Mabee Road Summary

After over a decade of work by PLWA, concerned members and supporters, and the excellent legal team at Redmon Law office, the Montana Supreme Court handed down a decision in late March, 2021 declaring that the Mabee Road is not open for public use.

This decision comes not only as a blow to the public and all those who worked so hard over the past 11 years, but to the incredible team that worked on the case. Unfortunately, there does not seem to be much that can be learned from the decision. The justices concluded with a 5-0 majority even in light of the strong evidence provided by PLWA lawyers from Redmon. The analysis provided by the justices does not seem to address the evidence provided by numerous witnesses, including the landowner’s daughter who testified stating that the road to her knowledge and her father’s was indeed public. In PLWA President Bernard Lea’s words:

I personally am very disappointed in the final decision. I spent many hours in the courthouse, Montana Historical Society and visiting with users of the road. I and Todd Gunderson visited the road and he presented facts to the Fergus County attorney supporting the road as public. [Previously] I put together a separate notebook of facts and sent it to [attorney] Devlan [Geddes] for review. He stated he thought we had a good case based on the historical evidence used in the Ruby River case.

I sent a copy of the Gunderson file and what I had gathered to [then] Montana State Attorney General Steve Bullock. He had personnel review the data and we were able to meet with him personally at his office and discuss the facts. Based on the information that was gathered, with Todd Gunderson providing his input, Devlan's review, and our meeting with Steve Bullock, in my opinion we were totally justified filing this lawsuit.

I am very disappointed in the Supreme Court's decision because it appears to have ignored our evidence and state law….As you will see, the court agreed with the District Court, Brenda Gilbert's decision denying the road is a public road…One item I noted in the ruling was [they stated] that Bob Fink never thought the road was a public road. That is not true, [as] he was quoted in the BLM Management plan that he always believed it was a public road. It appears they ignored the evidence and went out of their way to indicate it is NOT a public road. The evidence provided in the trial is similar to what we have used on other cases.

It is hard to make sense of this loss, and even more troubling are the implications for public access in Montana. Rarely do we at PLWA have to write a summary about a public access issue that did not end in an access triumph, but we stand by our decision to take this case. The facts were on our side, the team did their very best, and witnesses spoke honestly and accurately. Though the Mabee Road case did not end as we had hoped, it does not diminish our stalwart dedication towards enhancing and protecting public access to your lands and waters, across Montana, now, and for generations to come.

Read the decision here.

Read the Redmon legal analysis of the decision here.

HISTORY OF THE ISSUE

The Mabee Road in Fergus County has served as a major public access route into the remote Upper Missouri River Breaks for more than 100 years. It runs north out of Roy for many miles until it intersects with the Knox Ridge Road in the heart of the Breaks country.

There is a well-documented history of long-standing public use of the Mabee Road in historical records dating back to the early 1900’s.

That historic public access ended in the fall of 2007 when a local landowner and outfitter installed a locked gate across the Mabee Road where it crosses through his property north of Roy. He posted no-trespassing signs, cutting off access to approximately 10,000 acres of public lands in the Breaks, including expansive prime elk habitat and hunting areas.

Two local hunters were denied access to their treasured public lands hunting grounds. They asked PLWA for assistance in reopening the Mabee Road. PLWA compiled substantial evidence validating the public status of the Mabee Road, and presented this evidence to the Fergus County Commissioners in January 2008. Despite our efforts, the Fergus County Attorney issued an opinion that the segment of road in dispute was private in 2010.

In November 2012, after exhausting other efforts to reopen the blocked portion of Mabee Road to public use, PLWA filed legal action in state district court to obtain a judicial ruling on the public status of the Mabee Road. That legal action culminated in a September 2018 trial held in Lewistown before District Judge Brenda Gilbert. PLWA’s attorneys and public access experts provided a thorough and convincing case that the Mabee is a public road. The testimony of local folks who used the Mabee Road over decades for hunting and other recreational pursuits greatly helped PLWA’s case.

In January 2019, attorneys for both sides provided their Proposed Findings of Fact, Conclusions of Law, and Order to Judge Gilbert. The PLWA Proposed Findings, Conclusions, and Order offer an excellent summary of the factual and legal basis of our case (The Proposed Findings of Fact and Conclusions of Law linked here are not the actual order from the Court. Both parties file these documents to help the Court reach its decision.).

PLWA later submitted a recent helpful case to the court: Soup Creek Rd Court Case 2019.

Read the case filing details here.

UPDATE: December 2020

PLWA has appealed the District Court’s adverse decision on the Mabee Road to the Montana Supreme Court. Our reply brief was filed in late November of 2020. We believe the evidence presented that the Mabee Road is a public road with use dating back more than a century is compelling. We remain hopeful that the Supreme Court will reverse the District Court’s decision and forever provide that the Mabee Road is open to the public. We do not know when the Supreme Court will rule on the appeal.

The Mabee Road litigation remains important for public access to a significant portion of the Missouri Breaks and for the precedent that will ensue – good if we win, bad if we don’t. We litigate with reluctance but once it is apparent that litigation is the only remaining means to settle a public access dispute for the public’s benefit, we pursue it with commitment. All litigation is expensive. An appeal to the higher court makes it more so. Mabee Road is just one issue of public access that PLWA is fighting for and we need your financial support to see each of these cases through the lengthy process of litigation.

