Access group files complaint to have Fergus County road reopened
By Brett French Billings Gazette 9/5/2012 Reprinted with permission
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.