On this early spring day, Dave Littlefield and Jim Baalman are bumping their way along the single track, dodging mud puddles and large ruts. Their travels take them past a few scattered homes, some empty corrals and near a herd of surprised deer.
The two friends have been traveling this road for more than 20 years to hunt deer and to access thousands of acres of federal and state lands.
“This is as far as the public can go right now,” Littlefield said. “We’re hoping sometime soon that won’t be the case.”
This pair’s future travel plans on the winding Carten Creek Road are, for now, tied up in court.
Late last year, landowners Ed Abel and Dean Dutton sued Littlefield, Baalman, Powell County, three other landowners and up to 100 “John Does” in an effort to privatize the dirt road that leaves Interstate 90 near the Gold Creek interchange and traverses the Garnett Mountain Range to finally intersect with Highway 14, west of the Nevada Creek dam.
Like many of Montana’s access disputes, this clash is creating its share of animosity.
In 2003, Abel - a wealthy Pennsylvania construction business owner - installed locked gates across Carten Creek Road. Last year, Baalman and Littlefield cut the locks on those gates two different times.
“They had to do it to preserve the public’s right under the law,” said the men’s counsel, former District Judge Ted Mizner. “If those gates remained locked for five years, the public would have lost its prescriptive easement.”
Abel and Dutton want the court to rule the road as private. Their suit also asks for $50,000 apiece from Littlefield and Baalman for cutting the locks, wrecking a sign and trespassing.
“My wife didn’t really smile when she saw that,” Baalman said. “Abel’s motive is simple enough. He wants to shut the road off and keep people from using some of these public lands. I don’t think it’s right.”
“I’ve been driving up that road for many, many years and never heard a peep from anyone,” he said. “And then all of a sudden, boom, it was closed.”
The three landowners named in the suit, Dwight Gappert, Ben Davis and Harold Satchell, had used Carten Creek Road as their primary access, too.
“We tried to reason with Abel after he closed off the road,” Davis said. “He just emphatically said it was his road. He’d give us a key, but he wouldn’t allow us to record a prescriptive easement. … Without access, our property basically becomes worthless.”
A prescriptive easement would be recorded on the landowners’ deeds. Without it, they continue to depend on the goodwill of the current landowner for access into their own property.
Gappert is anxious for his day in court. He’s discovered the road has a long history. So far, he’s found the road recorded on an 1871 survey map. A 1919 Department of the Interior appraisal of his property is signed by President Woodrow Wilson. A local fire protection group used public funds to upgrade a portion of the road in 1961.
“I can’t wait to get into court,” he said. “Meanwhile, our legal costs just keep adding up. They’re telling us landowners it will probably cost us about $25,000 to defend our rights to get into the property. That’s a lot of money for us.
“Abel owns a Lear Jet. He flew in with it to do his deposition,” Gappert said. “He is well-to-do.”
Abel did not return phone calls or e-mail messages seeking comment for this story.
At one time, Carten Creek Road was used as a shortcut between Gold Creek and Helmville. The first 2.25 miles off I-90 are maintained by Powell County. The road then passes through a swath of land owned by the Dutton family and finally onto Abel’s property.
The other private landowners’ property is near the upper end of Abel’s holdings, meaning they have to go through Abel’s locked gates to access their property.
The portion of the road that traverses Dutton’s property has been in his family for more than 60 years. Up until recently, the Duttons haven’t been too particular about who traveled up and down Carten Creek Road.
“We never stopped anyone from using the road,” Dutton said. “We figured it was the neighborly thing to do. There wasn’t that much traffic and it just wasn’t a big issue.”
That all changed when people began demanding access, signing petitions and urging the county commission to designate Carten Creek a public road, Dutton said.
“They held a meeting with the commissioners and didn’t even tell me about it,” he said. “You think they would have asked my opinion. A bunch of business people in Deer Lodge have taken the other side. I’ve been pushed about as far as I want to be pushed.”
“It just made me mad,” he said.
Dutton said he’s mad enough now that he’s begun posting no trespassing signs on his 13,000 acres of deeded land.
“They’ve cut off their nose to spite their face,” Dutton said. “I’m not going to allow any more hunting. I’m just going to shut the door. ... They just pushed too hard. I’ve had enough.”
Baalman and Littlefield feel like they’ve been pushed into a corner as well.
“There have been so many roads shut down over the years that if we don’t start standing up and trying to make a difference, our children and our grandchildren are going to suffer,” Baalman said. “It’s about seeing the rights that we all have being stripped away.”
“I can see a point in the future when most of this access will be gone and Montana will turn into a playground for the rich,” Littlefield added.
Both men are worried about the litigation costs. They’ve started a legal fund at the Pioneer Federal Savings and Loan in Deer Lodge.
“We knew that if we didn’t cut those locks off, the public was going to lose that access,” Baalman said. “We do it and then we get sued. It would be nice for the public to help if at all possible. We’re not cranks. We don’t have criminal records. We’re not even trying to harm him (Abel). We don’t even know him.”
Disputes over access are playing themselves out all over Montana.
Last week, James Kennedy, a multimillionaire media mogul from Atlanta, sued Madison County and a sportsmen’s group claiming the public has no right to get to streams from county bridges. That salvo is just the latest in a legal battle that’s been going on for years over access to the Ruby River and other state waters.
Trout Unlimited last week also backed away from a resolution that would have prohibited its chapters from getting involved in disputes over access through private property after its Montana membership voiced its displeasure.
With its wide open vistas, scenic mountains and large landscapes, Montana is a favorite haunt for the rich and famous.
“This state is changing right before our very eyes,” said John Gibson, president of Public Lands/Water Access Association. “The problem the public faces is that Montana’s public wildlife and fishing resource makes the land that much more valuable. Often when people move here, they want to make all of that a private resource.”
The people moving are only half of the equation, Gibson said.
“There are a lot of people who also want to sell their property and they know they’ll make the most money if they can find someone like Ted Turner or (Tom) Brokaw or (Charles) Schwab,” he said. “In order to attract buyers with money, they need exclusivity and that usually equates into tying up the fish and wildlife resource.”
The most sought-after properties adjoin public lands, Gibson said. If landowners are able to restrict public access to those public lands, then it becomes in essence the landowners’ own private playground, he said.
“That’s why we see a lot of these roads being gated,” he said.
The burden to fight those road closures often falls on the shoulders of county governments, which often don’t have large legal budgets.
Powell County Attorney Lewis Smith said the commission only agreed to take on the Carten Creek Road issue after it learned that others would help pay for the legal battle. State and Bureau of Land Management officials said Monday they had no interest in joining the fray.
“These are complicated cases and by the time they’re done, a county might spend tens of thousands of dollars in legal fees,” Gibson said. “They often don’t like the idea of spending that kind of money and therefore are often hesitant to fight to keep a road open.”
The Montana Legislature killed a bill this session that would have put the burden of proof on the person wanting to close the road, Gibson said.
“I don’t anticipate that this is going to stop anytime soon,” Gibson said. “Montana land is at a premium. Prices have gone up astronomically. If the public wants to retain its access to public lands, it better get with it.”
Reporter Perry Backus can be reached at 523-5259 or at pbackus@missoulian.com.
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