County Road #71/Adobetown Road Summary

In October 2020, PLWA supporter Andy Thomas reached out to PLWA about lost access on County Road #71 in Madison County. The road was established in 1871, and then further established by petition in 1916. The road makes its way through private property, ultimately providing important access to BLM lands. Unfortunately, the land owner installed a locked gate and posted “Private Property” and “No Trespassing” signs on the road.

In 2013, at the behest of the previous landowner, a sympathetic former commissioner wrote a letter suggesting a reroute of the road. Until October 2021, there had been no move to abandon or formally reroute the original road. There have been multiple reports of harassment and repeated closures by those who try to access the road, whether via the original route or by the “suggested” reroute.

Mr. Thomas reached out to the commissioners to get clarification as to where the public can legally access the road to reach BLM lands, causing them to recently confer with the landowner and came up with a temporary agreement. However, the agreement produced the suggestion of an obscure and hazardous reroute. Subsequently, on two separate occasions in the fall of 2020, the landowner denied access to Mr. Thomas, charging him with criminal trespass and failure to obtain landowner permission to hunt, even after he followed all recommendations of the Commissioner and the Sheriff. After discussion with the Sheriff’s Department and the Game Warden, no citations were issued, largely due to uncertainty as to where the road currently exists.

In November 2020, PLWA was brought in by Mr. Thomas to work with the landowner, Madison County Commissioner, and to represent the public interest. This represents both an important access issue in that we must prevent legal access from being blocked off, but also an opportunity to work productively with landowners, government officials, and the public. Progress was made in the Spring and early Summer of 2021 with enormous public support of access, and the road being declared public by County Commissioners, and obstructions removed by the land owners, Heroes and Horses. PLWA was happy to work with all parties involved to ensure access remains available while respecting the County’s goals, landowner interests, and most importantly the public’s rights to access.

This fall we were saddened to learn of quiet moves by County officials working with the landowner to abandon the road without proper adherence to public procedure or transparency. We continue to watch the situation as it develops. The road remains public and open at this point, though Heroes and Horses (the landowner) continue to illegally build within the public right-of-way.

UPDATE: September, 2022

At a recent meeting of the County Commission, complaints by the public regarding the continued building by Heroes and Horses in the public right of way were shut down. Commissioners and the County Attorney stated that they will no longer address complaints regarding Adobetown Road at public hearings. The landowners have initiated construction of a large gate at the entrance of the public road within the right of way, continuing the process of placing multiple buildings and objects on publicly eased thoroughfares. This is disheartening considering that the landowners have undertaken the majority of this building after being alerted about the illegality of such action by PLWA, at County Commission meetings, and against overwhelming public sentiment in their community.

PLWA will be reaching out to the County Attorney about this and other Madison County issues.

UPDATE 3: MAY, 2022

ADOBETOWN ROAD ABANDONMENT PETITION DENIED!

An incredible show of public support for access was evident both at the hearing for the Adobetown Road Abandonment Petition and the decision meeting when county officials concluded there was not sufficient support nor reason to abandon the historic Adobetown Road.

 Public voices across the spectrum spoke about the importance of public access in Montana, the role that public lands and waters played in folks' childhoods and in their ability to recreate, and the place they hold in the history of our state. Others including PLWA brought up the Montana Code Annotated and due process required to abandon a road, and the steps that must be satisfied during such an endeavor. It became clear during the talks that the public overwhelmingly supported keeping the road open, and that an acceptable alternative proposal had not been offered.

As speaker after speaker relinquished their additional time to one person again and again, a summary of the efforts involved would be incomplete without the mention of Andy Thomas' work to protect public access in Madison County. Andy and his wife Abby both worked tirelessly to ensure that the statutes were followed and that members of SouthWest Montana did not lose access to their public lands. We thank them both for their efforts.

UPDATE 2 : May, 2022

REMINDER: The Adobetown Road public meeting for the decision on Adobetown road will occur on Tuesday, May 24th at 1pm.

Webex WILL be available, and members of the public may also join in person.

WebEx Login:

https://globalpage-prod.webex.com/join 

Meeting Number: 182 863 8009 

Password: VCMadison

Phone: 408-418-9388 

Password: 182 863 8009# 

Numeric Password: 826 234 76# 

Press *6 to mute or unmute your phone 

Agenda is available here.

UPDATE 1 : May, 2022

REMINDER: The Adobetown Road public hearing will occur on Tuesday, May 17th at 6pm at Alder Fire Hall.

Webex WILL be available, and members of the public may also join in person.