UPDATE: August 2019

FERGUS COUNTY DISTRICT COURT RULES AGAINST PUBLIC ACCESS ON THE MABEE ROAD

The Montana Tenth Judicial District Court in Fergus County issued a ruling last week holding that the Mabee Road “abruptly ends” prior to reaching public lands beyond (you can find a link to the order below). The Mabee Road runs north from Roy, Montana. Twenty miles of the historic road meander through a checkerboard of private and BLM land south of the Missouri River.

Since 2007, a locked gate has blocked this critical route to a large chunk of public land to the north. This route winds through the Upper Missouri River Breaks National Monument and the Charles M. Russell National Wildlife Refuge. It also boasts some of the best deer and elk hunting in the state.

In an interim order, the court held that “the disputed trail existing on the private lands of the defendant ranchers is a private trail subject to the ownership and control of the respective landowners through which it passes.” PLWA could not disagree more with this devastating decision.

The court relied, in part, on observations of the physical characteristics of the trail made during trial. Of course, the current condition of the road has little or no bearing on whether it is legally public. After having been gated off from public use for over a decade, the undeveloped and unmaintained road understandably does not appear in the same condition that it would have appeared under regular use before the disputed gate went up.

The order minimized evidence of the road on maps and surveys. The court acknowledged that a 1903 Postal Service map showed a route through the area. Rather than using this as evidence of historic public use, the court decided that “lines on a map or survey are not evidence of physical use of the routes they depict.” This is a scary approach for public lands issues: maps and surveys—particularly for older historic roads and trails—often comprise some of the best evidence for historic public access rights.

PLWA still maintains that the road should be public. The Mabee Road is an important historic access to a massive piece of public land. Fergus County collected taxes on the road. The road appears on the Bolles survey and on tax maps. After the court’s decision, however, the road is now legally private.

Needless to say, this decision represents a significant loss for Montanans. As it currently stands, the defendant landowners have exclusive legal access rights along Mabee Road to the Upper Missouri River Breaks National Monument. These landowners include founding members of UPOM (United Property Owners of Montana), anti-access advocates who run a commercial outfitting business on the public lands accessed by the road. They have successfully blocked this critical access route to public land.

PLWA is in the process of evaluating an appeal. PLWA must carefully evaluate the potential precedent that might be set by a Montana Supreme Court decision. As always, support from our membership is critical to our ability to do this important work. As united owners of Montana’s public lands, please consider a donation to PLWA today to keep us in this fight.

Read the July 29, 2019 Order on Mabee Road here.

UPDATE: January 2018

In December, it was discovered there were more files in storage at the Fergus County Courthouse. Our PLWA board discussed this with the attorneys, agreeing that these boxes needed to be investigated. To accomplish this, we needed more time. Our attorneys filed a court request to continue the trial, allowing for this additional research. During a conference call between the attorneys and Judge Brenda Gilbert, it was agreed the trial would be continued. This decision was made January 12, 2018.

The Mabee Road trial is currently scheduled for September 10, 2018. The attorneys stated that the date was moved out to accommodate Fergus County time schedules, as well as reviewing the new discoveries.

This communication is the first opportunity I have had to get this trial date change out to the PLWA membership.

We will be in contact with our attorney’s to keep our costs to a minimum during the time from now until the trial.

UPDATE: January 2018

We need your help right now, and we’re not asking for money. In the process of a court case the defendants want to know if any PLWA members have traveled the Mabee Road, just north of Roy, Montana, in Fergus County.

If you have, please contact us at plwa@plwa.org or call 406-690-0960.

If possible, please include the date of travel and what you were doing there.

All responses are appreciated!

UPDATE: September 2012

Reprinted with permission from the Billings Gazette, September 5, 2012

PLWA Files Suit to Reopen Mabee Road

by Brett French

Four years after failing to persuade Fergus County to declare a road north of Roy a public route, a land access group filed a complaint last week in Fergus County District Court seeking to have the northern portion of the Mabee Road reopened to the public.

The road has been gated and posted by a group of landowners for almost five years. According to the Public Land/Water Access Association, the plaintiff in the suit, the road accesses federal and state lands valuable to hunters, including the southwestern corner of the Charles M. Russell National Wildlife Refuge.

Landowners along the road have contended that the public right of way stops well short of their portion of the road and that there is no basis for declaring the route public.

The PLWAA contends that the route, before it was closed, had been used by the public continuously for more than 80 years.

The group had petitioned the county commission to take action and declare the route public. But two years ago, after reviewing documents from lawyers representing the PLWAA and the landowners, Fergus County Attorney Thomas Meissner advised the commission to let the closure stand.

Meissner said Tuesday he has not yet had a chance to talk to the county commissioners about the recently filed complaint. He said he has seen no reason to change his previous opinion on the matter.

John Gibson, president of the PLWAA, said the decision to take the next step and file a complaint was prompted by concerns over the length of time the road has been closed. The group is worried that if the closure isn’t litigated within five years, it may be harder to get the road reopened.

