and can be navigated with a two-wheel drive vehicle. The State holds all fuel-tax road maps and records in file available in a catalog. Because not all fuel-tax roads are public roads the listing of a road on a fuel-tax map is not necessarily an indication that the road is public but lends credible supporting evidence. Loss of the public use privileges on these roads results in their removal from gas-tax rolls.
By state law, public roads that lead to public lands or public waters cannot be abandoned unless an equivalent access is provided.
Law enforcement issues can result in the closing of a public road but these conflicts should be resolved within law enforcement agency actions, not by closing public access.
Also, see the article “DETERMINING STATUS OF A RURAL ROAD” in the “Know Your Rights” section of this website.
Road law is obviously very complicated because of all the jurisdictions involved and the different historic uses. The above is provided as general information and not intended as actionable legal advice. Consult a law enforcement officer, the County Commission, a private attorney or County Attorney if you have any doubt about the law in a specific case. Although State and federal law codifies some aspects of road law, many cases can only be resolved in court.