Monday, June 10, 2019

Press Release - Crazy Mountains Lawsuit Filed


For immediate release 
June 10, 2019 

Contacts: 
Kathryn QannaYahu, Enhancing Montana’s Wildlife and Habitat, kathryn@emwh.org, 406-579-7748
Matthew Bishop, attorney, Western Environmental Law Center, bishop@westernlaw.org, 406-324-8011
Katie McKalip, Backcountry Hunters & Anglers, McKalip@backcountryhunters.org, 406-240-9262
Michael Kauffman, attorney, michael@drakemt.com, 406-495-8080 

Public Land Advocates: Forest Service Must Reopen Public Trails in Montana’s Crazy Mountains 

Coalition of sportsmen-conservationists contends the Forest Service is abdicating its duty to uphold and
defend public access to historical trails


HELENA, Mont. – A coalition of conservation-based groups filed a lawsuit today against the U.S. Forest Service to maintain traditional public access opportunities in the Crazy Mountains of Montana. The coalition includes Friends of the Crazy Mountains, Backcountry Hunters & Anglers, Enhancing Montana’s Wildlife and Habitat, and Skyline Sportsmen.They are represented by the Western Environmental Law Center and the Drake Law Firm. 

The groups’ challenge hinges on the Forest Service’s continued lack of progress and unresponsiveness in maintaining the public’s right to access public lands and waters in the Crazy Mountains. In February, the coalition submitted a letter to the Forest Service summarizing concerns over public access in the Crazies and notifying the agency of its intent to sue should access issues fail to be resolved. 

"The upper levels of the Forest Service chose not to respond or address our local public access concerns and repeated complaints of obstruction,” said Brad Wilson of Friends of the Crazy Mountains, a retired Park County assistant road supervisor and deputy sheriff. “Due to the Forest Service’s negligence, we had no choice but to appeal to the court.” 

The coalition contends that the public, has longstanding and permanent public access to Montana’s Crazy Mountains. The lawsuit charges that until recently the Forest Service supported and maintained the public’s access to the trails, but certain Forest Service leaders now are abdicating their duty to protect and preserve public access there. The suit specifies four trails, two on the west side and two on the east side of the mountain range, that are mapped as public trails, are well known and have been traditionally used by the public but where certain landowners now are illegally and impermissibly attempting to deny public access (Porcupine Lowline #267, Elk Creek #195, East Trunk #115/136 and Sweet Grass #122). 

Hearing about attempts to obstruct public access obstruction in the Crazy Mountains, I began over 1,100 hours of documentation, FOIA requests to the Forest Service, and historical research that verified these trails are public,” said Kathryn QannaYahu of EMWH. “Especially compelling were the county railroad grant deeds of private land, containing the words 'easement in the public.' What I found angered me, because the public has easement interests on these four trails, which the Service isn't protecting on our behalf. On the contrary, they're allowing certain landowners to attempt to obstruct public access and undermine my and the public's ability to access historic trials in the Crazy Mountains.” 

In a response to Sen. Steve Daines dated Oct. 2, 2015, Forest Supervisor Mary Erickson wrote, “The Forest Service maintains that it holds unperfected prescriptive rights on this trail system, as well as up Sweet Grass Creek to the north based on a history of maintenance with public funds and historic and continued public and administrative use.” 

We have been transparent in our goal of restoring public access to the Crazy Mountains,” said Tony Schoonen of the Skyline Sportsmen and a member of the Montana Outdoor Hall of Fame. “Our coalition has committed substantial work to researching the situation in the Crazies, and we plan to continue pursuing this goal in the public eye. While it’s hardly surprising that some politicians and out-of-state bureaucrats are seeking to steal access to our land, we refuse to let it go without a fight.” 

The Forest Service is bound to do its job and maintain access to these trails,” said Matthew Bishop of the Western Environmental Law Center. “It’s just that simple. This means managing and maintaining the trails, replacing and reinstalling national forest trail markers and signs, and ensuring public access on our public trails in the Crazy Mountains.” 

