Chronology of the CURRENT Hughes Creek Gate

Underlined words link to relevent documents

 

December 21, 2015: Commissioners Jeff Burrows and Greg Chilcott receive email from Dave Campbell, retired West Fork District Ranger, stating that he and Kent Miller, retired Forest Service land surveyor, are “requesting a meeting to discuss the removal of the gate blocking access to the public on Hughes Creek Road” and apparently referencing the “precedent setting case” from the Supreme Court, Letica Land Company, LLC v Anaconda-Deer Lodge County (decided in November 2015).

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NOTE: THIS SPECIFIC INFORMATION WAS NOT KNOWN BY THE LANDOWNERS OR THE PUBLIC UNTIL DECEMBER 13, 2019. THE FULL CONTENT OF THE EMAIL WAS NEVER DISCLOSED.

 

January 14, 2016: Letters sent to landowners notifying them of an “Upcoming Ravalli County Board of Commission Meeting Regarding Locked Gate on Hughes Creek Road” on January 26, 2016 at 1:00 p.m. The letter was on county letterhead and signed by Glenda Wiles, Commissioners Assistant.

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January 26, 2016: Commissioners meeting noticed as “Discussion with Civil Counsel of locked gate on Hughes Creek Road with possible decision.” Deputy County Attorney Howard Recht explained: “I think the thing that has brought this again before the commissioners is a recent decision with regards to Modesty Creek over in Deer Lodge-Anaconda, where the Montana Supreme Court decided a case in which there are many similar facts to the Hughes Creek situation and clarified the law as it pertains to these roads and public easements.” No determinations were made, but a subcommittee was created to explore the boundaries of the road, the private and public properties to determine if the road is all on private property or if it also crosses onto Forest Service, and if it provides access to Forest Service trails.

 

July 25, 2016: Petition to abandon approximately four-tenths of a mile of county road -- only that portion which crosses MS5898 -- drafted for landowners by Worden Thane, P.C., Martin S. King attorney. “The purpose of the abandonment is to clarify the scope of use across MS 5898 and to settle once and for all the fact that the County has previously determined that, as a matter of law, the county road ends at the western edge of MS 5883.”  (County documents report receiving a satisfactory petition on August 24, 2016.)

 

October 11, 2016: Road viewers conduct onsite examination of Hughes Creek Road, per Montana state road abandonment statute. Viewers are County Commissioner Doug Schallenberger, Road and Bridge Department Supervisor Dusty McKern, Planning Administrator and County Surveyor Terry Nelson. Also in attendance were: landowners Jay and Tracy Bugli, Wade and Charlene Cox, Seth Pogue, Lola Grenfell; a lawyer from Worden Thane; and “a couple of other guests.”

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The Road Viewers report is completed and signed by the officials designated in mid-December and early January, to be presented at the Public Hearing in late January. The conclusion is: “It is the viewer’s opinion that the road is in poor condition and has very limited potential of providing access to future development. … The road is never anticipated to be improved or maintained by the County. Also, there does not appear to be anywhere that access to Forest Service could be made from the road beyond the East boundary of MS 5898. Therefore it is the recommendation of the viewers that the road be vacated as requested. There may be some other legal issues based on closing a public roadway that services public land which is outside the scope of this viewer’s report.”

 

October 21, 2016: Email from Goetz, Baldwin & Geddes, PC, Bozeman Montana, representing the Public Land/Water Access Association, Inc. received by all 5 commissioners and assistant Glenda Wiles:  “Request for Removal of Illegal Encroachment/Gate on Hughes Creek Road & Denial of the July 2016 Bugli et al. Petition to Abandon.” (Though presented as a letter, it is essentially a legal brief.)

 

January 25, 2017: Public Hearing on the Petition to Abandon; followed by Possible Discussion & Decision on the Gate. The petition was denied and the Findings of Fact provided to the commissioners by counsel states “Hughes Creek Road continues to be a county road from its junction with the West Fork Road to at least the Hughes Creek trailhead, a distance of 11.8 miles.” [Only one of many errors in this document; the road across the private properties may end 11.8 miles from the West Fork Junction but the trailhead is beyond the end of the road.] The basis for the denial was that no other public road or right-of-way provides substantially the same access to public land or waters, as required by § 7-14-2615(3), MCA. Landowners were given until June 1, 2017, to remove the gate.

 

April 10, 2017: Plaintiffs file lawsuit in District Court, designated DV-17-137. The suit was filed by three of the landowners, the Bugli and Cox families.

Complaint for Declaratory and Injunctive Relief, “a dispute as to where the county road ends and private property begins.” Plaintiffs asserted four claims: Count 1, declaratory judgment that the County's act of directing Plaintiffs to remove the gate and allow public access is barred by the doctrine of claim preclusion; Count II, declaratory judgment that Hughes Creek Road ends as depicted on a 1965 map, which would be at or near the gate; Count III, declaratory judgment regarding the correct construction and application of § 7-14-2615(3), MCA; Count IV (contingent claim) - Unconstitutional Taking," a determination that if prior to adjudication of this case, the County orders the gate to be removed and the Court later determines the property beyond the gate is private, then the County's actions will constitute a taking and Plaintiffs are entitled to just compensation and damages, plus attorney fees. At the same time, Plaintiffs filed a Motion for Partial Summary Judgment on Count I (claim preclusion).

