Mineral County commission to sue landowner for gating public road
Laura Lundquist
(Missoula Current) Mineral County is taking legal action to open a section of county road that’s been illegally blocked for years, thanks to the groundwork of some concerned citizens.
On Friday afternoon, Mineral County commissioners voted unanimously to have Deputy County Attorney Wally Congdon sue landowner Paul Wheaton to get him to relinquish the county right-of-way along about 1 mile of the Cyr Iron Mountain Road, also known as Forest Service Road 344 south of Interstate 90 east of Superior.
About a dozen people attended the meeting to back Congdon’s proposal, including locals and representatives of the Montana Backcountry Horsemen, Hellgate Hunters and Anglers, Public Land Water Access Association, and the Big Sky Upland Bird Association. Wheaton did not attend.
Wheaton bought his two adjacent parcels in Mineral County about a decade ago and put up two metal gates to block the road as it enters and exits his property. That forced other landowners living farther up the Cyr Iron Mountain Road to take the longer route along Diamond Road to the interstate. It also limited public access to the surrounding Forest Service land.
Since the county had balked at taking action since Wheaton put the gates up, Congdon told the commissioners they had two choices: do nothing and the gates would remain forever because Wheaton can claim that, after a decade, the county abandoned the road. Or they can sue to force Wheaton to confirm the county’s ownership of the right-of-way through Wheaton’s property.
Congdon said he’d communicated with Thomas Orr, Wheaton’s attorney, for the past six months to try to work out a compromise to favor both sides. But Wheaton shut the negotiations down, insisting the road was private.
That’s where it may have ended, were it not for all the legwork that’s been done by landowners led by Diane Magone and Bill Geer of Hellgate Hunters and Anglers.
Magone has rallied several landowners to testify as to the decades-old public use of the road and has repeatedly tried to get the county to take action since 2013. Her father, Joseph Magone, a WWII veteran who was in his 80s when the gates went up, was disappointed, having driven the road all his life.
But the county didn’t want to spend $20,000 at that time to fight it out in court. However, the county also didn’t vacate the road, so it remained with the county.
Magone collected about 150 signatures of locals petitioning the commission to do something and got the Governor’s Office involved in 2016. When the Sunrise Fire broke out in 2017, Forest Service fire crews opened the gates to access the fire during the summer. But then, the gates closed again.
The U.S. Forest Service also has a claim to the road right-of-way but has refused to enforce their right except during emergencies.
Enter Geer, who spent much of his career with the U.S. Fish and Wildlife Service working on access issues. In 2018, he started digging around in the libraries of Missoula and University of Montana looking for details related to the Cyr Iron Mountain Road.
“When someone can close a road easily just by saying it’s closed, if they can do it here, they can do it anywhere. The loss of public access is one of the most severe things we face in wildlife management. Even if you don’t hunt and fish, the fact that you do outdoor recreation and enjoy that, it’s something the public has lost use of,” Geer said.
Records show the road was established as a county road in 1903, one of several roads in the area used by miners and foresters. At that time, Superior was still part of Missoula County - Mineral County wasn’t created until 1914 - so that’s where Geer discovered a lot of the records. The road was finally completed in 1934 by the Civilian Conservation Corps.
“This is one of a multitude of roads with similar questions,” Congdon said. “I think the reason people fail (in challenging road closures) is a lot of the miners and petitioning was done when they built the Northern Pacific in 1880 and a lot of it was done when they were building the Milwaukee Road, which was finished in 1909. People didn’t know. (The records) were not in your courthouse. This was not Mineral County - it was Missoula County and the records are there.”
They also discovered that utility companies petitioned it as a county road, because in 1910, Montana passed a law that allowed utility companies to install lines in a road right-of-way for free as long as it was a county road, Congdon said.
Between those records and the deposition of some long-time residents - some who have died since the road was gated - Congdon said the county has a solid case. He should know. In the 1990s, the Montana Supreme Court solidified right-of-way and easement law based on two lawsuits that arose in the Bitterroot Valley. It turns out that Congdon argued those cases to keep the roads open and won.
“I’ve been there and done this. It’s not an issue that you don’t have the people - you didn’t have a lot of people that have done it before,” Congdon said. “It seems to me there’s enough interest in the room, based on the testimony, that if you’d like to do it, we don’t have a problem. We have the forms, it will take some time. But I suspect it’s the first of a multitude of several roads that have the same question.”
The motion was to allow Congdon to file the legal complaint related to the Cyr Iron Mountain Road but Commissioner Roman Zylawy amended the motion to start working on all the roads with county rights-of-way with the Cyr Iron Mountain Road being the first priority. Once the complaint is filed, Congdon can ask the judge to order Wheaton to open the gates while the case is proceeding.
“If ever there was a case for a county road to stay open, it’s this one,” Zylawy said.
After the meeting, former Forest Service employee Glenn Koepke said the Forest Service could have helped prevent the closure before now.
“When this came up 10 years ago, at one point, I think I blurted out something like, ‘You know, the Forest Service and the county should have figured this out a long time ago. You’re the two ruling parties in its history. How hard can that be?’” Koepke said. “Somebody wasn’t doing their homework, and it’s just been kicked down the road.”
Too many people like Wheaton buy property in Montana and close off roads and rivers that should be accessible to the public. The Public Land Water Access Association reports more than dozen challenges of such actions are active now and dozens more have been dealt with over the past few decades. With many of these new landowners being wealthy and with counties' budgets stretched, sometimes counties are reluctant to fight to keep roads open.
In response, Rep. Paul Green, R-Hardin, is sponsoring House Bill 486 in the Montana Legislature to increase the daily fine for blocking a public road to $500 from $10.
“Large swaths of Montana’s lands are being swallowed up by out-of-state interests, large corporate ranches desiring secluded hunting on public land as well as their own private property,” Green testified Friday. “A $10-per-day fine has been so anemic that I could not find a single instance where someone has been fined.”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.