In the words of the Forest Service’s own attorneys regarding one of these trails: “Indeed, it would be irresponsible of the Forest Service to simply abandon these easement rights or fail to reflect their existence in the travel plan simply to avoid the souring of relationships between landowners and recreational groups.” 

These trails are public and were managed that way for many years. We stand with those hardworking Forest Service employees committed to responsibly managing our public lands and waters,” concluded John Sullivan, chair of the Montana chapter of Backcountry Hunters & Anglers. “Forest Service leadership has stated that these trails are public, yet somewhere along the line their tune changed. We have no intention of standing idly by while this faction engages in the very behavior it has deemed irresponsible. We will fight for the public’s right to access these public lands and waters, which are central to our Montana way of life.”

Photos and map of the trails are available here.  
________________________________________________________________



I want to thank those individuals who have subscribed and contributed, which has assisted in my research on the Crazy Mountains over the years, more recently Montana Sportsmen Alliance, Montana Chapter of Backcountry Hunters & Anglers, Dan Mahn, Nancy Ostlie, Greg Munther, Gayle Joslin, Donald, Stein, Paul Olson, Hallie Rugheimer, Mike Korn, Brad Wilson, John Daggett, Dwayne Garner and James McGehee.

I still have some research to finish, if you would like to contribute towards these efforts, it would be greatly appreciated.

Click to be a Contributor or Subscriber to
Enhancing Montana's Wildlife & Habitat



Thank you,
Kathryn QannaYahu
406-579-7748
www.EMWH.org
Helena, MT




Friday, May 24, 2019

Watchdogging our Montana Public Access


Crazy Mountains
Yesterday, I was listening while two friends shared with me their stories of a Mountain Goat hunt in the Crazy Mountains. One of the hunters spent nearly a months worth of days, becoming intimately familiar with the Crazies' Forest Service trails.

I stopped him after a moment, pulled out my Crazy Mountains FS map that I have mounted to a large tri-fold presentation board for all my research, then asked him to resume his story. I wanted to visually see his trips, where he had gone. On the west side he went from from the Porcupine Trailhead on #267 to Elk Creek #195 to the saddle. He also went Cottonwood #271 to Trespass Creek #268, over the saddle, then east to Trail #123 on to Campfire Lake, then continuing on to Trail #122. South, he went north on Rock Creek #270. From the east he drove to the Sweet Grass Trailhead, taking #122 west to #273 to Sunlight Lake, southwest to #123 to Moose Lake and Campfire Lake – all the while following the public FS trails through checkerboarded private property, without asking for permission or signing in. At one point, the hunters went back to a trail and the landowner had a locked gate obstructing their access.

Seeing all the different trails represented in such a concentrated time period really drove home the importance of public access into and through the Crazy Mountains. Since 2014, when I began researching the Crazies, I have had the pleasure of hearing a number of public access accounts while researching (over 1100 hours now); these personal public access stories help to flesh out the history and importance our public lands have in our lives.

If you have recreated in the Crazy Mountains, using our public Forest Service trails, without asking for permission or signing in, within the last 5 years, even if you were met with an access obstruction, I would love to hear about your personal experience.

You can reach me by email at kathryn@emwh.org or phone: 406-579-7748

Montana Legislation SB 341 Update
Some of y'all may have seen news articles or if you submitted a letter to the Governor's office as I did, you might have received a reply May 3rd (mine is below), acknowledging this bill had legal issues concerning a private landowner being able to use these funding agreements, the sign ins and monies paid to work towards reverse adverse use if any historic prescriptive easement public access currently exists, as I stated. Bullock's answer was to direct FWP to adopt rules to determine if any public access already exists. This was a cop out, Rules are not a safety net here and problematic for a number of reasons.