WebEx Login:

https://globalpage-prod.webex.com/join

Meeting Number: 2551 180 8554

Password: VCMadison

UPDATE: April, 2022

Madison County Commissioners held a short notice meeting on Tuesday, April 19th regarding a petition received to consider abandoning Adobetown Road. The agenda for the meeting is available here. The petition was signed by 10 members of the community but was not available for the general public to review at the time of the meeting. The motion proposed creating an alternate route to the BLM lands via Williams Road.

Due to the fact that currently Adobetown Road provides access to two or more private land parcels, the Montana Code Annotated (MCA), noted here, requires a petitioning and review process to occur before consideration of closure or abandonment. The general public raised concerns such as:

• Possible bias among the Commission. Specifically that the public had raised an interest in having Adobetown Road opened to the public and unlocked for a number of years and had experienced significant delays in the process of reviewing and approving this action, with final consensus and road opening only occurring in the summer of 2021. In contrast, the petition and process for abandonment of a public road (Adobetown) has seemingly occurred with Commission support in less than 6 months.

• The historic significance of one of the oldest roads with an established easement in Virginia City and in the state of Montana being abandoned.

• A landowner expressed that the further portion of the road has not experienced high use by the public during his or his father’s lifetime, and is located in an inconvenient place near his home, and that perhaps the recent opening of the road would constitute new higher volume of traffic rather than a restoration of use during his lifetime. He stated that he would prefer an alternative route being established.

• PLWA Executive Director Drewry Hanes noted that per MCA and due process, there should be consensus about abandonment by all land owners affected by the proposed abandonment proposal, especially before monies being spent on an extensive review process. In response to a Commissioner’s thought about road survey, PLWA’s response was that the road has been confirmed to be public already at previous meetings and codified by the Committee, and even road re-location does not void a recorded easement. Additionally, during this review process, there would need to be a proposal that provides “substantially the same” or superior access via the new road, and that the current access should not be closed before an alternative access route is established.

• The Virginia City Mayor proposed that a member of the viewing committee be a VC official and the Committee agreed to take that into consideration. The Mayor will work to nominate a candidate.

• A member of the public proposed that one member of the viewing committee be a member of the public to represent public interests and this was not deemed acceptable by the Commission.

• The County Commissioners agreed to scan and upload the petition to the public website so that it could be reviewed.

• There was concern about the short time frame to make the decision (30 days), how the viewing committee was to be composed, how a “substantially similar” road would be defined, and setting the meeting at a time when the public could attend. It was decided that the meeting would be moved to a larger location (likely the community center in Virginia City) and to occur at 8 pm on Tuesday May 17th.

The current concerns are regarding moving the location of Adobetown Road to provide substantially the same access to the public lands beyond, the due process required by the MCA, public comment on the issue, and the current continued public road status of Adobetown.

Montana public road law may be reviewed here.

The petition is available to review here.

UPDATE: December, 2021

Residents met with County Commissioners, urging them to keep the road open. Read more about the public pressure to maintain Adobetown Road as a public highway in Brett French’s article here.

UPDATE 2: October, 2021

At the October 26th Madison County Commission meeting, strong public participation protected public access at Adobetown Road. Several concerning things came to light at the meeting that was heavily attended by the public, as well as by representatives from landowner Heroes and Horses and Garnet USA. A summary of the meeting:

• Commissioner Dan Allhands stated initially that he filled out the application for ROW (right of way), but after some questioning, he admitted that landowner Heroes and Horses had provided the content.

  • Attendees in the public pointed out misinformation and errors in the application and learned that the application had not yet been mailed. As such, an agreement was made to allow the public be a part of the process as required, and a meeting was set for Tuesday November 2nd at 6pm.

• Commissioner Dan Alhands was asked about the reason for applying for a ROW and he stated "to get an alternate ROW....that's it"

  • Public member Andy Thomas pointed out that the application reads, in answer to "reason for request of alternate ROW" that "The county wishes to abandon a county road..." Andy noted that the county does not wish that, reminding Commissioners that at the meeting on May 11th, 2021 there were ~50 people in attendance and the vast majority were in support of keeping the road open, in its current location. This was reflected in the minutes from that meeting.

  • Commissioner Allhands was asked if he is truly representing the public interest by signing the application if that many people are in support of not abandoning the county road, and why he signed an application authored by Heroes and Horses, a private landowner.

    • He responded the application requires a government entity to sign off on it, which is not confirmed.

• Attendees discussed the need for better transparency from the commissioners, the need for the commissioners to be more receptive of the public opinion, and the need to follow public processes in place.

As the ROW application to the BLM had not been submitted, the public and Commissioners Agreed to re-write the application and have another meeting on November 2nd in order to allow the public to provide comment.

