Scenic View Road / Badlands View Road, Prairie County, Montana

Scenic View Road / Badlands View Road Summary

RESOLUTION ACCOMPLISHED AT SCENIC VIEW ROAD

A 7-mile dirt road north of Terry that leads to a popular scenic overlook of the Terry Badlands, known as Scenic View Road, was closed to the public after the Karrels placed a gate on the road in 2007. A lock was added to the gate a year later. Prairie County filed papers in District Court in September 2010 seeking a judgment declaring the 7-mile dirt road north of Terry a county road by virtue of prescriptive easement. The discovery of a 1965 Bureau of Land Management cooperative agreement made between the BLM and Prairie County, added another dimension to the Scenic View Road ownership debate. The 1965 BLM cooperative agreement designates Badland View Road, currently known as Scenic View Road, as a range improvement project, listing each section of land the road runs through, including state, federal and private lands. County officials contended the agreement clearly put ownership of the road in federal hands.

“In the wake of a lawsuit, countersuit and lively debate that divided this small town, the public once again has unfettered access to Prairie County’s signature scenic attraction, the Terry Badlands scenic overlook.

A three-year dispute over access to the site was recently settled, only a week before District Court trial of a lawsuit was scheduled to begin.

‘Essentially the landowner agreed to give the county a 40-foot wide easement where the road crosses his property,’ said Becky Convery, Prairie County attorney. ‘We’re just glad to get it settled. We think it’s the best solution.’ ”

UPDATE: March 2011

Printed with permission from the Terry Tribune, March 2, 2011.

Judge orders pre-trial mediation on Scenic View

Prairie County officials will take part in a court ordered mediation later this week, in an attempt to bring resolution to a three-year dispute over public access on Scenic View Road, according to Prairie County Attorney Becky Convery.

The pre-trial mediation, ordered by District Court Judge Richard Simonton, will take place Friday, March 4 in Billings.

Retired District Court Judge John Christensen will act as the mediator between the county and Michael and Terry Karrels. Confidential settlement papers have been submitted by both sides to Christensen.

“I think the county is very hopeful that we will settle this matter in mediation,” Convery said Tuesday morning.

Convery, along with commissioner Todd Devlin and co-counsel Devlan Geddes of Bozeman will represent Prairie County.

“The ultimate decision has to go to the Board of Commissioners before it can be approved,” Convery said of any agreements that may be reached during mediation.

Prairie County filed papers in District Court in September of last year seeking a judgment declaring the 7-mile dirt road north of Terry a county road by virtue of prescriptive easement after a locked gate was placed on the road.

Although negotiations were attempted at a public meeting between the two parties in the fall of 2009, Convery pointed out those talks were more on an informal basis.

“The county’s position hasn’t changed a whole lot from where it was two years ago,” Convery said, indicating the county continues to seek public access on the road.

The abuse of process counterclaim made by the Karrels against commissioner Todd Devlin and the Prairie County Commission, seeking actual and punitive damages, has been amended, according to court documents filed. The abuse of process counterclaim has been amended to be represented by Prairie County.

The abuse of process asserted by the Karrels stems from the county’s lawsuit on the road. The counterclaim asserts the county attempted to put the Karrels in a bad public light and to elicit public pressure against them when the county filed the lawsuit, ultimately in hopes of forcing the Karrels to give the county public access to their property, according to court documents filed. Other abuse of process assertions include that the county filed the lawsuit to subject the Karrels to costly litigation while the couple fights for their own private property rights.

Pre-trial concerns listed in court documents filed and addressed by District Court Judge Simonton focused on the 1965 cooperative agreement between Prairie County and the BLM as well as the 1969 Nefsy-BLM Agreement.

The 1965 Cooperative Agreement between the county and the BLM doesn’t mean the road is owned by the BLM, according to the District Court. The agreement also didn’t give the BLM the right to cross private property when the road was built.

In regards to the 1969 Nefsy-BLM agreement, “This agreement seems to do nothing other than provide for Nefsy to open more of his land to the public for recreation purposes,” the court document states. “The agreement is silent as to the road. This agreement could be unilaterally terminated by 30 days notice from either party. The BLM’s subsequent termination of this agreement at the request of Defendants would seem to have no effect on the road itself.”

GUEST UPDATE: October 2010

1965 BLM cooperative agreement with county ensnared in Scenic View Road ownership debate

By Kay Braddock

According to Prairie County officials a recent discovery of a 1965 Bureau of Land Management cooperative agreement made between the BLM and Prairie County has added another crinkle to the Scenic View Road ownership debate.

Prairie County Attorney Becky Convery and County Commissioner Todd Devlin met with BLM Field Solicitor Karan Dunnigan earlier this month to discuss the document and recent actions taken by BLM Field Manager Debbie Johnson.

“We wanted to know why they didn’t step up to bat,” Devlin said of the BLM, referring to the 1965 cooperative agreement.