1. A law trumps a rule in legal court. Rules can also be changed by going through a petition process, as I stated before. This is why the Republicans involved refused to have that language included in the bill text.
2. IF the Republican/landowner/stockgrower/farm bureau groups don't object to FWP rules "limiting or repealing" this law or their property rights laws, or threatening to sue on that front, then we proceed to the next stage. And which of you is going to participate in the Rulemaking process to attempt to protect any pre-existing public access? You clearly cannot trust the same people that didn't protect you in the bill drafting or legislative process.
3. IF the rules are put in place to first require FWP to research these roads & trails, the cost burden of manpower hours and research now falls on us, our public dollars, not the landowner, to research any pre-existing access. With only 10% of available funds allowed for administration, this could blow through administration funds faster than they appropriated for. I can tell you how much work it takes to do this type of research (please note my 1100+ hours above). How many employees are they going to train and divert for this type of research? I am also aware of a professional hired to take inventory in the 1940's of contested trails and roads in a certain area. Whoever did the inventory, whether intentionally or shoddily, did not include deeds beneficial to public access, that I was easily able to find, so why didn't they???
4. IF a landowner's application turns up pre-existing access and is denied, is a landowner then going to threaten to sue under point no. 2, for a rule "limiting or repealing" his right to pursue reverse adverse use, since historical pre-existing public access was not an exclusionary criteria listed in the bill?
5. IF a case gets approved, that turns out to have pre-existing public access, who of you is going to going to sue FWP for not better researching or Governor Bullock for not vetoing this bs? He is not going to be in office much longer anyway.
6. And who in the public is going to watchdog this whole process for every application, for every year going forward, because this is now a law? The hunter/angler groups that lobbied for this supposed great bipartisan access bill, even lying to legislators or making vote deals, who knew this bill was messed up? One of those groups has now screwed y'all over on Bullwhacker public access being restored and this bill/law, with their backroom dealings, using your member or contribution dollars to do it.

I have contacted FWP legal to find out the Rulemaking schedule for this law, leaving a message.


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Enhancing Montana's Wildlife & Habitat



Thank you,
Kathryn QannaYahu
406-579-7748
www.EMWH.org
Helena, MT

Tuesday, April 16, 2019

Contact Governor Steve Bullock To Intervene, Vetoing SB 341 To Protect Public Access





We need a VETO!


While pursuing public access to our public lands is a beneficial pursuit, SB 341 - Establish Public Access Land Act, is a Trojan Horse bill that could use our public funds to privatize access in court.


Since SB 341 has been fast tracked, passed its 3rd reading, now on to the Governor, please join me in contacting Gov. Bullock's office, requesting he veto SB 341 – 406-444-3111 or governor@mt.gov.


I don't ask this lightly. I have spent almost a week on the phone (all day), between the Public, Representatives, FWP, retired attorneys and Governor Bullock's office.


In response to my inquiry, as to who in FWP assured a Representative they could fix this public access debacle with the rule-making process, the Rep. responded it was not FWP, but a lobbyist who made that statement.

I have spoken to 4 different people at FWP, over 3 days, including 2 at legal, to find out who advised that this public access debacle could be dealt with by rule-making authority. No one was familiar with any statement or position on SB 341, concerning a legislative discussion on rule-making potentially protecting our public access.  

I questioned the FWP attorney who returned my call yesterday, specifically asking, a number of times, if FWP had rule-making authority to require a landowner to first have an independent agent research if there was any pre-existing historical public access, such as historical prescriptive easements, RR grants with easements in the public or RS 2477 roads, before proceeding with a funding agreement? I was not given a direct "yes" answer to my very specific question, rather answers such as,  

"I believe we have broad rule-making authority, but whether we would or could or should is the question...The rule-making process is a public process, we can't control all of that." 

"I believe we could include in the negotiable terms, language such as, 'Payment is not indicative of access status.' " This one was mentioned 3x. I pointed out, that didn't protect the public, rather sounded like a CMY (Cover My Ass) statement, again asked my specific question. 

When I brought up the Montana Administrative Procedure Act (rule-making), MCA 2-4-107 law, which limits the scope of rule-making, he said he was not familiar with it. "Construction and effect. Nothing in this chapter shall be considered to limit or repeal requirements imposed by statute or otherwise recognized law. No subsequent legislation shall be considered to supersede or modify any provision of this chapter, whether by implication or otherwise, except to the extent that such legislation shall do so expressly."  