On October 27th, Lori Buyan, Administrative Assistant for the Commissioners stated that "Horses and Heroes has withdrawn their request for an alternate route for Adobe Town Road...". Subsequently the meeting for Tuesday November 2nd, 2021 has been cancelled.

Adobetown Road remains a public county road. PLWA will watch the situation as it develops further, and welcomes updates from locals in the area. Meeting minutes are not available for any October County Commission Meetings, but will be posted when they are.

UPDATE: November, 2021

Read the Montana Standard article about the County Commission meeting here.

UPDATE 1: October, 2021

PLWA was notified of a concerning action by County Commissioners and the landowners to quietly abandon the recently opened Adobetown Road in Madison County after a meeting on October 12th. Though constituents were told that the issue would not be on the agenda, the motion was brought forth and discussed, being moved initially forward without the chance for open public comment. The motion and accompanying letter from the BLM are available for review here.

Strong and sustained public support and effort from citizens along with legal arguments from PLWA and Goetz Law Firm resulted in the gates coming down on this county road this summer. What seemed like a win for public access has now quietly changed course and suddenly become a petition to abandon the road. Per the laws of Montana, the county road being proposed to replace the road in question must of the same quality of access to the public, be built by the county, and go through the public process. The proposed road would not reach the current BLM portion of Adobetown Road, and in fact the petition states there is a currently used road which PLWA staff was unable to find any traces of when driving the area two months ago.

This disturbing change of course in abandoning the road and proposing truly inferior access for hte public reflects the back and forth of Commissioners during the process - at one meeting declaring the road public and allowing for public access and at a following meeting backtracking and proposing further discussion. PLWA has in the past played an important role in brokering access agreements that engage with landowners and the public to enhance public access and facilitate meeting goals of private landowners, such as with Cherry Creek. However, for successful outcomes there must be transparency, integrity, and a spirit of partnership. 

We urge members, especially those located in Madison County to attend the County Commission Meeting on Tuesday, October 26th, at 1 pm in person or remotely to participate in the democratic process.

UPDATE: August, 2021

After a productive meeting with the current landowning group where PLWA discussed the history of concerning access issues, laws regarding easements and public traffic, and importance of all parties respecting Montana public access laws and private land ownership, all parties left with a hope for positive forward momentum. The land owner has mentioned petitioning the BLM for alternative access, and we at PLWA have encouraged an amicable access environment on the present Adobetown Road during this process. All parties are aware that any new access would have to serve the public as well as the current access does, and PLWA remains interested to be part of the process and comment moving forward.

In mid-August PLWA drove the Adobetown Road/County Road 71 and all gates were open for access, and signage now appropriate regarding respecting private property on either side. For those trafficking the road, note that there are structures built onto the public easement area on either side of the road upon first entering the property, which must be bypassed to access the BLM section beyond, and the road is not currently signed. Note that on onX the road is also mislabeled as co-occurring with Williams Creek. The correct road is slightly further north-west off 287 and appears as broken line.

UPDATE: June, 2021

PLWA attended an emergency hearing of the Madison County Commissioners regarding the situation on Adobetown Road. Reports of the road being re-gated and of members of the public being harassed when trying to use the road were brought up. Landowners discussed that they were concerned about livestock escaping if the public were to use the road, and requested that the road remain closed until a new road re-route petition could be successfully proposed and approved by the BLM. The landowners also spoke of concerns about the 60 ft width of county roads and that they had constructed new buildings within this area that would likely have to be taken down. PLWA noted that per MCA 7-14-2615 the county road would have to be petitioned to be abandoned in order to remain closed, and such a petition had not been brought before the public or the county, thus the road must remain open. In addition, per MCA 7-14-2134 all encroachments must be removed and that this was the duty of the County Commissioners to see that such action was carried out, whether they be gates or buildings. The width of the road is 60 feet for a county road, but notably the road in question duly meets the level of evidence for RS 2477, which in itself carries a 66 ft width easement, negating the consideration that a road established in the 1800s would require an easement width of only a “wagon-width”. Further, a failure to remove encroachments or illegal posting of state and federal lands carry penalties per MCAs 7-14-2136 and 45-8-115.

PLWA supports action that makes available to the public good and satisfactory access to their public lands, without compromising current access, per the law and MCA. If a re-route is proposed that does not cost the public money and provides equitable or superior access, as per the law, PLWA would not hesitate to advise in this process. We do note however that per the law any petition to close access that would involve a road that accesses two or more PRIVATE parcels beyond must have total consent from all parties, and must go before the Madison County Commission for approval if it accesses public lands beyond.

County Commissioners summarized at the end of the meeting on record that the road must remain open during any action by landowners to form a re-route petition, and that any action that would constitute closures, obstructions, or harassment would not be tolerated.

