In October, the Flathead County commissioners approved an application to the Montana Department of Natural Resources and Conservation (DNRC) to purchase a right-of-way easement along roughly one mile of the North Fork Road.
The standard 60-foot easement covers 7.8 acres and will cost the county approximately $35,000.
The need for the easement was discovered when Dave Prunty, the county’s public works director, was working with federal partners to rehabilitate the upper stretches of the North Fork Road and was told that the Federal Highway Administration would not do work along that section of road without legal access.
Prunty told the commissioners that when the U.S. Forest Service built the road in the 1940s, no easement from the state was obtained for that particular section, but when the county took over the road in the 70s, the impression was that an easement stretched the entire 44 miles of gravel road to the Canadian border.
“From DNRC staff we didn’t hear any thoughts that this could be of concern, since it’s been owned by the county for so long,” Commissioner Phil Mitchell said.
Mitchell and Prunty both expressed annoyance with DNRC’s unwillingness to grandfather in the easement, or offer it for less than market value.
But the latter option was out of DNRC’s hands due to a more than two-decade-old lawsuit.
Prior to 2000, fees for easements across trust lands were sold to municipalities for a fraction of market value. But in 1997, MonTRUST, a watchdog group that follows management of state assets held in trust for public education, sued DNRC over several uses of state trust land, including lower easement fees.
In 1999, the Montana Supreme Court upheld a district court ruling in favor of MonTRUST to overturn the law allowing lower fees, saying the law failed to uphold the government’s constitutional mandate to get the most money possible from use of trust lands.
In a 2008 interview with the Beacon, then DNRC Director Mary Sexton said the decision was a clear mandate.
“We had to determine how we’d be compensated,” Sexton said.
During the 2001 session, the state Legislature established a process whereby counties had until 2006 to apply for an easement under a historic right-of-way provision, which streamlined the process by only requiring easement applications establish that the right-of-way was in use prior to 1997 and include an aerial photograph.
In 2005, the Legislature extended the easement sunset to 2011, a deadline that has been further extended to 2021, as several counties are not on track to meet their requirements. Upon expiration of the provision next year, counties will be required to provide more documentation, including an environmental analysis, plat and topographical maps and a full survey of the property, a more costly process.
“Some counties on the left side of the state haven’t made an effort to deal with the situation,” DNRC Right-of-Way Specialist Lisa Axline said. “That’s the impression we’ve gotten with Flathead County, that they aren’t inclined to move forward on this.”
In addition to problems arising with federal agencies, not obtaining easements can be problematic for private property owners. Anyone living on a road that crosses trust land before their property technically does not have legal access, which “makes private property difficult to access and sell, and many claims made against title insurance companies deal with legal access,” according to the Legislature.
“[Purchasing the easements is] an assurance to the public that rely on the roads that it’s legally accessible,” Axline said.
Flathead County purchased easements from the state in 2005, 2007, 2015 and 2019, according to DNRC records.
In an undated inventory provided by the county, 20 miles of roads within the county do not have legal easements.
“We have something like 836 miles of roads in the county,” Prunty said. “We don’t have a plethora of unpaid easements … but there are certainly more out there.”
But the county’s estimate is about 80 miles less than the one provided to the Beacon by DNRC.
In 2015, a legislative subcommittee was tasked with studying the issue, and Axline presented Flathead County as an example. Cross-referencing the list of county roads with a dashboard of the 133,242 acres of trust land in the county, she established that for more than 100 miles of roads, no easements existed or the records could not be verified.
The 100 miles of easement-less roads are stretched across at least 89 segments of road, including Jewel Basin Road, Pleasant Valley Road, KM Ranch Road, Rogers Lake Road, nine Happy Valley roads and several longer stretches north of Highway 93.
“We’re not actually taking counties to task, but we have done outreach programs to try and educate the counties on the options they have,” Axline said. “It would be nice if they closed these operations, not just because of the cost savings to the counties, but the money goes to the beneficiaries of the trust, which in Montana means our K-12 schools and universities.”
Flathead County’s four easement purchases since 2001 under the historic right-of-way provision lags behind many counties in the state. As of 2016, in the same time period, Beaverhead County had obtained 60 easements, Yellowstone County obtained 35 and Valley County 85.
According to Commissioner Mitchell, the main roadblock is a “huge disagreement on the value of a road.”
The county estimates that it would cost around $5 million for approximately 142 acres of easement on the 20 miles of roads it has on record. DNRC would not speculate on potential costs, but an analysis by the agency submitted to the legislative subcommittee of 18 miles of road in Missoula County yielded an estimated value of $149,000 for 129 acres of easement. In Gallatin County, a similar analysis estimated a value of $174,000 for 251 acres along 45 miles of road.
The legislative subcommittee determined some solutions, including passing a bill to provide state-level funding for a road inventory and easement purchases for the counties, or passing a constitutional amendment exempting county easements, which would likely end up back in court.
So far, the Legislature has not moved on any of the potential solutions, but with the 2021 deadline looming, the issue is likely to come up during the next legislative session.
DNRC officials have said that some roads could be categorized as pre-existing rights of way, which wouldn’t require a grant from the Land Board, but counties would be required to take the initiative.
“We don’t have any plans to do anything about it,” Mitchell said.