Signed by Prairie County commissioners and the BLM district manager at that time, the 1965 BLM cooperative agreement designates Badland View Road - currently known as Scenic View Road - as a range improvement project, listing each section of land the road runs through, including state, federal and private lands.

The agreement outlines the county’s responsibility to provide continuous normal upkeep and maintenance of the road, specifically listing cattle guards and culverts supplied by Prairie County at that time.

County officials also contend the agreement clearly puts ownership of the road in federal hands.

“[The BLM] has basically thrown us in the hot seat when they’ve owned title to the road the whole time,” Devlin said.

But Johnson disagrees.
”I think it was a way to document each other’s portion of what they put towards the work that was being done on the road in 1965,” Johnson said. “Cooperative agreements and range improvements don’t give the BLM ownership of private land.”

But Devlin points to the federal agency’s own range improvement fact sheet that states range improvements authorized by Cooperative Range Improvement Agreements made prior to 1984 and after 1995 belong to the federal government.

The cooperative agreement between the BLM and Prairie County, dated May 21, 1965, falls within that timeline, Devlin said, which designates the federal government as owner of the Badland View Road range improvement.
”We don’t have a private property right issue, due to the fact the U.S. owns title to the land,” Devlin said, referring to the road.

Both Devlin and Johnson agree that Badland View Road has been listed on range improvement agreements signed by previous and current BLM grazing permittees who own lands that the road crosses.

Range improvement agreements are made between the BLM and those who lease BLM land when an improvement is made to BLM grounds. Typical improvements include water wells, water pipelines and fences.

Roads aren’t a usual range improvement, Johnson added, but noted that in this case, Badland View Road, has been listed as a range improvement and was carried forward throughout the years as such.
Johnson questioned whether the correct form was even used to record the 1965 agreement between Prairie County and the BLM.
”It’s very confusing and I think that’s too why maybe the commissioners have gotten confused,” Johnson said.

Canceling the Badland View Road range improvement
In an August 17, 2010 letter, Johnson approved a request made by Michael and Terry Karrels to cancel and abandon the range improvement project known as Badland View Road from their BLM file of range improvements. The request had been submitted to the BLM just one month prior to approval.
Johnson said the current litigation occurring between Prairie County and the Karrels, regarding Scenic View Road, had no influence on the BLM’s decision to cancel the range improvement.
”The lawsuit doesn’t have anything to do with our ability to manage public lands,” Johnson said. “We still need to be able to make decisions on public lands.”

Prairie County is currently seeking a judgment from district court on the 7-mile dirt road north of Terry that leads to a popular scenic overlook of the Terry Badlands, after the Karrels placed a gate on the road in 2007. A lock was added to the gate a year later.
Noting that the county is listed as a cooperator of the Badland View Road range improvement project in a binding contract with the BLM, county officials questioned why the BLM didn’t notify the county before canceling the range improvement project with the Karrels.
”They didn’t follow their own administrative regulation,” Devlin said. “We had an invested interest in the road…They should have had public meetings, public hearings,” Devlin said. “They should have discussed it with those with an invested interest, according to their regulations because we have an invested interest in the road. And if they do get rid of it, if they still make a decision to get rid of the road then they have to compensate (Prairie County) fairly according to their regulations.”

Devlin estimates the county’s compensation would be at least $820,000, but Johnson said the BLM was simply managing public lands. BLM grazing permittees have a list of range improvements that they are assigned to and that are tied to their grazing permits and livestock operations. When permittees no longer need the improvement, the BLM removes it, Johnson said.
Since the Oct. 13 meeting, which was also attended by Johnson and Shane Findlay of the BLM, the county has sent a letter to the BLM requesting the federal agency reconsider their decision to cancel the range improvement project from Karrels BLM file.
Devlin points to the possible future impact the decision could have on other BLM range improvement projects. “Without input from all invested parties, does that mean the BLM, with a stroke of a pen, can get rid of any cooperative range improvement they so feel like without compensating those who have an invested interest and without abandoning it and having it removed the correct way like the regulation says?” Devlin asked. He questioned whether community pasture roads would someday be handled in the same manner.

Johnson contends there are two separate issues at hand - a range issue and a road issue. But with Scenic View Road listed as a BLM range improvement project, it is unclear how separate the two issues are.
”Basically what you’re looking at in the cooperative range improvement that the permittee signed is actually in all purposes a right-of-way,” Devlin said.

