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.
JULY 29, 2019 Order on Mabee Road: