By Kay Braddock
Although some may relish in the old saying, “silence is golden,” especially when applied to the brewing ownership controversy over Scenic View Road, others may also refer to another adage – “talk is cheap.” Talk is something both sides seem to have been doing a lot of lately, according to county attorney Scott Pederson.
Behind-the-scenes work on the issue, which appeared to have gone dormant since the public July 8 meeting between county commissioners and varying government representatives, has been taking place between both sides with a recent proposed agreement in the works, Pederson said.
The road issue began this past spring when landowner Michael Karrels installed an unlocked gate over a cattle guard and posted a “Please respect our private property,” sign onto the gate on Scenic View Road, which leads through portions of his deeded land and land owned and maintained by the Bureau of Land Management. The issue then culminated to a public meeting drawing in over 60 county residents with opinions on both sides of the issue being expressed.
Finding a compatible compromise led both sides to meet privately, shortly after the July 8 meeting, Pederson said. Commissioner Bill Leach, Karrels, attorney Lance Tonn, who represents Karrels and Pederson met at the office of attorney Dale Hubber, where an initial informal agreement was proposed.
In the proposed agreement, which is unclear if either Karrels or Tonn has yet signed, the legal opinion of Missoula attorney and Montana road law expert Peter Dayton will be pursued. Splitting the costs, each side will submit legal briefs arguing their case as well as the stipulated facts of the situation surrounding access to Scenic View Road.
Stipulated facts will include how long the road has existed, who has maintained the road and where the road leads.
“That’s just to give him (Dayton) a full understanding of what’s going on here,” Pederson said.
Dayton’s opinion cannot be used in future legal proceedings, according to an agreement to be signed by both sides, but will merely be used as a tool to anticipate what a court ruling would likely find.
“I think they’re going to put a lot of stock into what he says,” Pederson said of both the commissioners and attorney Tonn.
Dayton charges $180 per hour.
“It won’t take him very long to get it done,” Pederson said.
Another stipulated fact will include the Nefsy agreement, which contains a written contract drawn up in 1969 between previous landowner William Nefsy and the BLM. The contract gave the public the right to access Nefsy’s land, which is now owned by Karrels. The 1969 agreement states that it could be revoked by either the landowner or the BLM through a 30-day written notice – something Karrels opted to act out on March 31 of this year.
But both sides do not agree on whether the Nefsy agreement includes the road or merely the land owned by Nefsy. This will be a legal opinion Dayton will likely weigh in on, according to Pederson.
Scenic View Road, built up by community organizations, county crews and the Bureau of Land Management in 1965, has been commonly used by the public to access BLM’s Scenic View overlook. The county has never acquired an easement for the road – a common circumstance that has many eastern Montana county commissioners facing similar dilemmas.
Scenic View Road has been maintained by county crews at least once a year and up to three times a year since 1984, according to road department records. Scenic View overlook, advertised in various venues including Custer Country, is a popular site of tourists and locals alike and is owned by the BLM as part of BLM’s Wilderness Study Area.
Published September 10, 2008