A property rights case in Montana exemplifies a healthy boundary around privacy.
An unwillingness among county commissioners in Montana to defend access to public lands serves as an important lesson for all those concerned about shared spaces to hunt, recreate, and explore. More generally, a willingness among elected officials to refuse to enforce laws on behalf of the public writ large validates concerns about the rule of law in the United States.
A brief overview of the Hughes Creek Road case demonstrates that the rule of law depends on every level of government performing its legal obligations. For 40 years, landowners in Ravalli County, Montana, placed a gate on a county road, thwarting the public’s ability to access their lands, specifically, a National Forest trail and thousands of acres suited to recreation. In 1982, the county denied a petition to declare the road “abandoned” and ordered that the road “shall remain open to public use and all encroachments thereon must be removed forthwith.” The landowners did not remove the gate. When the county sued to direct the removal of the gate, the district court sat on the case and left it in limbo for over a decade. To use legal jargon, the county appeared to have failed to prosecute the matter, perhaps deeming it unworthy of additional resources.
Eventually, in 1993, the district court reminded the county and the landowners of their dispute. This prodding resulted in the parties stipulating to the dismissal of the case. The resulting stipulation and order from the court punctuated the county’s inadequate defense of the public’s interest in accessing their land. The status quo marched on. Landowners in Ravalli County and across the state were effectively notified that defending public access was not a key priority of counties nor courts, despite explicit laws banning the private enclosure of public lands.
The importance of property rights to Montanans—evidenced by robust property protections afforded by the state’s 1972 Constitution and recent legislative efforts to bolster those protections—helps explain why the county attorney and elected officials across the state may reluctantly enforce laws perceived to limit those rights. Elected officials in Montana rarely score political points with voters by appearing to infringe personal property rights, especially in cases, such as this one, where the landowners maintained a gate for decades without a peep from the county. The landowners in this case also had a compelling case that it appeared as though just a handful of particularly loud residents wanted the gate removed. Why would the County want to challenge the inalienable right of Montanans to acquire, possess, and protect their property (as set forth by Article II, Section 3 of the Montana Constitution) just to appease a few folks?
Likely counting on public sentiment being in their favor, in 2016, the alleged successors-in-interest to the land beyond the gate once again petitioned the county to abandon part of Hughes Creek Road. In 2017, the county finally got around to reviewing that petition. They once again denied it and directed the landowners to remove the gate by June 1, 2017, despite Montana law mandating that such encroachments be immediately removed. This passive aggressive enforcement of the law unsurprisingly emboldened the landowners.
The landowners continued to deny the public’s access. They even received assistance from the court, which granted the landowners’ motion for a temporary restraining order that allowed the gate to stay in place. The county did anything but place pressure on the court or landowners to enforce the law. Instead, the county attorney cited the need to prepare a thorough response as justification for the county’s request that the court delay additional hearings on the matter.
It took efforts by a third party—the Public Land/Water Access Association (PLWA)—to bring about a conclusion that courts had reached 40 years prior: The gate had to be removed. PLWA filed letters with the county, urged Montana’s attorney general to intervene, and kept its community of access advocates informed of this egregious lack of enforcement of the law. The landowners initially responded by doubling down on their illegal blockade. In addition to leaving their gate up, they intentionally felled trees across the road so that, even if the public felt they had legal authority to cross it, access to the lands would remain blocked.
In 2021, PLWA, after months of advocating for the county to do its job—namely, enforcing the law—took an action of “last resort.” The organization filed a complaint against the county seeking the court to force the county to fulfill its legal obligations. In early 2022, after the county had used several procedural tactics to delay proceedings, the landowner removed the gate as well as the additional barriers placed on the public’s road. The county did not enforce any citations or penalties on the landowners.
This saga is illustrative of a tendency by officials in executive capacities shirking their enforcement duties when they disagree with a law. As I have previously outlined, this trend is particularly widespread among progressive prosecutors. I am not the first person (nor will I be the last) to have called out the likes of San Francisco’s former district attorney, Chesa Boudin, for stealing legislative power from the people and legislators. This theft is undemocratic and, as demonstrated by this Hughes Creek Road case study, more ubiquitous than people may know.
When executive officials exercise undue discretion, they contribute to the slow but hastening demise of the rule of law. Excessive discretion by executive officials not only prevents the people from evaluating the merits of a law, but also turns compliance with the law into a question of resources. The landowners in the Hughes Creek Road case had the financial means to pay to delay enforcement of the law. Other landowners across Montana have picked up on this trend; PLWA has received dozens of reports of landowners blocking public roads.
If you were such a landowner, would you not do the same? Counties appear not to want to enforce the law; courts will likely permit delays in adjudicating such disputes; and, even if the law were enforced expeditiously, the applicable Montana statute only requires that landowners pay a fine of $10 for every day of illegal encroachment. For some landowners, $10 a day is well worth keeping the public out. The rule of law should not be for sale.
The Hughes Creek Road example also demonstrates that enforcement of the law is especially necessary in situations where enforcement of that law results in a diffuse public benefit. The record in the Hughes Creek Road case revealed that few members of the public accessed that road and the public lands beyond. This became a source of argument against enforcing the law: Why not just let landowners keep up the gates if the public does not even use the road? This argument has dangerous ramifications: the public should not have to hope for a PLWA-esque organization to intervene on their behalf when enforcement lags. The public should not have to organize, clamor, and lobby executives to do their jobs.
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Inadequate enforcement of laws protecting access to public lands have an added undemocratic effect: public lands are meant to be a place where people of all backgrounds can share a trail, a sunset, or a sunrise. The elimination of these democratic spaces will further reduce the odds of people forming the sort of shared connections that sustain a civic community. In property disputes between private owners and the public, private owners will bet the farm—literally, in some cases—to defend their claimed property rights; the public’s right to access their lands deserves the same sort of fierce advocacy by executive officials.
Seemingly insignificant refusals of local officials to enforce the law add up to troubling results: the entrenchment of a pay-to-evade schemes of enforcement and the elimination of diffuse public benefits, such as public lands, that require such enforcement.
At a time when Americans on the left and right do not agree on much, voters across the spectrum should rally in support of the rule of law. The alternative—letting officials exercise undue discretion—will erode the legitimacy of the law and accelerate the deterioration of democratic principles, including separation of powers and the sovereignty of the people.