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Montana landowner wins road access lawsuit

Montana public land

This road that once provided public access to BLM land in the Missouri Breaks has been ruled legally closed to the public by a Fergus County judge.

Public land access is a hotly debated topic in the West and is often something a judge must untangle in court. Recently, Montana District Court Judge Brenda Gilbert ruled in favor of private landowners Mark and Deanna Robbins after a five-day trial couldn’t convince her to side with public land advocates and, specifically, the Public Land/Water Access Association (PLWA). The trial, which included over “80 exhibits, a visit to the road, testimony by expert witnesses and the judge’s careful observation of the ‘witnesses’ demeanor while they testified’” resulted in an interim order in favor of the Robbinses over the use of Mabee Road in Fergus County, Montana, the Billings Gazette reports.

In 2007, the Robbinses posted no trespassing signs and locked a gate across the road, which is located north of Roy, Montana, spurring PLWA to start “pushing county officials to recognize the route as open to public use,” according to the Billings Gazette. Also, because Mark Robbins is a licensed Montana hunting outfitter, once the route was blocked, he had “easier access to public lands and the wildlife they contain.” Further, Robbins has a Special Recreation Permit via the Bureau of Land Management, which gives his outfitting business—Armells Creek Outfitters—permission to hunt on 47,660 acres of BLM land. 

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During the trial, PLWA used maps as evidence to support their case; however, Gilbert wasn’t persuaded that the Robbinses were at fault due to the documentation provided. 

“Lines representing old roads on old surveys and old maps are not substitutes for competent evidence of actual public use,” Gilbert wrote in her decision. In fact, during her visit to the road in question, she found an overgrown two-track “unable to support public use,” according to the Billings Gazette. She did not feel that PLWA proved that the public use was “open, notorious and adverse” to require the road blocked by the Robbinses to be made public.

“The evidence fails to clearly and convincingly demonstrate that the seasonal recreational use of the disputed trail constitutes sufficient adversity to the landowners,” Gilbert wrote.

The interim order can be appealed with 20 days and, at this time, it was still undetermined whether PLWA would appeal. After 20 days, the judge will enter her final judgment.

15 Comments

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Michael G. - posted 2 weeks ago on 08-29-2019 08:49:27 pm
Sweet Home, Or
goHUNT INSIDER

I wonder what the land owners would say if I decided to get dropped off by helicopter onto that BLM land and hunt it for two weeks. I'd bet there would be some issues to deal with. Public land is just that, public land. Where there's a will there's a way. Hunt where you can no matter the obstacle. Good luck on your hunting ventures and don't let the little things stop you. God bless.

Johnny F. - posted 3 weeks ago on 08-28-2019 10:41:47 pm
goHUNT INSIDER

I am a land owner and to get to my grounds I have an easement that allows me access.
Here’s what I don’t like about this Montana situation.
Read the end of the story. Robbins doesn’t own the land he runs his business and sells hunts. 47,600 acres of BLM is landlocked and you can’t hunt it. Our public land that we own is all for him. We will pay his land tax and any improvements and he gets to sell hunts on it.
Reread this part;
Further, Robbins has a Special Recreation Permit via the Bureau of Land Management, which gives his outfitting business—Armells Creek Outfitters—permission to hunt on 47,660 acres of BLM land.

jody.warner
Jody W. - posted 4 weeks ago on 08-22-2019 11:28:15 am
Omaha, Nebraska
goHUNT INSIDER

i ran in to this issue in Colorado last year and Wyoming a few years earlier. In Colorado, they put up some fence posts and put no tresspassing signs on them where the forest treeline began, when the maps and OnX put the property line 4-500 yards away. In Wyoming, I have seen fences moved to surround water holes and effectively make them private. I get people who own property protecting there property. I own hunting ground and its not fun watching someone walk through when you have signs posted. As with public ground people who arent so nice, there are private land owners who arent so nice. People are people, some good some bad. This sounds like a situation where the RMEF should get involved here.

