Michael Howell December 18, 2019
The Board of Ravalli County Commissioners balked once again at enforcing their order requiring the removal of the private gate blocking public access on Hughes Creek Road. The local landowners got what they now call “bad legal advice” when they applied for the abandonment of a portion of the road through their properties in July of 2016. The petition was ultimately denied by the commissioners in January 2017, following the determination that there was substantial historical evidence that the road, adopted in 1900, extended for 11.8 miles from its intersection with West Fork Road and could not be closed because of a state law prohibiting the county from abandoning any road that accesses public land. In this case, it was proven that the road does access national forest land at spots above the closed gate.
The Commissioners voluntarily withheld enforcing the removal of the gate until the landowners exhausted their legal appeals of the decision over the road’s status. The landowners sought to overturn the Commissioners’ decision by filing a civil complaint in District Court as well as a Petition for Writ of Review. Both the civil claims and the Petition for a Writ of Review were denied and the Montana Supreme Court supported those denials. Following the Supreme Court’s affirmation of the County’s decision about the road’s length and point of origin, the Commissioners ordered the removal of the gate once again due to the law requiring the “immediate” removal of any “obstacle” blocking a county road.
The landowners argued in a five-hour long meeting last Friday that evidence concerning the patented mining claims on the properties beyond the gate was not considered at the time and brings into question the county’s claim to the road right of way because the right of way claimed does not appear on the official plats of the mining claims that were issued a few years after the road was adopted. The landowners claim that because the road was not declared as an adverse claim during that patenting process that the right of way no longer exists.
Landowners along Hughes Creek Road, in an effort spearheaded by Jay Bugli (pictured), persuaded the Ravalli County Commissioners to delay the removal of the gate blocking public use of the road until an Attorney General’s Opinion is obtained concerning the county’s jurisdiction over the matter. Although both the landowners and the county expressed the belief that it would take a federal court to
decide the issue, it was agreed instead to seek a State Attorney General’s Opinion on the matter and that in the meantime the gate could stay in place.
“You have no jurisdiction over these lands nor does any court in the state of Montana,” said landowner Jay Bugli, who is spearheading the effort to keep the gate up. “Ravalli County failed to state their claim during the comment period, so you are barred. You can’t come back. The door is closed.”
According to Deputy County Attorney Royce McCarty, however, the road may not appear on the mining patent claim simply because the federal government didn’t have the authority at the time to transfer the county right of way which had already been placed on the land prior to issuance of the patent. He said if the mining claims were made after the road was accepted by the county in 1900, as in this case, then the federal government doesn’t have the ability to grant them to somebody else. So, in this case, it still belongs to the public.
The Montana Supreme Court found that by submitting their petition to abandon the road that the landowners “voluntarily chose, accepted, and submitted to the [Board’s] jurisdiction and committed their road dispute to the statutory process…including necessary fact-finding. The landowners are now bound to that process and cannot relitigate these issues in a separate forum.”
According to a recent opinion rendered on October 31, 2019 by Ravalli County Attorney Bill Fulbright, the county commissioners are also bound by the Supreme Court ruling and cannot relitigate the issue either. Deputy County Attorney Royce McCarty re-iterated that opinion several times during the meeting as the commissioners were being urged by the landowners to change their decision based on the new evidence concerning the mining claims.
According to McCarty, the only way that could happen is if the landowners submitted a new petition to abandon the road. That request, however, would face the same hurdle of running afowl of the state law prohibiting the commissioners from abandoning a road that accesses public land. Abandonment would also require all the landowners who are accessed by the road to agree to the abandonment. That would require the Forest Service to also agree to abandonment of the road, but to date they have expressed an unwillingness to do that.
Other landowners and other residents questioned the commissioners’ jurisdiction over the road due to the fact that it wasn’t declared in the land patenting process, as did some individuals from out of county and out of state. Tim Ravendal said that a similar case was currently in court in Broadwater County. Eric Parker, a member of the “3% percenters,” who claim that only three percent of the colonists actually resisted British rule during the revolution, also registered his objection to the county’s decision. He and others urged the commissioners to follow the federal law governing the mining claims, which the they called the “higher law,” and not the state laws that in this case, they claim, are in error.
Commissioner Chris Hoffman said he was bothered by the suggestion made by some that the commissioners were conspiring to take private property.
“Our job is to mitigate the risk to all the taxpayers in the county, so we follow the law as we understand it,” said Hoffman. “If there was some grand plot to take or make a taking and somehow supersede their rights to private property and their constitutional rights in Montana and in the United States, it seems to me we would have gone up and taken that gate out. We didn’t and we haven’t.” He said that this meeting was being held to hear new information but at the same time they have been told by their attorney that they cannot change their decision at this point at this meeting and that the only way they can change it is if they get a another petition to abandon it.
“We are your neighbors,” said Hoffman. “We are not some wall of bureaucracy put here to take make your life miserable…We are not here to take your land from you and anybody who comes here to tell you different is full of it.”
Commissioner Greg Chilcott said that the issue on the agenda was the gate. He said if there is an obstruction in a county road that the commissioners’ obligation under the law was to remove the obstruction immediately.
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It can be argued that we have not fulfilled our oath of office because we haven’t removed the damn gate,” said Chilcott. “So we are in kind of a lose/lose situation here.” He said that being a “general powers” form of local government, the county commission did not have the authority under state law to do anything other than remove the obstruction.
Commission Chair Jeff Burrows was also bothered by the suggestion that the commissioners were up to no good.
“This whole process would have been a lot easier to maneuver if there weren’t these conspiracy theories being thrown around out there that somehow the commissioners are in cahoots with the Forest Service in some New World Order to take over Hughes Creek in Ravalli County, Montana,” said Burrows. “Give me a break, guys.” He said the real issue being raised was whether the county’s adoption of the road is truly an “adverse claim” that had to be declared in the federal land patenting process in order to remain valid.
Although both the landowners and the commissioners appeared to agree that the only answer to the conundrum lies in federal court, where the Montana State Supreme Court could be overruled, the landowners object to being forced into filing a potentially very expensive federal lawsuit challenging the decision.
As an alternative, Ravalli County legislator Theresa Manzella suggested that the County Commissioners could seek an Attorney General’s Opinion on the issue.
Burrows said that the landowners need to pick a horse and ride it. Either they are claiming that the county has no jurisdiction over their property, or they are looking for the county to remedy the situation. He said it can’t be both.
After some more discussion, however, the commissioners agreed to work with Manzella and either she or the county commissioners would present a request for an Attorney General’s Opinion on the matter. The commissioners suspended any action on the gate for another three months or sooner if the issue is resolved by the Attorney General.
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