Montana HB 550 Oppose - Fed-Aid HWY Program "Open to public travel" requirement

"Open to Public Travel is defined as a segment of road available for public use except during periods of extreme weather or emergency conditions, ... open to the general public"
~ Montana Department of Transportation

UPDATE: HB 550 passed 2nd House reading on 2/28 - 58-42. Not a single Republican voted to uphold the Federal-Aid Highway Program requirements for Montana State funding of public monies providing public access. Please contact your Representatives and oppose this bill before 3rd reading.

HB 550 Fuel Tax Bill was amended today, Judicial Committee Executive Action.

This bill can go before the House for a 2nd reading as soon as tomorrow afternoon. So please email your Representatives (block email addresses below) as soon as possible. 

Key Points to oppose HB 550 -

1. Whether State public funding or federal public funding is used for road maintenance equipment and the construction, reconstruction, maintenance, and repair of rural roads, the public should, as the federal government has determined, receive public access for public funds.

2. The Montana Department of Transportation Fuel Tax Allocation language involving "open to public travel" and "public road" is straight from the Federal-Aid Highway Program, which contributes funding to Montana through a variety of sub programs.

3. The Federal legal definition of "highway" includes roads & trails.

4. 23 USC REQUIRES State and local compliance with "public road" designation and "open to public travel" if they are to be eligible for these federal funds for "construction, reconstruction, maintenance, and repair of rural roads". This is not negotiable.

 

5. Court is not the first or only step in a process. MCA 7-14-2622: Recognition Of County Road Route By District Court, explains that the first step in this process of "adverse use" is with the County Commission. You have to exhaust the administrative process before proceeding to court. Redfield's bill, concerning "adverse use by the public", pg 4, (19)(a)(iv) inserts, "as determined by a court of competent jurisdiction", seemingly bypassing or perhaps eliminating County Commission process and does not cite MCA 7-14-2622, which would add clarification of the "adverse use" administrative process. Road status issues begin with the counties & county commissions.

6. "Public roads and highways of this state" in subsection (b), seeks to omit from the "public" aspect of this definition, (i) roads & trails that do not satisfy the previous criteria. This is getting into questionable territory, stating that a contested road or trail is private, unless proven otherwise. Subsection (ii) rolls into that mindset roads "deemed" abandoned or vacated. Prescriptive easements, County Resolutions, County Petitions are 3 of the processes for contested public access that begin with the county administrative process. Road maintenance, like fuel tax funding maintenance, is part of a prescriptive easement process.  MACo County Road Law PDF -http://www.mtcounties.org/wp-content/uploads/resources/transportation/2018-road-law.pdf

So here is the recent amendment (not available online yet, I had to listen to audio of the executive action to get it). Pg. 4 lines 2 & 3 were amended to read "dedicated to public use as determined by an authorized governmental entity and accepted by a governing body."

Removing "with written approval of the landowner or landowners" changes nothing - here's why. 

Let's back up to the hearing I attended at the Capitol on Monday for a moment for context. Rep. Alan Redfield explained his bill as "coming about from an issue" with Sweet Grass Co.Commissioners about what roads are public. Speaking as proponents were 2 Crazy Mountains Sweet Grass Co. landowners, involved with the access disputes, Lorents Grosfield & Chuck Rein. Grosfield stated no public monies had been spent on his road ever.

As I pointed out in the Hearing, this is not correct, I have numerous documents proving otherwise, including Historical Society records (just across the street from the Capitol) of a public school on that road.

Back to the amendment - MCA 7-1-4121 definition " 'Governing body' means the commission or town meeting legislative body established in the alternative form of local government."  

Regardless of how many of the Sweet Grass County governmental positions are currently filled by or have been filled by the Crazy Mountains landowners or those sympathetic with them, the fact is, the criteria for Fuel Tax Allocations is directed by the Federal government Highway-Aid Program.  

I spent 2 days on the phone with various Federal Highway officials, pouring through the various online documents to pull the details, after the 2nd guy said I would have to file a written request and it may take awhile. Each person directed me to another component, which ultimately begins with the parent Federal-Aid Highway Program.