Thomas L. - posted 4 weeks ago on 08-22-2019 05:57:01 am
goHUNT INSIDER

@Brian B. the problem is the road was documented as a public road on old maps. Just because something isn't maintained doesn't mean it stops being public. Especially when the landowner just decided one day to chain the gate and not allow anyone in to maintain it. Then 12 years later a judge says well its not maintained so who cares what the old plot maps say. How would you like it if one day your neighbor walked over and chained up and fenced off a piece of your property. Perhaps you don't notice for a few years and then a judge says I know what the plot maps and deeds say but he has been maintaining it so you're out of luck. Stop looking thru a blinded lens. No one is asking to trespass, people are asking to use a documented public roadway that was illegally closed. Period. I can't tell you how many times I have had land owners move fences, markers, etc hundreds of yards and in some cases miles to keep public out.

Brian B. - posted 4 weeks ago on 08-21-2019 09:40:57 pm
goHUNT INSIDER

"Thats about as arrogant of a comment as it gets. While we are making blanket statements with no proof"

What exactly is arrogant, Josh? Being a landowner will greatly change your perspective, especially when you are constantly dealing with trespass and poaching issues from the hunting public like I do. Many guys, especially out west, think they deserve access to everything.

And your assumption can't be further from the truth. It is the exact opposite. I came from a poor family. My attitude about it is do what I did, work 2 jobs, save up and buy your own land. Many of the people I talk to who bitch about having no private land access blow their money. I expect people to do what I did, earn what they want, not to be given. Hence why I get annoyed when people complaining about a private landowner doing what is well within his rights. If no public road exists, he is well within his rights to gate it off.

Acting high and mighty because you allow your neighbor to access to his pivot line? Talk about an arrogant comment. That is called being neighborly. I wouldn't even feel the need to mention something like that. I do things like that all the time with my neighbors. It is called cooperation. I even let some of my neighbors hunt on my land. But allowing your neighbor access and allowing the entire PUBLIC access your land.....there is a big difference. If you want to allow anyone access to your land, you are entitled to it. But these folks shouldn't be blasted for gating off a private road onto their land.

I am always inviting people to come hunt with me on my private land. What pisses me off is when people think they have a right to my land. There is a big difference between the two.

Josh S. - posted 4 weeks ago on 08-21-2019 08:09:13 pm
S.E. Idaho

"If some of you owned your own land you would have a different perspective."

Thats about as arrogant of a comment as it gets. While we are making blanket statements with no proof, Brian, I'd like to posit that words like yours are usually spoken by folks that inherited what they have or bought with money they didn't earn.

I do own my land and it is a quite small acreage so forgive me for not being at a higher station in life. Nonetheless, when I fenced my pasture I left a passage for the farmer to drive across to access their land located behind me so they could maintain their pivot line conveniently. I gained absolutely nothing from the farmer by doing this. Some folks just were raised right and know when to do the right thing.

I also have a natural stream on my land that I do not block access to. You won't find a single "No Trespassing" or "No hunting" sign on my land. The fact that I own a small piece of land makes every square foot of it more important to me, yet I still maintain enough humanity to share it.

Brian B. - posted 4 weeks ago on 08-21-2019 06:18:20 pm
goHUNT INSIDER

They can gate the road because it isn't a public road and is going across their land. Again, it isn't a public designated road nor being maintained by a public agency. Why the general public feels they should have access across private land is beyond me. I am a landowner and if I have trails going through my land that doesn't mean others should be able to have access to it as well. Just because it creates more of a challenge to access public land doesn't mean the landowner has to allow the access. If some of you owned your own land you would have a different perspective.

