Tenderfoot Road Summary

The Tenderfoot Road is an established county road, in Meagher County, a numbered Forest Service road, in the Little Belt Mountains, dating all the way back to 1899. It came to the attention of PLWA, in Sept. 2011, that the landowner, Howard Zehntner, an outfitter, had gated and set up a “Road Closed” sign on the public access county road. PLWA began the process of contacting the Meagher County Commissioners. Attorney General Steve Bullock filed suit to open the county road in 2012. The State won their suit in 2016, restoring public access on Tenderfoot County Road.

Read about the case filing here.

UPDATE: August 2016

Immediate Harm to Montana Citizens

Thankfully, in 2012, Montana Attorney General Steve Bullock utilized something little known by the public who votes for our attorney generals – a Montana law that not only gives an Attorney General the right, but the duty to act on behalf of the citizens of Montana. Bullock filed a Complaint for Declaratory and Injunctive Relief on October 12, 2012 against Howard Zehntner and Zehntner Brothers, LLC. As a result, the State of Montana just won an important access case and the public now has guaranteed public access on Tenderfoot Road, which leads to public State DNRC and US Forest Service lands in the Little Belt Mountains, including the Tenderfoot Legacy Project, known as the Tenderfoot Creek Area Land Acquisition, which placed more than 8,200 acres of private ranch land into public ownership.

The Montana law that AG Bullock referenced in his introduction, giving him not only the right, but the duty to act, was MCA 2-15-501 (6), which states,

“when required by the public service or directed by the governor, to assist the county attorney of any county in the discharge of the county attorney’s duties or to prosecute or defend appropriate cases in which the state or any officer of the state in the officer’s official capacity is a party or in which the state has an interest.”

The issue needing prosecution was an illegal access violation of a public access county road, the Tenderfoot Road. Howard Zehntner, a landowner who purchased land with the Tenderfoot Road running through part of it, is a registered, licensed hunting outfitter with Montana’s Department of Labor & Industry. Some of his land borders or is surrounded by State DNRC and US Forest Service lands. He erected a locked gate in front of the DNRC land, cutting off the public’s access to hunt or any other form of recreation on the State section, as well as Forest Service lands beyond. When the DNRC confronted him about the locked gate, he simply moved it off the DNRC land. The road closure came to the attention of PLWA in September 2011. In addition to the US Forest Service investigation of the Tenderfoot Road, PLWA also added to the documentation. The documentation was then presented to the Meagher County commissioners, who addressed it the following May 2012. When the Commissioners sided with the private landowner against the public, PLWA President John Gibson contacted Attorney General Bullock for intervention and encouraged him to take action.

In the 2012 Montana Attorney General’s introduction, Bullock asked the Court, “to declare the Tenderfoot Road (County Road No. 13) as a petitioned county road, and to recognize the corresponding right of the public to use Tenderfoot Road to access thousands of acres of public land. Defendants are physically blocking the roadway with a locked gate and have refused to open or remove the gate.”

Beautifully understanding the law for the public’s benefit, Bullock continued, “Defendants’ actions are in violation of state law and pose immediate harm to Montana’s citizens who seek to hunt, fish, and recreate on public lands in the Tenderfoot drainage. The Attorney General brings this action to vindicate the public’s right of access, to require removal of the encroachment, and to enjoin Defendants from blocking or otherwise interfering with lawful public use of the roadway in the future.”

PLWA made a similar request of newly elected Attorney General, Tim Fox, during the Seyler Lane Bridge case, which they just recently won. PLWA’s attorney wrote AG Fox in August 2014, requesting the Montana Attorney General’s office take over Madison County’s defense, stating “intervention” by the AG’s office was necessary, “given the State of Montana’s interest in the safety of the public on its roadways and bridges.” Attorney Fox did not reply, nor intervene.

On August 22, 2016, in the Findings of Fact, Conclusions of Law and Order by 14th District Court Judge Randal Spaulding, concerning the Tenderfoot Road case in Meagher County, Spaulding stated the evidence supports the status that the Tenderfoot Road is a county road! He also stated the defendants, Howard Zehntner and Zehntner Brothers LLC, failed to present conclusive evidence to the contrary.

The Conclusion of the Law pointed out Summary Judgment is appropriate where there is no disputed issues of material fact. Under the “record taken as a whole” standard, the burden is on the party opposing the public status of the road to provide conclusive proof that the road is not a county road.” There was no formal legal abandonment and Spaulding also stated, “… failure of a County to maintain a county road does not lead to abandonment and therefore does not affect the road’s status as public.”