Rules have to apply to the law in existence. This bill would become a law, yet has no language excluding potential public access with which to make a rule. Also, there is already property law on the book, involving reverse adverse use, which landowners could object, would limit their right to pursue privatization.

Governor Bullock has authority to add an amendment, but as his office explained yesterday, an amendment would require it to go back to legislature for approval and there is no time; additionally, as stated by the Representative, the Republicans stated in development they would not be a party to any such language being inserted into the bill portion, so they would not approve a Gov. amendment.  

This only leaves VETO.

 


Here is how this could be a Trojan Horse bill.

While paying a landowner for public access to public lands, with public money, SB 341 has NO language to require a landowner to first research if there is any pre-existing historical prescriptive easement access or Railroad Grant Deeds with language, such as, "the land hereby conveyed, being subject, however, to an easement in the public for any public roads heretofore laid out and established, and now existing over and across any part of the premises." 

For years, I have investigated documentation necessary towards proving historical public prescriptive easements in court, as well as extensive deed research in County Clerk & Recorder's offices, across Montana - part of which is the foundation for our current Coalition's Notice of Intent to Sue in the Crazy Mountains.

One of the criteria in the Boone & Crockett and Modesty Creek cases, cited by the Montana Supreme Court, for reverse adverse use is, "The landowner 'established reverse adverse possession because the state and local government, as well as the public, cooperated and adhered to the' " policy of the landowner. 

By signing funding agreements with FWP, a state agency, making payments for access, the public sign ins, this not only provides the court with the documents to prove their case to privatize a road/trail, it also fulfills the evidence that "the state and local government, as well as the public, cooperated and adhered to..." the landowner's privatization, which was used in the Boone and Crockett “reverse adverse use” case, cited in Anaconda's Modesty Creek case, where the public lost access permanently. 

A current example of the public defending a road or trail that was a historical public prescriptive easement is the Wonder Ranch Case. "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." 

The fiscal note for SB 341 is approved for 2 biennium, $500,000 each year. Four years of payments, especially if a landowner has already blocked access for a year or more, would fulfill the 5 year statutory time for filing in court to privatize it permanently. 

Trying to address this concern of historical access research in the rule-making process, is no safety net for the public, as there is no guarantee the authority is there to insert language that could "limit" a current law, or that privatizing stakeholder interests participating in the public process, such as landowner groups, would even agree with such language; also those rules can be changed with little to no public awareness of a rule changing process. 

Bullock, then Attorney General for Montana, took on a public access case in 2012, the Tenderfoot Road case. The Zehntner's erected a gate, set up a “Road Closed” sign and put a "sign in box" for the public, all of which goes towards 5 years “reverse adverse use”, to make it private permanently. Thankfully, Bullock intervened and after he became Governor, the case was finalized in the MT Supreme Court, ensuring public access. 

So here is a question concerning why do we even need SB 341? Why would these landowners simply not sell & record an access easement, at the Clerk and Recorders office, rather than milking access fees for years? Could it be to acquire the evidence they need for a court to permanently privatize any pre-existing historical public access? 

Without a VETO, the public will be forced to watchdog, with their own time and money, every case submitted for funding agreements, researching possible access, which can take months, to fight back for access, potentially leading to lawsuits against FWP and the Governor for SB 341 passage, again costing the public more money on both sides of the issue. I do not believe this serves Montana, FWP, or the Public for this bill to be signed into law. 

Without language to protect pre-existing historical public access, this bill needs to be vetoed by the Governor. Please contact Governor Bullock, ask him to intervene and protect our historical public access by vetoing SB 341.

Kathryn QannaYahu, Founder of Enhancing Montana's Wildlife & Habitat, EMWH.org
_______________________________

 April 12, 2019



SB 341 - Establish public access land act
Senate Bill 341
 
SB 341 had it's 2nd reading before the House where it was voted on 93-7. Thankfully, the 7 no votes were some of the Reps we could get to on short notice. It is now before the House Appropriations Committee for the fiscal portion of it, expected to have it's 3rd House vote possibly tomorrow (tho it is not on the schedule, but hey, hinkey stuff has been going on this session), but more than likely Monday, so we might have a wee bit more time to reach the Reps. I have been calling legislators all late afternoon to help explain this issue. Shout out to Bozeman's Rep. Chris Pope who knows about prescriptive easements and reverse adverse use, and understood.

