Landowner’s attorney excludes press at Scenic View Road meeting
By Kay Braddock
As Prairie County’s Scenic View Road access issue steadily approaches its two-year mark, state and local officials met this week in an attempt to find a resolution to the matter, which has so far eluded county officials.
The fact-finding mission concerning the road’s condition and historical record included three meetings between officials, sifting through aerial maps and court records, along with traveling the seven-and-a-half mile dirt road, which leads to the Scenic View outlook.
Assistant Attorney General Stuart Segrest met with Prairie County Attorney Becky Convery, Prairie County Commissioners Deanna Bockness and Ann Marie Davis and Road Department Supervisor Mark Trask. Attorney Wally Congdon, who has worked with federal agencies and western counties regarding access issues, also attended the meetings.
Congdon pointed out that the access issue western Montana has been dealing with for the past 30 years is just now hitting eastern Montana. The last ranch left in Missoula County recently sold for $28 million, Congdon said. “There are none left. She is done. Party is over.”
He noted there are no more sawmills left in Lincoln, Ravalli, Missoula or Lake counties.
“Where’s the timber base for this state?” Congdon asked. “So the change is sweeping,” he added. “So that land that was private, but was always treated as public is no longer treated as public, is still private but more private and there’s nobody left to ranch it,” Congdon said.
With huge tracts of land blocked off from public access weed and predator control for the few remaining neighboring farmers and ranchers has become a nightmare.
Congdon, who ranches near Dell, Montana described watching predators stalk his cattle, recognizing there is no way for predator controls to be used by the Montana Fish, Wildlife and Parks or any other agencies, because access has been eliminated on neighboring lands.
Scenic View Road became an access issue last year, after landowner Michael Karrels installed a locked gate on the road, which winds through portions of his private property and portions of land maintained by the Bureau of Land Management.
“If you want a mess for him and for all the rest in the county you let six horses dump a bunch of leafy spurge up in that country and see what that does,” Congdon said, referring to Karrels and the blocked off land. “It’ll look like the hills outside Missoula all spring. They’re beautiful yellow, just nothing can eat it.”
“There’s a whole myriad of stuff. It’s not a question, it’s a pile of questions,” Congdon said, noting assuring public access on the road is more than just assuring recreationists can visit the Scenic View outlook.
“If this ranch loses its BLM lease or gives it up, what does the next guy who has the BLM allotment do to get to his allotment?” Congdon asked.
Commissioner Davis noted the county commission has recently begun addressing right-of-way issues throughout the county.
“Now what we’re doing, we’re just getting control of all the roads through our easement program. We got the state done. We got the BLM done and we’re on the locals right now,” Davis said.
Congdon emphasized the need for the county to develop a growth policy to ensure federal agencies comply with county guidelines.
“You have a chance really to be preemptive in how you approach this, rather than responsive,” Congdon said.
“So this for you, as commissioners, is for you, your first test run of what this is going to be like in five years, or two years or one,” Congdon said.
“It’s a funny deal, 1958 is allegedly before the road was there and guess what the aerial photograph shows? The road was there,” Congdon told the two county commissioners at the Monday afternoon meeting. Congdon noted the current Scenic View Road is simply an alternate route of the old Cherry Creek Road, which court records indicate an easement has already been established.
“This was a relocation of the original road,” Congdon said, explaining that should bolster the county’s claim to Scenic View Road.
The old Cherry Creek Road runs a roundabout way, leading to the Scenic View outlook, but runs through even more deeded property owned by Karrels.
“If this owner doesn’t like your present route, I bet you there’s nothing in the record that says you as a county got rid of the old route. So what happens to the landowner is this: ‘If you don’t like the new route, close it and we’ll take back the old route. Have a nice day, because we never gave it up,” Congdon said.
Commissioner Davis asked whether House Bill 563, which recently passed the state legislature could provide a solution, noting she was told that papers regarding the road could be dropped on District Judge Richard Simonton’s desk and an opinion given that would resolve the matter.
“It’s a quiet title proceeding,” Congdon said, after reviewing the bill, noting it’s a court procedure that’s been occurring for the past 50 years.
“So it’s a very simple rule. If you’re going to go to a ball game bring a team,” Congdon said. “And I know what will happen to Terry at the end of the game if you don’t bring a team. You will lose.”