Therefore, Judge Spauling ordered, “The Plaintiff’s motion for Summary Judgment is granted, … Defendants are PERMANENTLY enjoined from locking a gate across Tenderfoot Road, including the portion of the road that traverses Defendants’ property, or otherwise impeding the public’s access to the road in any manner, though Defendants or a government entity such as Meagher County or the United States Forest Service may place signs next to the road directing the public to stay on the road as it crosses private property.”

Upon hearing of Judge Spaulding’s ruling in the Tenderfoot Road case, Bernie Lea, a researcher with PLWA ensured, “We never go to court with opinions, we go to court with facts and laws behind us.”

Thankfully, then State Attorney General Bullock did his duty by the citizens of Montana, as an elected attorney general, upholding Montana law. As a result, we now have public access permanently restored to the Tenderfoot Road, its status as a public county road affirmed, removing the “harm to Montana’s citizens who seek to hunt, fish, and recreate on public lands”.

UPDATE: October 2015

Tenderfoot Creek Land Purchase

PLWA officers and President John Gibson have been active in advocating for this major access opening to both public land and water in central Montana. This is both by John’s advancement of funding through his position on the the “Canyon Ferry Trust” advisory board, lobbying for funding through the Land and Water Conservation Fund, and working with Attorney General Bullock in regard to action on the closed gate. (Yup, it is a complex situation but don’t give up – read on for more information. )

The Smith River canyon running from just north of White Sulpher Springs to just south of Great Falls, is one of great natural features of central Montana. The west side is mainly private land but the east side is primarily Lewis and Clark National Forest. The Tenderfoot creek runs into the Smith, and the South Fork Tenderfoot Creek road opens access to a large chunk of adjacent National Forest . A great opportunity exists to execute a land purchase which would open up even more of the National Forest and add to it.

Tenderfoot Creek Road area is included in a proposed land purchase in which the Bair Ranch Foundation has offered alternate sections of land to the U.S. Forest Service. Funds are available from the Land and Water Conservation Fund. On April 6, 2012 the Forest Service announced that $2 million had been allocated for Part 1 of the project as part of the FY 2012 Land and Water Conservation Fund allocation. Other involved organizations include the Forest Service, the Montana Fish Wildlife Trust (” Canyon Ferry Trust”) , the Tenderfoot Trust, and the Rocky Mountain Elk Foundation. We are following this closely and doing all we can to lobby for finalization of the deal!

However, a local landowner/outfitter has placed a locked gate on the county road leading to much of the land involved in this purchase. The Meagher County Commissioners apparently refuse to confront the landowner. Research by the Gallatin National Forest and The State of Montana Department of Natural Resources & Conservation shows that the road in question is an official County Road, established December 5, 1889, and recorded in the County Commission Journal Book 6, page 22.

PLWA recently received a copy of a letter from Attorney General Steve Bullock’s office to the Meagher County Commissioners relative to the closed road. It included the following; “In order to to ensure public access, this office is prepared to bring litigation if the county is unwilling to fulfill its duties to properly manage the road”. It very satisfying that the Attorney General’s office stepped up to the plate and is resolving this case without PLWA having to pursue further legal action.

The Forest Service Officer working on this is Bob Dennee from the Gallatin National Forest @ 587-6914 .

Stay tuned.

UPDATE: September 2015

Tenderfoot Road - Four Years and Counting

Tenderfoot Creek is a tributary of the Smith River, joining the Smith a mile or so north of Camp Baker. The road is an established county road and a numbered Forest Service road, dating all the way back to 1899. Despite the long public access history of this road, when rancher Howard Zehntner bought the surrounding land, he gated the road and erected a “Road Closed” sign. This Tenderfoot Road provided public access to some 8,000 acres of a prime habitat project being preserved by The Bair Ranch Foundation, Rocky Mountain Elk Foundation, the Tenderfoot Trust, and the Forest Service.

This road closure came to PLWAs attention in September 2011, and after extensive investigation the issue came before the Meagher County commissioners the following May 2012. When the Commissioners sided with private interests against the public, and Zehntner erected a new gate, the State of Montana, through the Attorney Generals office, filed action in district court in October 2012, requesting the Court acknowledge evidence of public access.

The following year, after an initial presentation of supporting historical records and witness testimony, the Court ordered the gate opened and enjoined the ranch from blocking access until a final decision was issued. When attempts to mediate the dispute were unsuccessful, defendant Zehntner filed a motion for summary judgment in August 2014, arguing there was no material evidence supporting public access, that the road was private, and further proceedings were unnecessary. The State argued that if the evidence was already sufficient, it supported public access.

As of September 2015, four years into the investigation and three years after the case was filed, we await the courts ruling. The Court can find sufficient evidence has already been presented and find in favor of either party, or it can order a full hearing on the matter. Given the importance of public access, and the considerable statewide and nation attention given the issue, it is understandable that the most careful consideration of all the facts be given the case.

UPDATE: November 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 -œ 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.