UPDATE II: May, 2021

We put out the call and you showed up! After a great show of support from public access advocates at the Madison County Commissioners’ meeting tonight, the Commissioners declared that County Road #71/Adobetown Road is open for public use. This recognition of the road’s public status was a long time coming, but the ability of all parties to come together is a great breakthrough. Thanks go out to the tireless dedication of our supporters and public access advocates, the legal work of our team at Goetz, Baldwin, & Geddes, and the Commission for their time and attention to the matter.

We will continue to monitor the issue to ensure that both the Commission and landowners follow through on their promise to constituents.

Read the minutes from the meeting here.

UPDATE I: May, 2021

During a County Commissioners meeting held April 27th, 2021, it seems that the pendulum is swinging the other way. The county road/public access CONTINUES to be blocked, with one commissioner commenting that “if he had to decide today”, he would allow the gate to remain closed. It seems the facts of law and bulk of evidence presented are being ignored at this point, in this case that this is a petitioned and established road from 1871. There is a mountain of evidence in the commissioner's journals and which has been presented to the Commission for consideration.

A Madison County Commissioners meeting has been set for May 11th, at 6 pm to further discuss the matter.

The agenda is available here .

Our legal advisory letter to the Commission is available here.

The more voices that can attend in person or remotely to support the removal of the gate and advocacy for public access in Madison County, the better.

UPDATE II : April, 2021

A second Madison County Commissioners Meeting will discuss the issue of Adobetown Road/County Road #71. While the first meeting showed good progress, there has been a suggestion to use an alternative, inferior route once again. The meeting will occur April 27, 2021 and this issue is scheduled for 3 pm. The agenda is available here.

UPDATE I: April, 2021

On the Adobetown Road (a petitioned and established county road), the new land owners have gated and locked the original road, and the proposed temporary reroute is now blocked by a jackleg fence that the new landowners constructed across the "reroute". Access is once again entirely encumbered. This development is unexpected after Commissioner Allhands stated he would mark the temporary reroute on February 1st, 2021.

PLWA President Bernard Lea and supporter Andy Thomas attend the Madison County Board of Commissioners meeting in Virginia City on April 13, 2021 to advocate for the removal of the locked gate on County Road #71. Bernard Lea responds to questions and advocates for the removal during the discussion. Read his summary of the meeting here:

Andy has researched the county records and has presented evidence that the road is indeed a county road, which the County Commissioners agree with. The County Commissioners met yesterday to listen to members of the public relative to road issues.

I was able to attend the meeting virtually. The members of the public, including Andy, registered their complaints on roads that were documented county roads with obstructions preventing access that has been happening for several years. They were adamant that the Commissioners could no longer ignore the situation. The attendees, including Andy, expressed themselves with determination. The Commissioners expressed concern that the road originally petitioned and accepted may no longer be in the original location and there was conversation eluding to possibly relocating the road to serve both the public and the landowner. I then pointed out that they should not agree to a new location without acquiring an easement for the new location before releasing the present easement. They agreed this will be done.

I also stated that there are court decisions where this same issue has come up and judges have ruled that while there may be an easement, the location is questionable because the location may have been moved over the years because of weather, etc., In such cases, the order was for the county and the landowner to agree on a location since the easement does not go away simply because of a change in location.

The Commissioners also arranged for the Sheriff to offer his input and called him on the phone. He stated he would participate in any negotiations to resolve the issue. They agreed to an on site visit next week and talk with the landowner.

I also pointed out that it was very satisfying to witness the Commissioners meeting with the public and working on a solution. The landowners want it resolved as soon as possible and the Commissioners agreed they would take action.

Bernard Lea, President, PLWA

It seems like the situation is showing good progress. PLWA applauds all parties for working together towards a solution that has the ability to include input from the public, government, and landowners. We look forward to continued movement on this important access issue.

UPDATE: March, 2021

PLWA President Bernard Lea sends a letter to the Madison County Commissioners about County Road #71. In this letter, PLWA makes a legal argument for the removal of the gate, pursuant to Sections 7-14-2133 7-14-2134 of the MCA. Mr. Lea also references the similar situation encountered recently with the removal of the locked gate at Hughes Creek. Read the letter here.

UPDATE: December, 2020

After several County Commissioner meetings, access is effectively blocked off by the owner completely. Madison County citizens are asked by law enforcement to avoid trafficking County Road #71 until a solution can be worked out and they have a chance to confer with outside council. PLWA begins further research on the issue and elects to pursue it as a formal access issue.

The original September 2019 Madison County Road Review Committee Recommendations are available here.