So please call your legislators and email your comments.
An example of access being there, despite a landowner's belief and efforts otherwise, is the Tenderfoot Road case, which then MT Attorney General Steve Bullock took on to fight back for the public's access in 2012. The Zehntner's gated, set up a “Road Closed” sign and put a "sign in box" for the public, all of which goes towards 5 years reverse adverse use, to make it private permanently.The case concluded after he became Governor.




This is why it would be critical to have any roads or trails researched before any type of funding agreement was begun, but SB 341 does not have that.
My public comment below. Representative email addresses below comment.
________________________________________
I would like to submit this comment, on the record, in opposition to SB 341 - Establish public access land act.
  • Could work towards reverse adverse use, blocking the public from historical prescriptive use permananetly
  • No language providing for historical prescriptive use or Railroad grant deeds with "easement in the public" language
  • Broad brush, ambiguous contracts that could limit public access
  • Why are they simply not purchasing & recording an access easement?
As a member of the public, I have been a landowner, continue to respect and advocate for private property rights, fight against trespass. But I also fight for public property and public access rights.
One of the components for historical prescriptive easements in Montana, when you go to court to perfect that easement, is that the public use was "open", meaning a person did NOT pay a fee to use it or have to sign in, or get landowners permission first.
"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."
This bill does not state that there will be ANY PROCESS TO FIRST DETERMINE IF THERE IS ALREADY HISTORICAL PUBLIC ACCESS:  by Railroad Grant deeds with "easement in the public", other public easements or unperfected historical prescriptive easements.
If no process makes that determination first, then any payments/funding agreements made to a landowner, especially by a governmental agency (MT Fish, Wildlife & Parks) with public monies, could be working towards the "REVERSE ADVERSE USE" process, whereby a landowner can show "funding agreements" & payment records to a court to get a ruling to privatize that access.
Most of the public is unaware of these 2 processes, but certain privatizing stakeholders generally are not, with certain landowners setting up sign ins and access fees, to work towards "reverse adverse use".
2 Recent Montana court cases as examples:
The Wonder Ranch Supreme Court case was ruled a Historical Prescriptive Easement - that previously unperfected historical prescriptive easement (use that was there before the landowners purchased it) is now court perfected, guaranteeing public access to our public FS lands.
The Modesty Creek case was court ruled as a Reverse Adverse Use. While the access had been unperfected historical prescriptive easement, one of the landowners had put a gate with a lock on it, cutting off access. There was no open, continuous use, no record of the public complaining with the county, etc., within the 5 year adverse time period. That was historical public access that was permanently lost.
Without an amendment to this bill, requiring research on the access to determine if there is any public stake, the public, our state FWP and public monies could actually be thwarting public access that may already exist, aiding privatization of access. Since I highly doubt that we can be guaranteed impartial, thorough research ( I conduct title/deed/access research, so I know how many, many hours it takes on one section of land), I would not support this bill.

My other concern is that these agreements are not regular easements being purchased (why aren't they just selling a recorded easement???), providing general public access to our public lands, they are unspecific conditional contracts, which means they could curtail the hours of the day (possibly limiting if you are setting up for hunting), or days of the year, etc.

This is so broadbrush, ambiguous, neither the legislators voting on this, nor the public that will be paying for it, has any idea what they are "leasing".

Again, why doesn't the landowner just sell, and record at the County Clerk's office, an easement, rather than this yearly milking of public funds with conditional contracts? Unless the milking and the 5 year reverse adverse use is the goal?
Please oppose Sb 341.



Click to be a Contributor or Subscriber to
Enhancing Montana's Wildlife & Habitat



Thank you,
Kathryn QannaYahu
406-579-7748
www.EMWH.org
Helena, MT




Thursday, February 28, 2019

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.


