by PLWA President John Gibson
Nov. 2, 2012
In a recent Tribune guest editorial by Hertha L. Lund, she says Attorney General Steve Bullock is ”misusing his office” when he filed an official complaint regarding closure of the South Fork of the Tenderfoot Road in Meagher County. Ms. Lund claims the road in question is a private road belonging to Mr. Howard Zehntner who owns some land along the road. Neither is true. Attorney General Bullock was doing his duty as Montana chief law enforcement officer and the road is, in fact, a county road.
She claims that since Mr. Zehntner has had a locked gate on this road for years, therefore it must be a private road. First, let’s look at some facts about the road. Records show that this has been an officially recorded County Road for decades – long before the current landowner purchased the two homesteads that accommodate the road. County roads often go through private property and do not change into private roads regardless of level of maintenance or use. A formal abandonment procedure with a public hearing is required before a public road can become private. There is no evidence that abandonment of this road ever occurred.
The Meagher county commissioners are the “public trustees” of all Meagher county roads. They have a legal duty to protect the public’s right to use the road as well as the undeveloped portion of the easement beyond the travel way. All such actions must be documented in the commissioners official journals located in the county court house. Mr. Bullock in his role as chief law enforcement officer, also has a duty to see that laws are enforced and it is in this capacity that he stepped in. That is exactly his job and he did not misuse his office.
The applicable state laws clearly state that no county road can be encroached upon by ”fence, building, or otherwise”, and that “the board may not abandon a county road or right-of-way used to provide existing legal access to public land or waters, including access for public recreational use as defined, unless another public road or right-of-way provides substantially the same access”. (MCA 7-14-2134.) Another state statute places a duty on the board to remove obstructions on county roads. (MCA 7-14-2133.) If there is a location change involving a portion of the road, the commissioners must execute or approve the relocation. Ms. Lund is a lawyer. Does she think officials can just look the other way?
I attended a meeting at the Meagher County Courthouse where the Commissioners claimed Mr. Zehntner could go ahead and install a locked gate at the point where this County Road entered his land. This was a clear abdication of their duty.
It must also be mentioned that the U.S. Forest Service, working with organizations and agencies such as the Rocky Mountain Elk Foundation and the Montana Fish and Wildlife Conservation Trust have allocated in excess of $5 million to acquisitions of checkerboard sections from the Bair Family Trust which will open up 8.2 million acres to the public for logging and recreation. It is my understanding that the Zehntner family is directly or indirectly involved with a big game hunting outfitting business behind the locked gate. Do they really expect that the public should foot the bill so they can have unfettered commercial access to that national treasure - and that he can act as the benevolent keeper-of-the-keys?
In short, Attorney General Bullock is doing just exactly what needs to be done for the greater good of the greatest number of citizens – and enforcing the law he has sworn to uphold.