news
Dustin F. - posted 4 weeks ago on 08-21-2019 01:51:21 pm
Carmel Valley, CA

I echo @JoshS, "Oh really, Judge Gilbert? The road has become overgrown behind a gate that's been locked for 12 years, brilliant detective work."
This suit smells like fish. Looks like this outfitter wants their golden bow as well as their spectacular location adjacent to our shared public resource. I find it interesting that the judge discredits the historically relevant mapped roads. Seems like the necessary appeal needs better representation. If in fact it is a publicly accessed road; a just appeal will redeem this judges lack of good reasoning. I don't blame the landowner for trying to secure their borders, but believe there should be a better resolution to achieving a balance of shared value and landowner objectives. Looking at their guiding fees, I find them more reasonably priced. Perhaps their "best kept secret" business model will develop a better approach to supporting our hunting community. They are a listed outfitter on GH: https://www.gohunt.com/outfitter/armells-creek-outfitters-0
http://www.armellscreekoutfitters.com/

Josh S. - posted 4 weeks ago on 08-21-2019 08:43:18 am
S.E. Idaho

"In 2007, the Robbinses posted no trespassing signs and locked a gate across the road,"
" In fact, during her visit to the road in question, she found an overgrown two-track “unable to support public use,”

Oh really, Judge Gilbert? The road has become overgrown behind a gate that's been locked for 12 years, brilliant detective work.

This kind of stuff happens in Idaho too and likely anywhere three is public land to dispute over. It is so aggravating. PLWA should get BHA involved if they want a chance with the appeal...

Robb B. - posted 4 weeks ago on 08-21-2019 05:01:41 am
goHUNT INSIDER

Unfortunately this happens more than we all realize in Montana. I know of at least 1 other similar story regarding a landowner putting a chain across the road and blocking off access to thousands of public land. Also a situation of outfitting and money involved.

Mike P. - posted 4 weeks ago on 08-20-2019 08:20:52 pm

I say, let em have it but since he is the only person with access, give him a healthy tax bill for the rights and privledge for hunting ang making money off the peoples of America' land!!!!! - so much so he will wish he left the gate unlocked so us no good montana neighbors could access our land!!!!

SETH D. - posted 4 weeks ago on 08-20-2019 06:24:36 pm
Sunny New Mexico
goHUNT INSIDER

3 issues:

1. How long have they owned this piece of property?

2. How long have they been outfitting on it?

3. Why now?

Kevin H. - posted 4 weeks ago on 08-20-2019 05:37:12 pm
Springfield, OR
goHUNT INSIDER

Mainly what they need is proof from adequate (people who actually used the road every year) public testimony that the road has been used for recreational access, on a yearly basis, prior to when it was gated and locked by the landowner in which the road goes through. This is called prescriptive easement with historic public access. Only one Montana statute specifically addresses prescriptive easements. Section 23-2-322(1), MCA, provides that a prescriptive easement is a right to use the property of another that is acquired by open, exclusive, notorious, hostile, adverse, continuous, and uninterrupted use for a period of 5 years. BOOM and there you have it! Get to is boys!

Clifford J. - posted 4 weeks ago on 08-20-2019 05:08:44 pm
goHUNT INSIDER

Really not great info in this article. Here's from the gazette.

"Mabee Road travels north from the town of Roy with the county’s easement ending at the Robbinses’ gate, Gilbert wrote. From there the road continues for another 20 miles across private land before reaching BLM acreage that is located south of the Missouri River Breaks. Mabee Road eventually intersects with Knox Ridge Road, which runs east to west between Highway 87 and Winifred.

PLWA introduced several maps — the oldest dating to 1903 — as evidence, which depict a route that the group contended was Mabee Road, although the judge disagreed.

“Lines representing old roads on old surveys and old maps are not substitutes for competent evidence of actual public use,” Gilbert wrote."

WARREN L. - posted 4 weeks ago on 08-20-2019 04:58:32 pm
goHUNT INSIDER

how can anyone gate a road and get away with it if it is not on there property? i sure hope PLWA appeals with better proof.