Tenderfoot Ruling, Good News

[katqanna]

In a ruling by 14th District Court Judge Randal Spaulding, 22nd August, on the Tenderfoot Road case in Meagher County, evidence supports status that the Tenderfoot Road is a county road. The defendants, Howard Zehntner and Zehntner Brothers LLC failed to present conclusive evidence to the contrary.

Zehntner had previously gated the road at DNRC state land, when Bullock was the Attorney General in 2012, he filed a complaint on behalf of the citizens of Montana. The State just won this case with the Judge ordering,

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.

Thanks goodness the State Attorney General Bullock did his job, we now have access opened. This morning, I was speaking with Larry Jent, running for the AG, and he had just shot video in front of another illegal gate across a county road that the county commissioners have not dealt with, saying that this is the kind of thing he would use his position on to make sure illegal blockages are removed. The public needs these kinds of representatives.

 

[theat]

That is great news. Kind of a funny coincidence...I got a call from Gianfortes campaign yesterday. I told them that I would not be voting for him and they asked why. I mentioned several reasons, but the one we discussed the most was public access issues. We agreed to disagree on the intent of his fishing access lawsuit. I mentioned, at one point, that I do support private property rights as long as they do not cause harm to adjacent private or public lands. In response the campaign caller told me that Steve Bullock does not support landowners and used this case as an example. Once again after a somewhat heated argument, we agreed to disagree.

 

[Southern Elk]

Great news!

 

[katqanna]

Just in time for hunting season!

 

[406LIFE]

I love hearing news like this. Those guys can make their way back wherever they came from. I'll try and make a trip over there this year.

 

[Trigger50]

Was this the case where, previously on Huntalk, there were ariel photo's posted? Arent the landowners relatives of former president Bush and the case was kinda overlooked because of their social status ?

 

[onpoint]

Just in time for hunting season!

Things like this aren't gifts. They happen through the hard work of a few who carry the many. If you're a Montana public land hunter and don't belong to PLWA, you may want to consider getting on board. I think the average age of the core of this group is about 70 years old. Nuff said.

 

[katqanna]

Onpoint, I did not mean to diminish the work and the battle by individuals and organizations, just excited that the ruling came in time for public hunters to have access again, like a gift.

I am aware of all the hard work and the age of many of these guys I work with (as well as failing memories). I spent alot of time interviewing, then purchasing, reviewing legal cases and legislative histories to write up the article for PLWA -
Did You Know You Have A Public Trust Duty? A Short History of Your Montana's Stream Access Law, which PLWA subscribers will be getting in THE KEY shortly. I have research to write up for a similar history on what it took to get hunting and angling access on State Lands, by some of the same guys.

While this is new history for me, my great concern is the average age of these guys, with a number passing away recently, taking their knowledge and activism with them. Freaks me out. I am also concerned that the younger generations of users, don't know what it took to achieve, sometimes taking it for granted and don't realize that it constantly needs to be fought for to maintain.

So forgive me, the "gift" was not intended to slight the effort it took to get this access, just excited in the victory and the good news.

 

[Irrelevant]

Onpoint, I did not mean to diminish the work and the battle by individuals and organizations, just excited that the ruling came in time for public hunters to have access again, like a gift.

I am aware of all the hard work and the age of many of these guys I work with (as well as failing memories). I spent alot of time interviewing, then purchasing, reviewing legal cases and legislative histories to write up the article for PLWA -
Did You Know You Have A Public Trust Duty? A Short History of Your Montana's Stream Access Law, which PLWA subscribers will be getting in THE KEY shortly. I have research to write up for a similar history on what it took to get hunting and angling access on State Lands, by some of the same guys.

While this is new history for me, my great concern is the average age of these guys, with a number passing away recently, taking their knowledge and activism with them. Freaks me out. I am also concerned that the younger generations of users, don't know what it took to achieve, sometimes taking it for granted and don't realize that it constantly needs to be fought for to maintain.

So forgive me, the "gift" was not intended to slight the effort it took to get this access, just excited in the victory and the good news.

On this subject, sort of... Does anyone know if there are other state specific organization fighting this battle in the courts like PLWA is doing in MT?

 

[onpoint]

Onpoint, I did not mean to diminish the work and the battle by individuals and organizations, just excited that the ruling came in time for public hunters to have access again, like a gift.

I am aware of all the hard work and the age of many of these guys I work with (as well as failing memories). I spent alot of time interviewing, then purchasing, reviewing legal cases and legislative histories to write up the article for PLWA -
Did You Know You Have A Public Trust Duty? A Short History of Your Montana's Stream Access Law, which PLWA subscribers will be getting in THE KEY shortly. I have research to write up for a similar history on what it took to get hunting and angling access on State Lands, by some of the same guys.

While this is new history for me, my great concern is the average age of these guys, with a number passing away recently, taking their knowledge and activism with them. Freaks me out. I am also concerned that the younger generations of users, don't know what it took to achieve, sometimes taking it for granted and don't realize that it constantly needs to be fought for to maintain.

So forgive me, the "gift" was not intended to slight the effort it took to get this access, just excited in the victory and the good news.

No apology necessary, sorry if you took it that way. My reply was directed to the general Montana bunch on this board. And you're right, it is a gift to a large bunch of people fought for by a select few.
When I renewed my membership, I asked the PLWA guys how to buy one of their ball caps, and they sent me a couple for free. Wonder if that would happen with some of the "bigger" organizations?.... Not just hard working effective guys, but good ones too.