 

June 29, 2017: Judge Langton issues his Opinion & Order in above case. Essentially all claims are dismissed for lack of jurisdiction or because they are moot, and the case is dismissed.

“Plaintiffs' argument that they do not seek abandonment of a portion of Hughes Creek Road or review of the Commissioners' denial of the petition for abandonment is not only unpersuasive but disingenuous. Plaintiffs' first two counts seek declaratory relief that would, if granted, effectively abandon the portion of Hughes Creek Road that was the subject of the unsuccessful petition for abandonment.” [District Courts do not have statutory authority to abandon county roads.] “Plaintiffs' third count seeks an order remanding the 

petition for abandonment to the Commissioners for reconsideration in light of the Court's interpretation of the construction and application of § 7-14-2615, MCA.” [A writ of review is the only manner by which the court can obtain jurisdiction to abandon a road.] “Plaintiffs' fourth claim is contingent upon a favorable ruling on Count I or Count II. Plaintiffs' complaint appears to be an attempt to make an end run around the remedy to which they are entitled in order to broaden the scope of judicial review.”

 

July 11, 2017: Commissioners hold closed door session with counsel, Discussion & Possible Decision on Hughes Creek Road litigation.

 

July 12, 2017: Ravalli County Attorney sends letter to the landowners where the gate is located informing them that the lawsuit filed by other landowners had been recently dismissed, and therefore the Commissioners’ decision and determinations regarding the removal of the gate are in effect. The letter was signed by Deputy Attorney Daniel Browder.

“As the landowners [where the gate is installed], you could be held responsible for fines for failing to remove the gate as an encroachment, for costs of removal of the gate, and potentially for costs of a court action to force removal of the gate.”

 

“In the spirit of cooperation, the County offers you the following. If you arrange the removal of the gate by August 1, 2017, the County will not seek any repayment of costs or fines from you or the other landowners. If the gate is not removed by that date, the County will remove the gate and may seek fines and costs to the extent allowed by law.”

 

July 18, 2017: Plaintiffs file Notice of Appeal with Montana Supreme Court, assigned Supreme Court Case Number DA 17-0426

 

July 31, 2017: Plaintiffs file second lawsuit: Verified Petition for Writ of Review, Application for TRO and Preliminary Injunction. Assigned Case No. DV-17-320

 

August 1, 2017: TRO granted to allow gate to remain in place while case is adjudicated

 

November 21, 2017: Stay issued in second lawsuit, DV-17-320, while appeal in first lawsuit in moving through Montana Supreme Court

 

July 17, 2018: Supreme Court decision in first appeal, DA 17-0426, issued. (Submitted on Briefs:  March 28, 2018 Decided:  July 17, 2018) 

The District Court was correct when it granted the County’s motion to dismiss.  

Landowners did not satisfy all factors for claim preclusion and Landowners failed to follow the proper procedure for seeking review of a BOCC’s denial of a petition to abandon a county road. Affirmed.

 

July 26, 2018: BOCC, Discussion with Civil Counsel re Bugli et al v. Ravalli County (closed door session)

 

July 26, 2018: County files motion with District Court in second lawsuit, DV-17-320, to lift stay and Deny Writ of Review

 

August 9, 2018: Plaintiff’s file Response to County’s motion above, and request oral argument

 

August 9, 2018: Judge Langton issues his Order in DV-17-320 [without responding to Plaintiff’s motion, or perhaps even reading it]

Plaintiffs have failed to meet the threshold showing that the Commissioners exceeded their jurisdiction by denying Plaintiffs' petition for abandonment of the upper portion of the county road known as Hughes Creek Road. Plaintiffs' petition for writ of review and accompanying application for preliminary injunction should be denied.

 

The stay imposed in this case on November 21, 2017, is DISSOLVED. 

Plaintiffs'/Petitioners' petition for writ of review and application for preliminary injunction are DENIED. 

Defendant's/Respondent's request to dissolve the temporary restraining order issued by the Court on August 1, 2017, is GRANTED. 

 

August 22, 2018: Commissioners hold: Discussion of Judge Langton’s ruling & options going forward with Civil Counsel and Sheriff, closed door invoked

 

August 27, 2018: Plaintiff’s file second appeal with Supreme Court, assigned Case No. DA 18-0509

 

September 21, 2018: Commission Meeting: Discussion & Possible decision on delaying gate removal.

During discussion, commissioners refer to letter ordering removal of the gate by the 23rd; not sure when letter was sent, by whom or to whom. Decision was to continue this meeting until January 15, 2019, while the litigation in the Supreme Court continues.

