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Cherry Creek Road

Sweetgrass County

As you will note in the Billings Gazette story below, PLWA has been involved in this case for a long time. Over 10 years ago we negotiated a settlement , with the hope and understanding that the Forest Service would work out a permanent solution. This historic road has been used by the public for years, and forest management activities such as timber sales and stand improvement would have been impossible without the road. .

We have always asked the Forest Service to bring this Eminent Domain proposal out in the open so that the public owners of that land could lend their support.

Although Eminent Domain or “condemnation” has been used very sparingly during the last several decades it's usefulness has recently become more critical. Landowners in many areas have locked the public out of public lands to establish their own private playgrounds , or to profit from selling access to public wildlife on the forest .

When private land exists behind National Forest land the owner has the legal right to establish access . Two different laws say so. On the other hand, the public’s opportunity to access our blocked land is often only possible through Eminent Domain. That is why the agencies were given that power in the first place. It's not a land grab ! Landowners are compensated for the land used to provide access.

Forest Service employees work for us, the public. We pay their salaries to manage the lands which we should be able to use and enjoy for any lawful purpose. (We should never accept so called "Administrative Use" arrangements where only the Forest Service but not the public, can access the land.)

If you believe we should have access to the blocked 16,000 acres in the Gallatin Forest , it would help to let your elected Federal Senators and Representative know how you feel.

John Gibson , President

Note: contact information for legislators is on our website.

Here is the contact for the County Commission :

Sweet Grass county Commission Chairman - Phil Hathaway
PO Box 888
Big Timber, MT 59011

Story Below Courtesy of Billings Gazette

Eminent domain considered for getting access to forest
BRETT FRENCH Of The Gazette Staff | Posted: Monday, October 12, 2009 11:45 pm

After years of negotiations have failed to gain access across one mile of private land to reach 16,000 acres of the Gallatin National Forest, the agency is considering pursuing an easement through the use of eminent domain.

"We certainly don't approach the use of eminent domain lightly," said Marna Daley, the Gallatin's public-affairs officer.

The agency has rarely used the big-stick approach to gain access in Montana and elsewhere in the United States, if that works. Even now, Gallatin Forest officials are hesitant to use the word, but they say there are limited courses of action left.

"There's a discussion right now with the Washington office about our next course of action," said Bill Avey, Big Timber District ranger. "I explained to my boss that it appears we're out of options at this time."


The land at the center of the negotiations is located about nine miles south of Big Timber, east off of Highway 298, which parallels the Boulder River. The valley's scenic terrain at the eastern base of the Beartooth Mountains was featured in the Robert Redford movie "The Horse Whisperer."

The Cherry Creek Road crosses about a quarter-mile of Lee Smoot's property and then three-quarters of a mile of George Matelich and Michael Goldberg's ranch before reaching the forest boundary. Matelich and Goldberg work for Kelso & Co., a New York equity investment firm.

According to Forest Service research, public use of the road dates back to 1896.

A ranger cabin existed on the forest in the early 1900s. Because it is the closest forest access to Big Timber, the road and mountains it leads to are popular with big-game hunters.

In the Gallatin's travel plan, the area is specifically geared to motorcycle use, offering a number of loop routes on single-track trails.

Despite the well-documented historic use, in 1991 the Sweet Grass County commissioners declined to declare the road a public route.

In 1997, the Smoot family sold a portion of its ranch to Matelich and Goldberg. The new owners locked the gate across the Cherry Creek Road where it crossed their property, denying the public access to the forest lands they'd enjoyed for more than 100 years.

Although the Forest Service was able to negotiate a temporary easement in 1997 and 1998, it allowed public access only between June 1 and Aug. 31. When the road was closed again, a petition drive rounded up 500 signatures supporting reopening the road to the public.

Threat of court

In 1999, the Public Land/Water Access Association stepped in to fight for public access to the forest.

Initially, the Gallatin National Forest joined in the lawsuit, but was later told by the Department of Justice that it had compromised its standing with a 1994 document it signed when conducting logging operations that used the route. So the agency backed out.

Before going to trial, Matelich offered PLWA a 10-year easement, which the group signed.

"Our thinking at the time was that in 10 years the Forest Service would do something," said John Gibson, PLWA president. "They left it up to us, and we didn't have the money to fight another lawsuit."

Forest Service officials claim PLWA shouldn't have signed the agreement without consulting them. But Gibson said the group had no choice. It was a one-time offer, take it or leave it.

"They should have been the ones fighting for access, not PLWA," Gibson said. "Their office of general counsel was very timid at the time. We can only go up against so many millionaires."

Negotiations fail

Over the past 10 years, the Forest Service has been making offers to the landowners in hopes of finding a compromise. In addition to outright purchase, the dollar amount of which is limited by law, the ogency also sought other access points and considered land exchanges.

Because of the topography, the Forest Service had few options.

Building a new road by coming in from the east by Lower Deer Creek would cross an inventoried roadless area and require expensive road building. In fact, out of 13 different routes identified as possible access points to the forest in the Big Timber District's transportation analysis, only four survived scrutiny, and three of those used the same Cherry Creek route.

Without willing landowners, the Forest Service couldn't find any other access points. Landowners turned down the Forest Service's offers for a variety of reasons, including the traffic, low cash value offered and a perceived loss of value to their land if the road were opened to the public.

"We tried to (negotiate) years ago, but they don't want to pay any money for it," said Smoot, who owns the property next to Highway 298.

"They offered my dad $5,000, and he said he'd give them that much to stay out."

Smoot said his family always assumed the road was public until his father was approached by the Forest Service to sign papers guaranteeing public access.

"We tried to control access after that," he said. "We never tried to keep anybody out."

But Smoot did erect a sign saying the road was not owned by the Forest Service. Smoot's fence is also adorned with anti-Semitic and anti-government signs, prompting locals to call it the "hate gate."

Next option

Smoot said he doesn't care if the Forest Service claims eminent domain.

Under the procedure, he would be paid for the easement what the U.S. Department of Agriculture agrees to pay, an amount constitutionally required to be "just compensation."

Matelich and Goldberg couldn't immediately be reached for comment.

Avey, the Big Timber District ranger, said Matelich and Goldberg are aware that the agency is considering the use of eminent domain but hopes it doesn't come to that. He praised the landowners for always amiably discussing the issue.

The forest's request to wield the big stick of eminent domain now goes to Tom Tidwell, chief of the USDA and the former Northern Region forester in Missoula. If approved by Tidwell, the request would then go to Tom Vilsack, the secretary of agriculture.

"At that point, if we end up going down that road, it's handled by the Department of Justice," Avey said.

"Meanwhile, we're still pursuing other options to find a negotiable solution to this," he added.

Contact Brett French at french@billingsgazette.com or at 657-1387.

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Public Land/Water Access Association Inc. or PLWA, is a citizen group organized and operated under the Montana nonprofit corporation act.

Articles and Information on this site represent the opinion of the writer and are not intended as legal advice. Legal counsel may be needed in dealing with specific access situations and issues.
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