Montana Department of Transportation Process Handbook, PDF pg. 8

PDF pg. 6

Here is the FAST Act PDF. Pages cited are the PDF page numbers. The federal definition is the same which is posted on MDT's fuel tax allocation pages, which is why the requirement of "open to public travel" is in quotes.

Pg 27 ‘‘(1) DEFINITIONS.—In this subsection, the following definitions
apply:
‘‘(A) OPEN TO PUBLIC TRAVEL.—The term ‘open to public
travel’ means, with respect to a road, that, except during
scheduled periods, extreme weather conditions, or emergencies,
the road—
‘‘(i) is maintained;
‘‘(ii) is open to the general public; and
‘‘(iii) can accommodate travel by a standard passenger
vehicle, without restrictive gates or prohibitive
signs or regulations, other than for general traffic control
or restrictions based on size, weight, or class of
registration.
‘‘(B) STANDARD PASSENGER VEHICLE.—The term
‘standard passenger vehicle’ means a vehicle with 6 inches
of clearance from the lowest point of the frame, body,
suspension, or differential to the ground.’’.

When you read through passages, highway includes roads - (11)The term “highway” includes— (A)a road, street, and parkway; (B)a right-of-way, bridge, railroad-highway crossing, tunnel, drainage structure including public roads on dams, sign, guardrail, and protective structure, in connection with a highway; and (C)a portion of any interstate or international bridge or tunnel and the approaches thereto, the cost of which is assumed by a State transportation department, including such facilities as may be required by the United States Customs and Immigration Services in connection with the operation of an international bridge or tunnel.  

From the 23 US Code 133
(4) Access to funds.—
(A)In general.— A State or metropolitan planning organization required to obligate funds in accordance with paragraph (2) shall develop a competitive process to allow eligible entities to submit projects for funding that achieve the objectives of this subsection. A metropolitan planning organization for an area described in subsection (d)(1)(A)(i) shall select projects under such process in consultation with the relevant State.
(B)Eligible entity defined.—In this paragraph, the term “eligible entity” means— (i) a local government;
(ii) a regional transportation authority;
(iii) a transit agency;
(iv) a natural resource or public land agency;
(v) a school district, local education agency, or school;
(vi) a tribal government;
(vii) a nonprofit entity responsible for the administration of local transportation safety programs; and
(viii) any other local or regional governmental entity with responsibility for or oversight of transportation or recreational trails (other than a metropolitan planning organization or a State agency) that the State determines to be eligible, consistent with the goals of this subsection.

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The fact is, currently, regardless of any legally private or contested road/trail status - appears on a county fuel tax map as receiving fuel tax allocations, public funding, it is "open to public travel"!

Another concern I have (investigating the federal STBG program requirements), since fuel tax allocations include federal funds, fed programs may have requirements involving the public. Yet there is no fiscal note attached to this bill addressing this? If there are public access or public benefit requirements and they are not complied with, it may preclude our receiving those federal dollars. I have been digging through the US code, but being Sunday, I cannot reach the Fed offices to ask.

Some additional MDT fuel tax information and MCA

MCA 15-70-101 4&9. (4) All funds allocated by this section to counties, cities, towns, and consolidated city-county governments must be used for the construction, reconstruction, maintenance, and repair of rural roads or city or town streets and alleys or for the share that the city, town, county, or consolidated city-county government might otherwise expend for proportionate matching of federal funds allocated for the construction of roads or streets that are part of the primary or secondary highway system or urban extensions to those systems. The governing body of a town or third-class city, as defined in 7-1-4111, may each year expend no more than 25% of the funds allocated to that town or third-class city for the purchase of capital equipment and supplies to be used for the maintenance and repair of town or third-class city streets and alleys. The governing body of a town or third-class city may place all or a part of the 25% in a restricted asset account within the gas tax apportionment fund that is carried forward until there is a need for the expenditure.
(9) Funds authorized by this section must be used for construction and maintenance programs.

Montana Dept. of Transportation

City/County Motor Fuel Tax Allocations

Program Purpose
The purpose of City/County Motor Tax Fuel Allocations is to maintain a complete and current record of all local, state and federal highway system mileage within the state of Montana. The inventory is used in part for equitable allocations of state motor fuel tax funds to cities and counties for the maintenance and construction of roads across MDT’s five financial districts.