Although it’s short, a new bypass road has a long history and goes a long way toward reopening part of the Custer Gallatin National Forest south of Big Timber.
On Wednesday morning, the new 1.6-mile section of the West Deer Creek Road was opened to the public, linking the Boulder River to the Beartooth Mountains and ending a 25-year struggle over access on the nearby Cherry Creek Road.
People can now reach more than 16,000 acres of the Custer Gallatin National Forest from State Highway 298, the Main Boulder Road, thanks to an agreement approved last year between the U.S. Forest Service and property owners George Matelich and Michael Goldberg.
Prior to the reopening of the road, people could reach that section of National Forest only by hiking or riding many miles from the east side of the Beartooth Mountains.
Cherry Creek Road traversed the piece of property that Matelich and Goldberg purchased in 2000. The road passed close to their residence, so they responded like some other newcomers to the state: they put a gate across the road to keep people out.
People questioned their right to do that based upon the status of the road but it wasn’t the first time the road had been gated.
The problem is prescriptive easements - roads across private property that are considered public because people used them but no legal papers were ever filed to document their status.
Landowners of the past sometimes allowed neighbors to use private roads and paths to reach rivers and hunting spots. But trouble starts for land agencies or counties when the old owners sell their property and new owners question the rights of the public to access the roads or trails across their land.
In the past few decades, more out-of-state landowners have bought ranches and barred the public from using such roads. A few have done so even when the roads are documented as public.
As a result, some counties and land agencies have begun documenting such easements to avoid future challenges.
Once a road is blocked, as many have been, it’s up to counties or groups like the Public Land/Water Association to challenge the gates and prove the public use in court. Even when judges order the roads opened, some landowners stall with repeated appeals.
In 1989, PLWA filed a lawsuit to open Cherry Creek Road the first time it was gated by the previous landowners. But the group didn’t have deep enough pockets to sustain a long court battle, so it accepted a settlement where the landowners agreed to keep the road open for 10 years.
“Bernard Lea and I had recently taken over the leadership of (PLWA) and the organization was broke at the time, and we thought the Forest Service could come up with an alternative access within ten years,” said PLWA President John Gibson.
But in 2000, the gate closed again.
“The Gallatin National Forest Supervisor then considered condemnation to gain access to the land, but Senator Jon Tester advised against condemnation and offered to try to work out a better alternative,” Gibson said
In 2013, Yellowstone District Ranger Alex Sienkiewicz announced that the Forest Service had finally reached a settlement with Matelich and Goldberg to provide permanent access through their land. The landowners agreed to build the rerouted section of the West Deer Creek Road at their own expense. The old section of Cherry Creek Road will be allowed to return to a natural state.
In January 2014, the plan went out to public comment and received no opposition.
Seinkeiwicz can remove Cherry Creek Road from his list of trouble spots although the list remains long.
“This opening recognizes years of ongoing work. I would like to thank those that have worked hard to resolve issues and facilitate access to public lands for all American citizens to enjoy,” Sienkiewicz said. “Road and trail crews have worked throughout the spring reestablishing routes, as many of the roads and trails have undergone a decade or more without maintenance.”