“We’re not happy with filing lawsuits, but it’s about the only way we can get things done,” Gibson said. “Otherwise, we lose access to public land and water.”

The PLWAA is seeking a declaration that the road is a public road; to have the landowners enjoined from ever closing the road again, and to have the county remove any obstructions from the road.

“We believe it should have a prescriptive easement on it,” Gibson said. “There’s a lot of public land back there that’s tied up.”

The plaintiffs have 20 days to respond. No hearing has been scheduled on the matter.

Named in the complaint are the Fergus County Commission, Meissner, and landowners Mark and Deanna Robbins; Robert and Kathie Fink; David Murray; Cleo, Mary, Dan and Laura Boyce; Joanne Owens Pierce, and Marabeth Owens Ostwald.

The Robbins family runs a hunting outfitting business, Armells Creek Outfitters, which has further inflamed debate over the road closure.

The issue of public access to public land and wildlife has become a hot-button issue in Montana, in some cases pitting outfitters and landowners against resident hunters, as well as resident hunters against their nonresident counterparts.

The last legislative session featured a flurry of retaliatory bills aimed at resident sportsmen by some lawmakers who were angered over the passage of a voter initiative that raised nonresident hunting license fees. Some landowners lease their land to out-of-state hunters or outfitters. The initiative was seen as an attack on that income source.

The state Department of Fish, Wildlife and Parks has been seeking to find common ground between the groups, but the issue remains divisive.

Read the Fergus County Attorney’s response to PLWA here.

UPDATE: October 2010

The Fergus County Commissioners are still refusing to acknowledge that the Mabee 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.

In early 2010 the Fergus County Attorney advised they County Commissioners stating that “I believe it would be a mistake for the Board of Commissioners to support one position or the other in these situations”. We believe this is an abdication of the duty of the Commissioners.

Since that time significant additional evidence was discovered and submitted to the commissioners. It included maps and other information that reflects the road has existed in approximately the same location since 1913 along with a copy of patent files from the National Archives in Washington D.C., and a copy of the letter submitted by the former owner of the property, Mr. Fink, stating in 2000 that the Mabee Road had provided access to the area for 90 years without anyone asking permission. The original patent files state that when filled out, November 16, 1920, the applicant, Leonard Ellis filled in the blank under Rights of Way as “Designated”. It is safe to assume that the only place he could have found this information was in the County Courthouse, the same place we found the plat of the surveyed road in 2009.

(We also included copies of the Perkins Gulch court decisions – both District Court and Montana Supreme Court, The Perkins Gulch case in Deer Lodge County, affirmed by the Supreme Court in January 2010, ruled that a road with very similar conditions to the Mabee Road was in fact, a public road. See PLWA website for details.)

This additional evidence supports the case for a Prescriptive Easement as well as RS 2477 status. (See PLWA website for definitions.)

We submitted this additional evidence to the Fergus County Attorney and Commissioners in mid 2010 and requested they reaffirm that the Mabee Road has been, and is now a public road. (We also sent copies of our evidence to Attorney General Steve Bullock’s office in Helena. ) As of October 2010 the position of the commissioners is that they are not going to act on our new evidence as submitted. Again, we feel this is a further abdication of their responsibility.

If you know of persons who traveled the road anytime from 1913 to 2007 and not having to ask permission or encountered any locked gates or “Road Closed” signs, please contact any member of PLWA. We may ask you to sign an affidavit to that effect. (An affidavit only states the facts and truths. Anyone signing an affidavit is not putting themselves in any legal jeopardy.) We do not want to litigate this case, but if we do, any evidence of this type is very useful.

If you are a resident of Fergus County demand the commissioners study the evidence we provided and reaffirm that Mabee Road is still a public road.

UPDATE: January 2010

Fergus County Attorney Responds to Mabee Road Closure, Urging No Action:

Todd Gunderson, a PLWA volunteer attorney, received a copy of a letter Fergus County Attorney Thomas P. Meissner sent to the Fergus County Commissioners regarding the closure of Mabee road.

Mr. Meissner advised the county not to get involved in this case. He stated, “I am sure there are dozens of roads in Fergus County where the issue of prescriptive use could be argued. I believe it would be a mistake for the Board of County Commissioners to support one position or the other in these situations”.

The Mabee Road runs north from Roy, Montana in Fergus County, and provides the only road access to a large area of the Missouri Breaks National Monument and the CMR Wildlife Refuge.

Since Todd received this letter, a major event has taken place. The Montana Supreme Court ruled in favor of a prescriptive easement on a road similar to the Mabee Road. It is the Perkins Gulch Road in Deer Lodge County. The case was resolved though the District Court, which determined the road was public under prescriptive easement. This decision was appealed to the Montana Supreme Court and they upheld the District Court decision.

PLWA believes that we have a similar case and would be able prove Prescriptive Easement rights based on the testimony provided by the court records on the Perkins Gulch Road. PLWA will now review our situation, gather information and advice and then call a meeting of the board of directors and fully discuss our options and what we do next.

Read Mr. Meossner’s Letter to the Fergus County Commissioner here.