August t 2012 . Here is a new development on the Tenderfoot land acquisition and Tenderfoot road situation. The Tenderfoot Road (#6424) is the primary access road to the 8000 acre public access acquisition. The landowner involved has put up a gate on the road which is clearly a county road.
For several years now the U.S. Forest Service, the Rocky Mountain Elk Foundation, the Tenderfoot Trust, the Montana Fish and Wildlife Conservation Trust, together with significant funding from the Federal Land and Water Conservation Fund, have been negotiating the purchase of private lands in the Tenderfoot Creek drainage north of White Sulphur Springs. The South Tenderfoot Creek Road, designated Forest Service road # 6424, reaches from the Smith River Road north and west to the confluence of the South Fork of Tenderfoot Creek with the main branch.
In early 2012 , with the onset of the negotiations to convert the private-federal land checkerboard into a contiguous reach of publicly-accessible lands, a White Sulpher Springs rancher, Howard Zehntner, locked a gate where the county road crosses his leased Montana State Trust land and posted a sign reading ‘ROAD CLOSED.’ Pressure from agencies and county authorities convinced him of the illegality of his action. However, not to be deterred Mr. Zenthner has now gone down the road and blocked access to the road which is a a county road .
The county road petition to the Meagher County Commissioners is dated 1899 and the location of the road was recorded in a 1917 Homestead Entry Survey. Subsequent aerial photos and ground verification surveys for the USGS topographic maps place the road where it is today as shown on the Lewis & Clark National Forest Travel Plan. The road has never been abandoned by the County. It is by any rational definition a county road open to public travel.
Fortunately Attorney General Steve Bullock has spoken on the issue in his letter of June 21 , 2012. We understand his office is taking further legal action as of Sept 11, 2012 .
“If the county is unwilling to enforce these laws to maintain public access on a county road,the State is prepared to do so. It is the State’s position that the petitioned county road extends without interruption through sections 30,3I, and 32. I believe that a court would declare a public right of access all the way to Tenderfoot Creek despite Mr. Zehntner’s claim that the road has moved since it was originally petitioned and accepted as a county road. The plat map provided by Bob Dennee at Tuesday’s meeting shows the point at which the designated county road enters and leaves what is now the Zehntner Ranch property, which corresponds to the current road location. Even though the plat map does not show the exact location of the road as it existed at the time, a court would not likely ignore strong evidence of a road location in favor of a landowner’s unsubstantiated claim that, historically, the road was somewhere else. Moreover, courts have recognized that a road location may change somewhat without affecting the right of public access or the legal status of the road.
As I mentioned at the commissioner’s meeting on Tuesday, I am not asking you to take any formal action or declare the status of the road at this time. From my perspective, the records speak for themselves and, as long as public access is maintained, there is no reason for the State to get involved. The game changes, however, if public access is blocked at any point on Tenderfoot Creek Road up to the bridge that crosses Tenderfoot Creek. “