Multiple roads totaling more than 30 miles in the Elkhorn Mountains that are currently managed by the U.S. Forest Service are likely county roads, Broadwater County Attorney Cory Swanson told the county commission this week.
In 2017 Forest Service staff members were researching an easement issue when they discovered evidence that a road long believed to be Forest Service was adopted as a county road in 1891 by then-Jefferson County. That information was brought to Swanson, who continued to research multiple roads in the Elkhorns as time allowed between criminal cases.
On Monday, Swanson presented findings to Broadwater County commissioners that five different road segments currently managed as either Forest Service or private roads were actually county roads, according to his legal opinion. The longest segment, described as the “Winston Loop,” travels from Winston up Weasel Creek into the northern part of the range and comes out at Indian Creek Road near Townsend.
“During this period of time in history roads were petitioned all the time,” as county roads, he told the commission. However, the quality of documentation varies and he spent considerable time looking for any evidence that Broadwater County, which formed in 1898, had ever legally abandoned the roads.
Along with Winston Loop, which includes multiple segments, Swanson believes the legal analysis supports county road status for the Crow Creek-Slim Sam Road near Radersberg and a 2-mile-long private road off of Slim Sam Road.
During homesteading in the early 1900s, Broadwater County completed an inventory of county roads. The inventory from 1923 is one of the best pieces of information either supporting or discounting road ownership, he told the commission.
The major confusing aspect of the research is how and why the Forest Service at some point assumed maintenance of the roads. Federal travel planning dating back to the 1960s identifies the roads as county but travel planning in 1980 and the most recent travel plan from 1995 does not list the roads as county, Swanson said.
“We all had the same question, and I’m sure the public will have a question: How if these were county roads and some of them very old, how did they fall out of the collective memory of being county roads?” he said.
In response to a question, Swanson noted that recent case law would not support an implied abandonment of the roads by the county despite the Forest Service’s maintenance for several decades.
Swanson recommended and the commission agreed to take the issue out to the public to decide next steps in the form of a yet to be scheduled public meeting or meetings. If the county were to assume responsibility for the roads, the looming question would be whether to continue or change seasonal closures currently instituted by the Forest Service.
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The Forest Service manages the Elkhorns along with Montana Fish, Wildlife & Parks and the Bureau of Land Management as a cooperative wildlife management unit – the only one of its kind in the nation. With the wildlife focus in mind, the Forest Service closes many access roads in the range Dec. 2 to protect wintering big game, although the area remains open to nonmotorized access.
“For us the Elkhorns are a wildlife management unit, it’s one of a kind in the nation, so then it becomes obvious what our priorities are there,” said Townsend District Ranger Mike Welker. “That’s managing for wildlife there and that’s why we’ve had the closure in place.”
Due to elevation, much of the upper country, particularly along Winston Loop, “self-closes” due to winter conditions, he said. The road is also rough and “self-limiting” when it comes to what type of wheeled vehicles are capable of traveling it.
Joe Cohenour is chair of the Elkhorn Working Group, a citizen advisory committee that makes recommendations to the state and federal agencies managing the Elkhorns. With the increasing popularity of antler hunting and the Elkhorns managed for trophy bull elk, motorized access, including on snowmobiles, raises a number of concerns.
“One of the things that makes it a great success is the Forest Service being able to manage that and one of their management tools is being able to close that down for elk wintering grounds,” he said.
Cohenour, a former officer with the Montana Highway Patrol, said he also has concerns about public safety with vehicles getting stuck in the backcountry.
Rep. Kerry White, R-Bozeman, said he has taken an interest in the issue with his group Citizens for Balanced Use. The group advocates for maintaining or expanding public access and in particular motorized access on public lands.
White said he was happy to see the research done and the county taking a closer look at the roads with public meetings and contacting affected landowners and lease holders. He noted that the initial step of determining whether or not the county would seek jurisdiction is separate at this point from any future decision about whether to keep or stop seasonal closures.
“Many times the decisions made by the Forest Service are not beneficial to the economy of local communities and counties, so no matter how you look at it, I think it’s a win-win situation for public land users to have the county exert their rightful jurisdiction,” he said.
“I think any kind of closure is better determined by a local government or county process," he said.
Given the number of roads on federal lands that have been gated, any “kind of public access we regain so to speak, I think is a good thing,” White said.