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Access is an area issue

By Kay Braddock 

        Their counties may be sparsely populated and rather minute in stature, but Carter and Fallon County Commissioners must be feeling at least a measured amount of gratification as they appear to be far and away further along in the process of declaring road ownership within their counties, as compared to their neighboring and much larger populated counterparts.

Spencer Huether, a retired employee of the Department of Revenue who has spent the majority of his life in both counties – raised in Baker and working 40 years in Carter County – began efforts on the road ownership and right-of-ways project in 2001.
“I only do this 40 to 60 hours a month,” he explained. “If somebody did this full-time it could (still) take years.” 
He estimates both counties are about three-quarters of the way done.
He began with roads running through state lands as well as roads running through Bureau of Land Management sections.
“The state and BLM are more than agreeable to give a right away (to the county),” he explained. 
With roads running through private land, the two counties used the public hearing resolution process that follows a 1993 Montana statute that states a road can become county owned once a description of the road is advertised and a public hearing is held. If no objections are raised, county commissioners can delegate the described road as county owned. 
But after attending last year’s road law seminar in Miles City, Huether now says Fallon and Carter Counties are going back to those same roads running through deeded property and asking property owners for easements.
That’s because road law expert and Missoula lawyer Peter Dayton, who taught the daylong seminar which drew in over 80 attendees, is uncertain of the statute’s legal standing in court. Noting the statute has yet to be tested, Dayton foresees headaches for commissioners who rely on the public hearing resolution.
“I think that’s an excellent idea because of the weakness of that statute,” Dayton said, responding to the two counties’ decision to rely on easements rather than the public hearing resolution.
“With an easement at least you’ve got a guarantee,” Huether explained, noting signatures from landowners and county commissioners must be obtained on the notarized document which gives public right-of-ways to the described road.
Dayton sees access issues as a statewide problem, although the reasons for their occurrence differ between the east and the west. While Western Montana is dealing with access issues caused through growing subdivisions, Eastern Montana is seeing an increase in access issues due to changes in land ownership. He estimates about 60 percent of Montana’s roads don’t have formal public-right-of-ways established. 
“County commissioners have been reluctant,” Dayton said of starting the road right-of-ways process. “People have a love-hate relationship with county roads,” he explained, noting liability concerns on roads has been one reason for the delay. Counties who take on a road’s ownership do not necessarily need to fear being sued if an accident occurs on that road, Dayton explained due to sovereign immunity.
As he and others, along with the Southeastern Montana Stockgrower’s Association, proclaim counties’ needs to gain road designation, it appears commissioners from Dawson to Petroleum to Custer and all other in-between are beginning the arduous process. 
“We just think there should be something done,” SEMSA President Don Griffin said, noting whether roads are declared county-owned or private-owned is not something the organization will give an opinion on, but rather it simply wants to see the ball-rolling on the matter.
“Hopefully it’ll be a higher priority in Custer County,” he said, which has gone through the public hearing process on most roads north of the Yellowstone River.
“We have a lot of work to do South of the Yellowstone,” Custer County Commissioner Gary Matthews said, noting the commission plans to address the project within the next 30 days.
“It’s important, I think” Huether said of the roads right-of-ways project. “Apparently not with all commissioners … but it will be.”
 
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