PLWA President John Gibson

UPDATE: October 2012

Attorney General Files Suit on Tenderfoot Road

PLWA President John Gibson calls attention to the action of Attorney General Steve Bullock to file a civil complaint against the landowner who placed locked gates across the South fork of Tenderfoot County Road in Meagher County. He has asked the court for an injunction to keep the road opened during the legal proceedings. Gibson said “Attorney General, Steve Bullock has brought the A.G.’s office into a road access issue for the first time in the thirty years that I have been involved in access issues. PLWA has always been on our own up to now.”

The October 14 item from the Great Falls Tribune quoted below tells the story :

Bullock files lawsuit over Tenderfoot access dispute

Montana Attorney General Steve Bullock has filed a lawsuit in district court to ensure what he says is the public’s right of access to Lewis and Clark National Forest via Tenderfoot Road near White Sulphur Springs in Meagher County.

Documents filed with the court Friday show that Tenderfoot Road was petitioned and accepted as a county road in 1900, and that the public has used that road to access thousands of acres of state, public and private land in the Tenderfoot Creek drainage for more than a century.

Jennifer Anders, an assistant attorney general, said land owner Howard Zehntner originally erected a gate across a county road adjacent to state trust land on which he has a grazing lease. About six months ago, the office negotiated with him through Meagher County officials to reopen the road. The gate was opened but Anders said Zehntner recently erected a new gate adjacent to his private land a few miles up the road from the original gate, prompting the lawsuit.

No matter who owns the land, Anders said, a private landowner can’t block a public road. She said the new gate is a barbed wire gate that’s pulled across a road and has a lock on it.

According to the state’s brief, Tenderfoot Road is “a public road that has provided homestead access and access for fishing, hunting and other recreational activities in the Tenderfoot Creek drainage for generations.” Trails at the end of Tenderfoot Creek provide motorized and non-motorized access to thousands of acres of public land, including a point overlooking the Smith River canyon and two popular National Forest System trails, Tenderfoot Creek Trail No. 342 and Bald Hills Trail No. 345.

“Access to wild lands, rivers and streams is part of who we are as Montanans and, when in conflict, should be decided by our courts, not one individual. As Montanans, we appreciate concern for private property rights, but state law makes it clear that public access to thousands of acres of public lands that have been used by hunters for generations can’t be controlled by a private landowner,” Bullock said in a statement.

In addition, the state alleges, the locked gate is hampering the work of the Tenderfoot acquisition project, a joint effort by the Forest Service, the Rocky Mountain Elk Foundation and the Tenderfoot Trust, a volunteer group, Bullock said. These groups are working together to acquire lands owned by the Bair Ranch Foundation in an effort to consolidate ownership of checkerboard lands in the Tenderfoot Creek area.

To date, 1,920 acres have been purchased in the area for $2.4 million.
Bullock’s lawsuit asks the court to order the landowner to remove the gate and to prevent him from otherwise interfering with the public’s right of access. It asks a judge to order the gate removed while the issue is litigated. Anders noted that hunting season begins this weekend.

On July 16, 2013, the Judge signed a scheduling conference order in anticipation of a hearing on August 16, 2013.

UPDATE: September 2012

New Gate on the Tenderfoot Road

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. “

UPDATE: August 2012

Tenderfoot Acquisition Advances

This is truly one of the most significant public access actions by a government agency – working with private entities – of all time. Think about it, nearly 8,200 acres of prime central Montana mountain and foothill country adjoining public land, eventually to be open. This is open for all public uses – including forest management and fire suppression.

PLWA has been involved with this from the outset: lobbying for Land and Water Conservation Fund appropriations, and working with Forest Service officials. President John Gibson serves on the advisory board of the Montana Fish and Wildlife Conservation Trust which provided part of the funding.

Sportsmen often take things like this for granted. But they don’t just happen on a whim or stroke of a pen. They take thousands of hours of volunteer time, the dedication of public officials who have the greatest good of the public in mind, and wisdom on the part of cooperating private entities. We don’t know who to thank the most in a case like this.

Sadly, an issue still remains with closing of a the Tenderfoot county road leading to the area. However, that is a different story and we will update you as it emerges. For now we are celebrating the latest success. Here is the story from the Great Falls Tribune :

Reprinted with permission from the Great Falls Tribune – August 8, 2012

Tenderfoot land now in public hands

by Karl Puckett, Tribune Staff Writer

The U.S. Forest Service and private partners have finalized the purchase of 1,920 acres of land near Tenderfoot Creek in Lewis and Clark National Forest from The Bair Ranch Foundation for $2.4 million, the groups announced Wednesday.. “That’s now in public ownership,” said Carol Hatfield, district ranger of the forest’s White Sulphur Ranger District.

