Kearns and Sons RS Aesthetics

County’s decision on Hughes Creek Road access to stand

By Michael Howell

The gate blocking Hughes Creek Road has been a longstanding issue of dispute. Hughes Creek Road was established as a 12-mile-long county road in the early 1900s. Since the late 1970s the road has been blocked by a gate about nine miles up. In the 1980s Ravalli County sued to have the gate removed. The parties eventually stipulated to have the case dismissed and the gate has remained in place ever since. Last year the issue was raised again and members of the public and representatives of the US Forest Service testified before the county commissioners seeking to have the gate removed. As a result the Commission ordered the gate removed by June 1, 2017. Landowners Zackary Jay and Tracy Bugli and Wade and Charlene Cox, as Trustee of the Cox Family Trust, filed suit asking the District Court to keep the road closed at the nine-mile mark. However, Langton has decided that his court has no authority to make a declaratory ruling in this matter, leaving in place the commissioners’ decision to remove the gate.


In their lawsuit the landowners asked for a declaratory judgment from Judge Langton that the county’s act of directing the plaintiffs to remove the gate and allow public access is barred by the doctrine of “claim preclusion.” The argument turns on the issue of whether or not the judge in the 1993 ruling that dismissed the case did so “with prejudice” or “without prejudice.” Langton notes that the 1993 order is ambiguous. However, he goes on to note that “if the dismissal was with prejudice, it would have the effect of a final judgment and purportedly serve to bar the County from seeking a declaration that the gate across the road is a nuisance and that its owners should be restrained from interfering with the public use of the roadway, all of which would imply that the road that was the subject of the unsuccessful 1982 petition for abandonment was now abandoned.”


Langton argues that the Court does not have jurisdiction over road abandonment, that it is under the jurisdiction of the County Commission. He states that any challenge of the Commission’s decision in that regard must be done as a Writ of Review and not a Declaratory Judgment. He argues that the court only has jurisdiction to review the legality of the commissioners’ decision about road abandonment and does not have the authority to make that decision itself.


Langton also notes that the dispute over the past Stipulation Order does not give rise to an issue of material fact.


“Regardless of how [that case] was dismissed and the legal effect of its dismissal, the declaration Plaintiffs seek in this court–that the County is barred from ordering removal of the gate–is substantively a challenge to the Commissioners’ denial of their petition for abandonment. If Plaintiffs were to prevail on this count, such declaration would effectively overrule the Commissioners’ denial and declare the road abandoned. In order for the Court to obtain jurisdiction under these facts, Plaintiffs must petition for a writ of review. The County’s argument is well-taken. This count should be dismissed for lack of jurisdiction.”


The plaintiffs also asked the court to declare that Hughes Creek Road never existed beyond the gate and is approximately nine miles long, and to grant injunctive relief barring public access beyond the gate.
Langton notes, however, that by asking this, “the Plaintiffs are effectively asking the Court to: (1) ignore the findings of two separate boards of commissioners that the county road extends some three miles past the gate, (2) override the Commissioners’ recent quasi-judicial decision to deny the petition for abandonment, and (3) abandon the road by enjoining public access. The only method by which a district court obtains jurisdiction to abandon a road is through a petition for writ of review. For the same reason stated in the section above, this count should be dismissed for lack of jurisdiction.”


In Count III, Plaintiffs seek a declaration “providing guidance” on the construction and application of the relevant law, and a remand to the commissioners for reconsideration of the petition for abandonment in light of such guidance. Langton rejects the claim on the same basis on which he denied the previous counts. He argues once again that the petitioners are asking the court to essentially make a declaration in favor of the plaintiffs when the court has no jurisdiction over the matter.


In Count IV, the plaintiffs make the “contingent claim” that “If, prior to the adjudication of these issues, the County orders, directs, or allows the removal of the existing gate and encourages or allows unfettered public access beyond the gate’s current location, and the Court later determines the property beyond is private, then the County’s actions will constitute a taking under the Fifth Amendment to the U.S. Constitution and Article II, § 29 of the Montana Constitution.”


Langton disagrees and denies this count for “failure to make a claim.” He reasons that because the claim is based on a contingency relating to the decisions made on Counts I and II, that no judgment can be made until those decisions are made.


“In view of its determination that Plaintiffs’ other counts must be dismissed for lack of jurisdiction, there will be no adjudication of these issues in this declaratory judgment action. Because Count IV is contingent upon the County taking certain action before the Court rules in a certain way on Counts I or II, and because Counts I and II must be dismissed for lack of jurisdiction, this contingent count cannot stand. Because it does not state a justiciable controversy, the Court lacks jurisdiction over it,” states Langton.


“Moreover,” he writes, “taking all of the allegations in the complaint as true, and considering nothing outside of the complaint for purposes of this count, the Court determines Plaintiffs can prove no set of facts that would entitle them to relief on this count in the absence of a favorable ruling on at least one of their prior counts over which the Court lacks jurisdiction. Thus, this count should also be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.”

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