Tenderfoot Landowner Barriers State Land

Attorney General Takes Action

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.

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.’ An onerous message is written on a mailbox sign next to gate warning “You must stop and register or you may be prosecuted.” In the mailbox is a log book with spaces for Name, Town, Auto License No., and Hunting/Fishing License number. All this begs the question: “Under what law could a person be prosecuted for walking on a county road or going on State Trust Land?

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.

In May 2012, upon intervention by the Montana Attorney General’s Office at a public meeting with the Meagher County Commissioners, Zehntner unlocked the gate and laid down the Road Closed sign. But a month later at the June 19th Commissioners meeting, Zehntner voiced his intention to erect a second gate where the road crosses a section of his private land at the old Mongar homestead. His right to once again gate the road was seconded by commissioners Hurwitz and Townsend. (It can be observed that the Hurwitz and Zehntner ranches are neighbors by Montana ranching standards and have known each other for years. Draw your own conclusions.)

On June 21, the Attorney General’s office backed up its position with a strongly worded letter to the County Commissioners. Portions of that letter are as follows :

“While I appreciate the concern for private property rights, I want to make clear that the question of public access is not controlled by the ownership status of land adjacent to a petitioned county road. The Zehntners have no more right to obstruct the Tenderfoot Road where it crosses their private land than they do to obstruct the road where it crosses public land. I tried to communicate this to Mr. Zehntner after Tuesday’s meeting, but I don’t believe I was successful. I also encouraged him to tell me why he believed a gate on his property was his “only option” now that he’s been asked to open the gate on state land. I wanted to determine if there is a way to resolve his concerns, but he was more intent on debating history than working together to solve a problem. In the end, I told him I appreciate his views but that if he puts up a gate, he will be in violation of state law.

State law prohibits obstruction of a county road and requires the county to remove the obstruction:

7-14-2133. Removal of obstructions on county roads. (1) Whenever a
county road becomes obstructed, the board of county commissioners, or the
county surveyor if the surveyor is in charge, shall remove the obstruction
upon being notified of the obstruction. Violations of the laws relating to county
roads must be prosecuted by the county attorney:

7-14-2138. Prosecution by county attorney. (1) The county attorney,
upon complaint of the road supervisor, county surveyor, or any other
person, shall prosecute all actions provided in Title 7, chapter 14, parts 2l
through 26 and 2S, in the name of the state of Montana.

(2) All penalties, except those paid to a justice’s court, must be paid into the general fund of the county.

If the Zehntners or any other person blocks Tenderfoot Creek Road, the county will need to consider its duties under these statutes. The county will have a difficult time disavowing the status of Tenderfoot Creek Road as a county road because state law prevents a county from abandoning any road that provides existing legal access to public land unless another public road or right of way provides “substantially the same access.” Mont. Code Ann. $ 7-14-26rs(3).

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…………The game changes, however, if public access is blocked at any point on Tenderfoot Creek Road up to the bridge that crosses Tenderfoot Creek.”

End of quote.

The law is clear – the Meagher County Commissioners have a duty to remove obstructions on and to county roads, and violations of the laws relating to county roads must be prosecuted by the county attorney. It the job they were sworn to do! Opening the old gate was a step in the right direction and Zehntner can be applauded for doing so, but now any obstruction to the road needs to be removed – for good. Not doing so will just result in a costly legal battle going nowhere for the county.

Tenderfoot Rd. South Fork
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