Tenderfoot Creek, a tributary of the Smith River in the Little Belt Mountains north of White Sulphur Springs, provides key spawning areas for fish and habitat for elk, mule deer, black bear and many species of birds.

Sections of the Bair Ranch, now held in trust, are intermingled with federal lands.

In April, U.S. Agriculture Secretary Tom Vilsack announced the Forest Service was dedicating $40.6 million from the federal Land and Water Conservation Fund for 27 land acquisitions in 15 states, including $2 million for the Tenderfoot.

Bob Dennee, lands program manager for the Forest Service in eastern and central Montana, said the parties closed on the purchase Monday finalizing the property transfer in the Tenderfoot.

The agency previously purchased 1,480 acres from The Bair Ranch Foundation, bringing the total acquisition to 3,400 acres to date.

The Forest Service and the private partners anticipate purchasing another 4,800 acres in the future bring the total acquisition to 8,200 acres, Hatfield said. There is $3 million earmarked for additional purchases in the president’s 2013-14 budget, Hatfield said.”We do plan to keep chipping away at this and complete the acquisition,” Dennee said. “It takes patience and persistence.”

After all the lands are purchased, the Forest Service plans to work with the public to determine how they should be managed, Hatfield said. Management will likely be similar to adjacent lands already in the forest. Fishing, hunting and camping are allowed in those areas, she said.”Basically these lands will be the public’s to enjoy,” Hatfield said.

The purchase price for the 1,920 acres was $2.4 million, Hatfield said. Also contributing were the Rocky Mountain Elk Foundation, Montana Fish and Wildlife Conservation Trust, The National Fish and Wildlife Foundation and Cinnabar Foundation.

David Allen, president of the Rocky Mountain Elk Foundation, said in a statement that the cooperative effort is a model for habitat conservation and a historic opportunity to permanently open 8,200 acres for public hunting and other recreation

It was intent of the Bair family to preserve the land for the public’s enjoyment and educational purposes, Hatfield said. The land is no longer used as a working ranch.

The foundation is working with Montana Fish, Wildlife and Parks and the University of Montana on a fisheries study in the Tenderfoot, which is one of the main tributaries of the Smith River. It’s also partnering with UM on a bird habitat study.

A celebration of the land purchases to date is planned at 4 p.m. today at the White Sulphur Ranger District. Dennee said a locked gate, which had blocked access to the Tenderfoot lands, has been unlocked and opened.

UPDATE: July 2012

Tenderfoot Landowner Creates Barrier to 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.” MCA 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.”

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.

UPDATE: March 2012

Tenderfoot Creek Land Purchase and Road Closure - Attorney General Bullock Steps Up

PLWA Officers and President John Gibson have been active in advocating for this major access opening to both public land and water in central Montana. This is both by John’s advancement of funding through his position on the the “Canyon Ferry Trust” advisory board, lobbying for funding through the Land and Water Conservation Fund, and working with Attorney General Bullock in regard to action on the closed gate. Yup, it is a complex situation but don’t give up – read on for more information.

The Smith River canyon running from just north of White Sulpher Springs to just south of Great Falls, is one of great natural features of central Montana. The west side is mainly private land but the east side is primarily Lewis and Clark National Forest. The Tenderfoot creek runs into the Smith, and the South Fork Tenderfoot Creek road opens access to a large chunk of adjacent National Forest. A great opportunity exists to execute a land purchase which would open up even more of the National Forest and add to it.

Tenderfoot Creek Road area is included in a proposed land purchase in which a private land foundation has offered alternate sections of land to the U.S. Forest Service. Funds are available from the Land and Water Conservation Fund. On April 6, 2012 the Forest Service announced that $2 million had been allocated for Part 1 of the project as part of the FY 2012 Land and Water Conservation Fund allocation. Other involved organizations include the Forest Service, the Montana Fish Wildlife Trust (“Canyon Ferry Trust”) and the Rocky Mountain Elk Foundation. We are following this closely and doing all we can to lobby for finalization of the deal!

However, a local landowner/outfitter has placed a locked gate on the county road leading to much of the land involved in this purchase. The Meagher County Commissioners apparently refuse to confront the landowner. Research by the Gallatin National Forest and The State of Montana (Department of Natural Resources & Conservation) shows that the road in question is an official county road, established December 5, 1889 and recorded in the County Commission Journal Book 6, page 22.

PLWA recently received a copy of a letter from Attorney General Steve Bullock’s office to the Meagher County Commissioners relative to the closed road. It included the following, “In order to to ensure public access, this office is prepared to bring litigation if the county is unwilling to fulfill its duties to properly manage the road”. It very satisfying that the Attorney General’s office stepped up to the plate and is resolving this case without PLWA having to pursue further legal action.

Stay tuned.