 

January 15, 2019: Commission Meeting: Continuation of removal of gate from 9/21/18. Supreme Court has not decided appeal yet; no action taken by Commission.

 

July 9, 2019: DA 18-0509 IN THE SUPREME COURT OF THE STATE OF MONTANA 

Submitted on Briefs:  April 3, 2019

This Court restates the issue on appeal as follows: Whether the District Court abused its discretion by denying Landowners’ petition for a writ of review on the basis that Landowners failed to show the Board exceeded its jurisdiction in the proceedings related to Landowners’ petition to abandon a portion of Hughes Creek Road.

 

The District Court did not abuse its discretion when it denied Landowners’ 

petition for a writ of review.  Landowners failed to meet a statutory requirement for issuance of a writ of review; Landowners failed to show that the Board exceeded its jurisdiction. Affirmed.

 

Justice Laurie McKinnon, dissenting. I would reverse the District Court’s denial of the writ of mandate on the basis that the Board had statutory authority to only grant or deny the petition.  The petition before the Board was to abandon four-tenths of a mile of county road.  The Board exceeded its statutory authority when there was no duly filed petition to create a county road but it nonetheless found Hughes Creek Road was a county road extending nearly 12 miles.  

 

While the Board was within its authority to grant or deny the petition for abandonment respecting the four-tenths section of the road, its findings respecting the remainder of the road were not statutorily authorized.  The effect of the Board’s actions were that Landowners did not have the opportunity to litigate in a court the existence, location, and conditions of the road, which has long been the practice in Montana.  The unusual procedural posture of this case, and this Court’s decision in Bugli I that a declaratory judgment by the District Court regarding the length of the road would undermine the Board’s statutory authority over the road, do not preclude an evidentiary hearing before 

the District Court in an action for a writ of mandate.  The provisions of Title 25, MCA, relative to trials apply to writs of mandate.  Section 27-25-103, MCA.

 

Here, rather than limiting itself to its statutory authority to grant or deny the 

petition to abandon four-tenths of a mile of county road, the Board went further and made “findings of fact” about the road’s historical route, considered maps and other evidence purportedly establishing the road extended further onto Landowners’ property, and described the effect of prior county commissioners’ actions and court cases.  The District Court reviewed the Board’s hearing and determined the evidence overwhelmingly supported the Board’s conclusion that the road was nearly 12 miles long.  However, while it is within the commissioners’ authority to create and abandon a county road, it is not within the current commissioners’ authority to adjudicate what past commissioners 

have done.  It has long been the practice in Montana for the existence, location, and conditions of a county road to be litigated in a court. The District Court 

was obligated to hear Landowners’ writ as a matter of first instance in a hearing.  It was not the District Court’s function to determine whether the Board’s determination that the road extended nearly 12 miles was supported by substantial evidence.

 

While the Board clearly had authority to deny the petition to abandon four-tenths of a mile of county road, in my opinion the Board exceeded its authority when it addressed the remaining miles and determined that section was a county road as well. The Board’s authority is limited by statute and confined to consideration of those petitions duly brought before it.  There was no petition to classify the remaining portion of the 12-mile section.  If past county commissioners previously deemed it a county road, its existence, location, and condition must be determined in court through application of the rules of evidence.  Those rules of trial apply to writs of mandate, § 27-25-304, MCA, 

just as they do to declaratory judgment actions, quiet title actions, and other hearings.

  

Landowners are correct that the Board exceeded its authority in making 

“findings of fact” and a conclusion that the county road extends nearly 12 miles.  The Board’s authority is statutorily derived and was limited to granting or denying the petition before it.  I would reverse the District Court’s denial of the writ of mandate and vacate the Board’s “findings” that extend beyond the petition for abandonment. To the extent the Court holds otherwise, I dissent. 

 

During July, August and September 2019, we began researching and consulting with outside experts on the Land Patent issue. We also obtained the actual Patents and wrote to Washington to obtain the complete files on the Patented Mining Claims at issue.

 

In mid-September I delivered a letter to Commissioner Chilcott requesting a new hearing, and outlining the Land Patent issue. A few weeks later, we also sent a letter to the U.S. Attorney’s Office in Missoula discussing our concerns and requesting assistance. We have had no response.

 

After your visit with us on 9/16/19, Jeff Burrows finally agreed to come up to see all the information we collected. At that point, he requested a “truce” in the public communications, on both sides, until we obtained all the patent information we had requested from D.C. We agreed. Several weeks later, Greg Chilcott finally agreed to come up and see the data we had.

11/26/19: Jeff Burrows sent us 2 emails. The first attached a document from Bill Fulbright, County Attorney, dated October 31, 2019, providing answers to questions about whether a new hearing on the Hughes Creek gate issue could be held. This email also asked about the Patent documents. The second email informed us that the meeting was scheduled for December 13, 2019, and suggested that whatever information we had obtained on the patented claims be provided to each commissioner individually prior to that meeting. We provided each commissioner with a notebook containing the relevant documents before that meeting.