 

[idnative1948]

Just hoping the Idaho judges hear or read up on this case.

 

[MattK]

That is great news. Kind of a funny coincidence...I got a call from Gianfortes campaign yesterday. I told them that I would not be voting for him and they asked why. I mentioned several reasons, but the one we discussed the most was public access issues. We agreed to disagree on the intent of his fishing access lawsuit. I mentioned, at one point, that I do support private property rights as long as they do not cause harm to adjacent private or public lands. In response the campaign caller told me that Steve Bullock does not support landowners and used this case as an example. Once again after a somewhat heated argument, we agreed to disagree.

I had something very similar happen with a a member of the Gianfortes campaign. A man came to my door and wanted to know what the most important issue for the governors race was for me. When I told him it was stopping the transfer of federal lands to the state, he told me how Gianfortes was against this also. When I asked him how Gianfortes was going to fight the Republican platform which states this as one of their issues...he said thank you and have a great day.

Katqanna- This is great news!

 

[406LIFE]

@kat, thanks for bringing this to my attention. I have known about the PLWA, but never got involved. I appreciate much all that they have achieved in the past. You motivated me to join.

 

[MTGomer]

When a landowner does something like this is the burden of proof then on the public to prove that it is indeed a public road, or on the landowner to prove its private?

If these roads are illegally closed, is it illegal to remove the obstruction with a log chain and proceed?

 

[katqanna]

MTGomer, It might depend on who you ask. I know guys who know the laws and also know all the research on a particular road. One of them, an older hunter, went on a road that is normally open most of the year, but just before hunting season, the landowners, the first of which is an outfitter, puts a lock on the gate that they all have the keys to. He takes bolt cutters with him. One time he went through the unlocked gate, only to find it locked on his way out. He cut it. There is no cell service in this area - I have been on the road to document it. There are familial connections between these guys and the sheriff, county attorneys, etc.

These are the laws about encroachments, but only address an officials capacity

7-14-2134. Removal of highway encroachment. (1) Except as clarified in 23-2-312 and 23-2-313 and except as provided in subsection (4) of this section, if any highway is encroached upon by fence, building, or otherwise, the road supervisor or county surveyor of the district must give notice, orally or in writing, requiring the encroachment to be removed from the highway.
(2) If the encroachment obstructs and prevents the use of the highway for vehicles, the road supervisor or county surveyor shall immediately remove the encroachment.
(3) The board of county commissioners may at any time order the road supervisor or county surveyor to immediately remove any encroachment.
(4) This section does not apply to a fence for livestock control or property management that is in a county road right-of-way and that is attached to or abuts a county road bridge edge, guardrail, or abutment if the fence and bridge appurtenances are not on the roadway, as defined in 61-1-101. Any fence described in this subsection must comply with 23-2-313.

7-14-2133. Removal of obstructions on county roads. (1) When 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.
(2) This section does not hold the board or any member responsible or liable for anything other than willful, intentional neglect or failure to act.
(3) For the purposes of this section, "obstruction" means an obstacle, such as a rock or a fallen tree, that if not removed would remain in the road indefinitely. The word does not mean snow, ice, or any other obstacle that will melt or dissipate on its own accord.

That is just one of many examples I know of these wonderfully rowdy guys that I know who do personally remove the illegal obstructions, sometimes I think to push a confrontation to legally draw attention to it. I have researched laws concerning roads, bridges and streams to find out my rights to document or recreate and have found nothing that "prohibits" a person from removing an obstacle. Now, the question can come up about any "destruction" of private property that may occur in the removal of the illegal obstructions. As in the case of the lock, they are not expensive and if a judge were to order payment for the replacement of a lock when the landowner illegally blocked a public road, which I doubt they would, I would have no trouble paying it, but if you were to damage a gate or they had cattle that got out and was damaged, that could be a different matter.

There was legislation that was introduced but was killed, that tried to put the burden of proof for road status on the landowner BEFORE he could block it. There was also legislation introduced that tried to increase the per day penalty for such obstructions to make it really proactive, that also was killed. Last September, at the EQC Interim Legislative meeting, I held up a bill from 2013 which passed, explaining that I felt it didn't go far enough, HB 147, which increased the fine for trespassing and for poaching. Rep. Kerry White and Sen. John Brendan were all smiles and very much shaking their heads in agreement.

Then I explained that there were two bills this last legislative session, 2015, that were similar, but they died, with many of the same legislators that voted for the first one, killing these 2. They were HB 286, prohibiting a landowner from installing any form of barrier without first meeting certain criteria presented to the Board of County Commissioners, with the road remaining open while the matter was being determined. The burden of proof would be on the landowner, rather than PLWA, sportsmen's groups and individuals that bear the cost in time and money to research and provide proof of road status or pay for litigation to get it opened.

The 2nd was HB 304, which would increase the penalty for blocking a public road. So I explained the hypocrisy of the situation, that public deserved as much right for protection as private landowners, suggesting that if legislators did not do their duty for the public, that the public would have no other choice but a ballot initiative on the two subjects, which would more than likely pass. Brendan threw a fit.

One of my regrets was not following my instinct to begin this process last fall, instead, I was told there were a few guys already working on this to wait a bit. Nothing ever transpired and we lost time in gathering signatures for a ballot initiative.

I can't give legal advice, but hopefully, some of this will help you to make a more informed decision.