By Kay Braddock
For the first time since the Scenic View Road issue began two years ago, Prairie County commissioners, representatives of the Bureau of Land Management and landowner Michael Karrels sat down together to negotiate use of the 7-mile dirt road that leads to a popular overlook of the Terry Badlands north of Terry.
Although commissioners presented four bargaining points to discuss, negotiations stalled early on over issues concerning liability and whether the road was county or privately owned.
Both parties agreed to the meeting on Friday, held at the Prairie County Courthouse, in attempt to reach an out-of-court agreement for use of the road.
The issue began after Karrels placed a locked gate on the road, which runs through portions of BLM land and deeded property owned by Karrels. The road had been maintained by the county and was built using county funds. No easement exists for the road.
The four bargaining points presented by commissioners included: Seasonal use of the road by the public from Memorial Day to Oct. 15, sunrise to sunset; county road crew access to the road year-round for maintenance; county officials addressing harassment and theft of livestock issues presented by the landowner; Prairie County providing liability for the road.
Negotiations were formally adjourned after an hour, but commissioners opted to reconvene after members of the public asked to offer verbal input. Initially attendees had been told only comments presented in hard copy format would be allowed.
Over 30 people attended the meeting, with the majority of those expressing comments of support for Karrels and private property rights. Terry resident Joe Johnson, who opposed the gate on the road, was escorted from the meeting, due to comments made.
The conference began with a 12-minute introduction read by Prairie County Commissioner Todd Devlin detailing the county’s dilemma regarding the road and it’s interest in finding a resolution outside of court.
“The county, by no means, expects to have their entire wish list fulfilled,” Devlin began. “Nor do we even have a wish list.”
Devlin noted Prairie County’s distinctive condition as being one that includes 430,000 acres of federal land. When Montana state land is added to the mix, public lands account for almost half of the county.
Pointing to several reasons why Scenic View Road could be considered a county road, Devlin noted state statute 7-14-2615 dictates the county cannot abandon the road, which leads to a large tract of public land, without providing another access.
“This is not a simple case,” Devlin said. “What could be considered a victory for Mr. Karrels, if it becomes private, may be a defeat for the rest of our constituents.”
He noted that not only could this be a road that would bolster support for public access groups as they lobby for legislation in Helena, restriction to federal property, caused by closing the road, would likely endanger the multiple use of federal land that many constituents rely on.
The road could full under the RS 2477 road classification, Devlin said. RS 2477 roads were established through an 1866 act of the U.S. Congress to help encourage settlement of the West.
“We do know that Scenic View road was rural addressed and went through the public comment period and public hearings put on by the Prairie County Planning Board,” Devlin said. “As a commissioner, who was present at those hearings, I do know that it was the intent of the Prairie County Planning Board to name what they defined as county roads.”
Attorney Lance Tonn, representing Karrels, expressed concern about accidents occurring on the road. He presented a scenario involving a hypothetical accident taking place near the washout that neighbors the road, in which 3 teenagers are left paralyzed and requiring 24-hour care. Would the county’s insurance protect Karrels from lawsuits involving such instances as those, Tonn asked.
“It would have liability just like any of the other county roads,” Devlin responded. Devlin acknowledged he didn’t know the specifics of the insurance coverage provided.
“Don’t you think that would be an issue that you would have considered in the last two-and-half years?” Tonn asked, noting the roads current condition presents a “tremendous hazard” to the public.
“As the road sits today, it’s a higher liability for Mike because he’s giving permission to go up there,” Devlin responded.
Prairie County Attorney Becky Convery questioned whether this was the appropriate meeting to discuss the specifics of the county’s liability coverage.
“We did not come here prepared today to lay out every detail,” Convery said. “We came here prepared today to say, this is what we’re looking for and to listen to Mike as far as what his needs are, in order to make this happen.”
County or privately owned road
Tonn pointed to an agreement made between a previous landowner and the BLM, that he said allowed Karrels to revoke public use of the road with a 30-day notice to the BLM.
BLM Field Manager Debbie Johnson acknowledged that Karrels had the right to revoke the agreement and had done so.
Attorney Wally Congdon, who has been hired by the county to assist on the issue, questioned whether that agreement, referred to as the “Nefsey agreement” applied to the road. He also questioned whether the agreement was binding to any successors of the land of either party.
Johnson said the BLM was willing to work with the county on providing access to the Terry Badlands through an alternate route, like the existing Calypso Trail.
“And yes it is a beautiful view,” Johnson said of the Scenic View overlook. “But it’s a very contentious issue. I’d hate to see folks have to go to litigation, spend the money, spend the time and to have the hard feelings that I even pick up on between individuals.”
County officials questioned whether Calypso Trail would even be a viable option as the road leading to it runs through private property, in which the county doesn’t hold easements on.
“I’m not sure that’s acceptable,” Convery said in response to Johnson’s offer, noting waiting a year or more to find out if the county can legally access Calypso Trail while the Scenic View Road deteriorates further may not be the option the county wants to take.
Convery pointed to the dilemma county commissioners face due to the road’s closure, noting the commissioners’ constituents include landowners and non-landowners.
“They also have constituents who want to access that point,” Convery said. “My question to you Mike, … Are you going to maintain the road so that people can continue to access it?”
“My offer has never changed one whit,” Karrels responded. “I said, as long as that road is passable, any responsible member of the community is welcome to go up. And I don’t know how many times I have to say that, at the risk of being redundant, I’m going to say it one more time.”
Published Nov. 4, 2009