Kim.Abbott@mtleg.gov, Fred.Anderson@mtleg.gov, Jbachmeier4hd28@gmail.com, Jade.Bahr@mtleg.gov, nancyballance@aol.com, Danbartel2@gmail.com, becky4hd80@blackfoot.net, David.Bedey@mtleg.gov, Seth.Berglee@mtleg.gov, Barbara.Bessette@mtleg.gov, Laurie.Bishop@mtleg.gov, Bob.Brown@mtleg.gov, brownformontana@gmail.com, Tom.Burnett@mtleg.gov, Ed.Buttrey@mtleg.gov, marycaferro@gmail.com, Willis.Curdy@mtleg.gov, Geraldine.Custer@mtleg.gov, Greg.DeVries@mtleg.gov, alandoane@midrivers.com, Julie.Dooling@mtleg.gov, kimberly.dudik@gmail.com, DAVID.DUNN@MTLEG.GOV, MaryAnn.Dunwell@mtleg.gov, Neil.Duram@mtleg.gov, robformontana@gmail.com, Dave.Fern@mtleg.gov, Ross.Fitzgerald@mtleg.gov, flemingLor5@gmail.com, John.Fuller@mtleg.gov, Moffie.Funk@mtleg.gov, wyliegaltformt@gmail.com, chairmangarcia@aol.com, frankgarnerhd7@gmail.com, Carl.Glimm@mtleg.gov, Sharon.Greef@mtleg.gov, Bruce.Grubbs@mtleg.gov, Steve.Gunderson@mtleg.gov, Jim.Hamilton@mtleg.gov, Bradley.Hamlett@mtleg.gov, Derek.Harvey@mtleg.gov, Denise.Hayman@mtleg.gov, greg.hertz@mtleg.gov, Ken.Holmlund@mtleg.gov, Mike.Hopkins@mtleg.gov, Llew.Jones@mtleg.gov, Jessica.Karjala@mtleg.gov, Joshua.Kassmier@mtleg.gov, Kathy.Kelker@mtleg.gov, Connie.Keogh@mtleg.gov, Emma.KC@mtleg.gov, Casey.Knudsen@mtleg.gov, Rhonda.Knudsen@mtleg.gov, Joel.Krautter@mtleg.gov, Jasmine.Krotkov@mtleg.gov, Dennis.Lenz@mtleg.gov, Denley.Loge@mtleg.gov, Ryan.Lynch@mtleg.gov, Forrest.Mandeville@mtleg.gov, Theresa.Manzella@mtleg.gov, Marilyn.Marler@mtleg.gov, Wendy.McKamey@mtleg.gov, Bill.Mercer@mtleg.gov, Terry.Moore@mtleg.gov, Eric.Moore@mtleg.gov, Shane.Morigeau@mtleg.gov, Dale.Mortensen@mtleg.gov, marknolandhd10@gmail.com, Andrea.Olsen@mtleg.gov, Rae.Peppers@mtleg.gov, Zac.Perry@mtleg.gov, Gordon.Pierson@mtleg.gov, Chris.Pope@mtleg.gov, joeread2019mt@gmail.com, Alan.Redfield@mtleg.gov, Matt.Regier@mtleg.gov, Vince.Ricci@mtleg.gov, Tyson.rw@mtleg.gov, Marilyn.Ryan@mtleg.gov, Walt.Sales@mtleg.gov, Casey.Schreiner@mtleg.gov, Ray.Shaw@mtleg.gov, Lola.Sheldon-Galloway@mtleg.gov, Derek.Skees@mtleg.gov, repbsmith@gmail.com, Sharon.StewartPeregoy@mtleg.gov, Katie.Sullivan@mtleg.gov, Mark.Sweeney@mtleg.gov, Brad.Tschida@mtleg.gov, Barry.Usher@mtleg.gov,
VanceSD34@gmail.com, Sue.Vinton@mtleg.gov, Marvin.Weatherwax@mtleg.gov, Webb4house@gmail.com, Tom.Welch@mtleg.gov, winwithwhite@gmail.com, rep32jwb@gmail.com, Tom.Winter@mtleg.gov, Tom.Woods@mtleg.gov, Daniel.Zolnikov@mtleg.gov

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.