“What does every wealthy landowner from out-of-state want to say? ‘It’s not public. It’s not county. It’s not public access and it is closed. Period. No road.’ So what happens very quickly for counties, you have no public access to lots of land,” Congdon said.
Congdon emphasized the need for the county to negotiate with the landowner on the issue.
“There’s no law that says a public way has to be a blank check,” Congdon said, noting closing the road at certain periods during the year and addressing littering and other issues with the landowner would be a wise move on the county’s part.
“And the hope is, frankly, you have a guy on the other end who is creative as well. Because if he will be creative, he may be able to come up with a way to do it and you may to. And if you’re not creative and he’s not creative, a judge will be creative for you,” Congdon said.
“That’s one discussion we can have with him, ‘Are you willing to negotiate?’ And another is what’s the best way for us to give assistance to get you this information that he wants which is sort of a neutral opinion of is it public or private,” Segrest said.
“It costs a lot of money. It costs a lot of time and a lot of effort,” Congdon said noting the expenses involved in taking this to court go beyond legal, but include staff, effort and time.
“And I think, quite frankly, in all fairness to all parties that’s why both parties agreed to seek Peter Dayton’s opinion because he’s supposed to be a legal expert in this area,” Convery said, noting she sees negotiations on access to the road as a viable option.
Commissioner Davis said she has been trying to negotiate with the landowner from the onset.
“Every time we get a little ways with him and he reads the Terry Tribune and has his name drug through the coals and called names and accused of being a rich smart ass … well that wasn’t worded quite like that, but it says the same thing. But he responds to every article in the Terry paper and when he reads his name in the paper we take one step back so then it takes six more steps to get ahead with him and I’ve been trying to get ahead with him,” Davis said. “This last article I’m sure he’s wondering, ‘What the hell is going on now with those county commissioners?’ ”
Davis said she had only been told of the meeting with the state attorney general’s office that morning.
“Well, we certainly didn’t mean to sneak up on anybody,” Segrest said. “That’s why we sent out the letters ahead of time.”
Congdon pointed to another facet that should bolster the county’s claim to a right-of-way on the road.
“You know what, you get revenue shared money for gasoline taxes and diesel taxes for that road. So that’s proof right there that it was treated as a public way, county maintained public right-of-way,” Congdon said.
“Who owns the county roads everywhere is the landowner. Who owns the right-of-way is the county. But the easement, the right to use it for public right-of-way and utilities is the county’s,” Congdon said. “That’s the rule.”
Segrest noted this will only likely end up in court “If the landowner continues to disagree and continues to refuse access.”
“The mistake your property owner made is this,” Congdon said, “if you ever want to tick me off, working for a county, you go take his gate down without a court order, you drive a bulldozer through it and you take the law in your own hands and you know what? When you’ve got to tell that to a judge, you got to tell that to a jury, you’re upside down. You’re going down the drain and frankly when he went up and gated that road and locked it without a court order, he blew it. You put somebody like me in a court room and let me take that person apart over that question and I’ll have him in tears before he leaves the room,” Congdon said, adding, “and the jury will love it.”
“Well, that ain’t the way you do it. And the bet he has is that the county is not going to have enough spine or the county is not going to have enough budget to step up and fight it.”
Officials meet at Scenic View Road
State and local officials met Tuesday afternoon at Scenic View Road, along with landowner Michael Karrels, to travel the road, examine its condition and to visit the Scenic View overlook. The Terry Tribune was excluded from traveling on the road by attorney Lance Tonn, who is retained by Karrels. Prairie County Commissioner Ann Marie Davis was also excluded by Tonn from touring the road.
Those who were allowed to tour Scenic View Road included: Prairie County Road Supervisor Mark Trask, Prairie County Attorney Becky Convery, Quinn Haughian, Montana Assistant Attorney General Stuart Segrest, two interns from the Attorney General’s office, Wally Congdon, Tonn and Karrels.
The tour included looking at a washout near the road, pot holes on the road, and the BLM’s fire pit, pit toilets and sign, according to Segrest. The meeting and tour lasted over two hours.
“I think the Scenic outlook is beautiful,” Segrest said afterwards. “I thought it was really impressive. I’ve never seen anything like it before.”
When asked before leaving for the tour if Segrest was comfortable attending a fact-finding mission in which the press was excluded from attending Segrest said, “ I would prefer you to go, but it’s not my decision.”
Published July 29, 2009