UPDATE: February 2010

IMPORTANT LOCAL ATTRACTION CLOSED

Prairie County commissioners are taking action approximately 2 years after a landowner erected a gate, installed a cattle guard and posted a sign across a road that leads to a popular scenic overlook northwest of the town of Terry. As of April 2010 the gate is still locked. Note that in the latest article written in February of this year, the county attorney is saying the county is suing the landowner Karrels (“filing a complaint”) in order to resolve status of the road. To that end they have engaged a Dell, Mont. lawyer, Wally Congdon. PLWA is closely following this case. The Terry Tribune website has all the articles written about the road closure.( www.terrytribune.com )

Printed with permission from the Terry Tribune February 17, 2010

Felony cases delay filing on Scenic View

by Kay Braddock

After negotiations fell through late last year on public use of Scenic View Road, Prairie County officials agreed the county’s next step would be to take the matter to court, seeking a judge’s ruling on who owns the seven-mile dirt road that leads to a popular Bureau of Land Management scenic overlook north of Terry.

Nearly four months later, since the Oct. 30 meeting between Prairie County officials and landowner Michael Karrels, Prairie County Attorney Rebecca Convery confirmed this week the county’s intent to file a complaint before District Judge Richard Simonton.

“We had hoped to get it filed in January and January just became extremely busy with criminal matters,” Convery said.

The “self-imposed” deadline was waylaid by four felony charges, including felony DUI, drug and assault cases. Although a couple of the trials scheduled ultimately pled out, Convery explained a “substantial amount of time” was used responding to motions and briefs.

“The majority of my time has been spent in the last couple of months with criminal issues,” Convery said.

The Montana Attorney General’s office is continuing to “follow the case closely” Convery said, pointing to a Jan. 8 conference call she took part in with Attorney General Steve Bullock and Asst. Attorney General Stuart Segrest. Prairie County commissioners turned down the attorney general’s offer to act as lead counsel on the case, according to Convery.

“Primarily because the commissioners feel that this is their baby and it’s a local issue and they’d like to see it be resolved locally,” Convery said.

The attorney general’s office will play an advisory role in the case, reviewing pleadings and doing legal research.

During last year’s Oct. 30 meeting Prairie County commissioners attempted to negotiate seasonal public use of Scenic View Road with Karrels. Karrels, who has placed a locked gate on the road that runs through portions of his property and leads to a large tract of BLM land, said during the meeting that he would continue to allow “any responsible member of the community” access.

UPDATE: October 2009

Reprinted with permission from The Terry Tribune, Oct. 7, 2009

Negotiations in the works on access to Scenic View Road

by Kay Braddock

The Prairie County Board of Commission plans to meet with landowner Michael Karrels later this month in an effort to resolve the Scenic View Road access issue. That decision came after commissioners met with Prairie County Attorney Becky Convery during Tuesday’s regular meeting. Also participating in the conversation was Dell, Mont. lawyer, Wally Congdon who has been hired by the county to assist with the road access issue.

In August, commissioners voted 2-1 to set an Oct. 1 deadline, stating if an agreement between Karrels and the county could not be reached by that date regarding access to the 7-mile dirt road, which leads through portions of private and public properties, the county would seek a resolution through litigation to determine whether the road was public or private.
Commissioners hope to meet with the landowner sometime Oct. 30 during a regular meeting, although neither Karrels nor his attorney Lance Tonn have yet to agree to the meeting’s date.
The commissioners were initially unaware that Karrels or Tonn had responded to the invitation by the Oct. 1 deadline, only learning of it mid-way through the regular Tuesday commission meeting.

After a Sept. 25 phone conversation, between Convery and Tonn discussing the invitation to negotiate, Tonn said in a telephone interview on Tuesday, that he sent a letter Sept. 29 to Convery agreeing to meet.

The Sept. 29 letter from Tonn also asks Convery to provide in writing “exactly what the commissioners position is.”

One negotiation option discussed by commissioners at recent meetings included seasonal access, which would open the road three months out of the year for public use. Another option presented would set up the county dispatch as a call center, so dispatch operators could take phone requests of those travelers who want to drive the road. Dispatch operators would write down travelers’ information including license plate numbers, number and name of occupants and the time of day of travel before travelers could drive the road which leads to a popular scenic view outlook resting on a portion of 26 sections of Bureau of Land Management property.

But Public Lands and Water Access President John Gibson questions the legitimacy of agreeing to close the road for long periods of time.

“We would recognize the county’s responsibility to close it if it’s wet,” Gibson said, emphasizing safety to travelers and maintaining the road’s condition would be reasonable factors to consider. “I’m not so sure that we would go along with some private individual closing a public road for any purpose unless perhaps it was incidental to driving cattle down a right of way or something like that.”

Gibson, who acknowledged the public access group PLWA has been watching developments on Scenic View Road, said closing the road during hunting season would be unacceptable to the group.

The BLM land the road leads to “belongs to the public and should be available to the public,” Gibson said. “As the private land becomes more commercialized, their (hunters’) only option is to have public land available for hunting, and 26 sections is nothing to sneeze at.”

Access for hunting is one of three concerns PLWA has regarding the road being closed, according to Gibson, noting the importance of public access to the scenic view outlook as well as range inspection of the land and fire suppression.

“One locked gate could make the difference between a small grass fire and a conflagration that encompasses thousands of acres,” Gibson said.