SEELEY LAKE – Missoula resident John Rice has requested year-round access to his property on Cottonwood Lakes Road, National Forest System Road (NFSR) No. 477, from the U.S. Forest Service (USFS) Lolo National Forest (LNF). The Cottonwood Lakes Road has been closed to wheeled vehicle travel from Dec. 1 – April 30 since January 1994. Rice seeks to ensure wheeled-vehicle access through the winter for himself and his descendants and feels the USFS is refusing to honor past contractual agreements.
Rice purchased a half section of property in Powell County on Cottonwood Lakes Road about three miles from Highway 83 in September, 2013. Cottonwood Lakes Road bisects his property of which he estimates he pays taxes on 12 acres of roadway.
“This property was purchased in order to put it into a trust for future generations of my family that they might have a place to recreate when they desired and for as long as they desired with no permanent structures to ever be built,” wrote Rice in a letter addressed to LNF Supervisor Tim Garcia, Congressman Ryan Zinke and Mountain States Legal Foundation. “I purchased this property believing I had right-of-way rights through federal and state lands to the property.”
The title search noted a perpetual easement on the road through Rice’s property that allowed “the right to charge and to enforce collections from purchasers of timber or other materials…as set forth in the Morrell-Cottonwood Creek Road Right-of-Way Construction and Use Agreement dates March 30, 1964.”
Seeley Lake Ranger District (SLRD) District Ranger Rachel Feigley wrote in a letter dated Oct. 4, 2016 to Attorney Andrea Olson that the Morrell-Cottonwood Creek Road Right-of-Way Construction and Use Agreement was closed when the land was transferred from Plum Creek. “The Forest Service has no cost sharing agreement with Mr. Rice for road use and maintenance.” No documents were attached to the letter to prove this contractual closure.
When Rice purchased the property, he believed he had access to his property year-round because the title search noted a mutual easement between the previous landowners Northern Pacific Railroad and later Plum Creek and the state and federal government.
Because of a special closure order signed Jan. 5, 1994 by then LNF Supervisor Orville Daniels, Rice does not have wheeled-vehicle access in the winter. In this closure order it states NFSR 477 is closed to wheeled vehicle from Dec. 1 – April 30 from NFSR 4353 Clearwater/Morrell to NFSR 89 Morrell.
The closure order is what is reflected on the Motor Vehicle Use Map (MVUM) which displays the National Forest System roads and trails that are designated for motor vehicle use pursuant to 36 CRF 212.51. There is also a complementary Over the Snow Vehicle Use Map (OSVUM) which displays roads, trails and areas allowed for winter recreation. Both the MVUM and the OSVUM are free and available at the Seeley Lake Ranger District (SLRD) office.
The order does reserve the right to open individual roads to wheeled travel if deemed necessary to accomplish National Forest administration and management. However, according to Garcia, residential use does not necessitate opening the road. Rice’s use, whether recreational or logging, Garcia considers residential use.
In the letter from Feigley to Olson, Feigley wrote that the USFS is not precluding Rice’s access. However, the USFS has applied traffic control regulations excluding wheeled travel.
“Our records indicate this seasonal traffic control restriction has been in effect since 1994 when a Forest Closure order was implemented which is prior to acquisition of the property by Mr. Rice,” wrote Feigley.
Feigley told Rice that National Environmental Protection Act (NEPA) decisions that are the foundation for the closure orders are not recorded in the county office and would not show up in a title search.
Region 1 Realty Specialist Mark Petersen added that in the early 1990s Plum Creek, then owner of the section, met with the SLRD and the state. They all agreed with the decision for the snow route, thus forgoing future wheeled access to the property.
Garcia said that while the closure order is not perpetual and can be resided, the LNF has no future plans to modify this closure order. Rice requested to see the written agreement so he could see what rights he has to reside the agreement.
Rice was placed on disability retirement in 1982 and cannot ride a snowmobile. In a letter dated Jan. 29, 2014 past SLRD Ranger Tim Love instructed Rice to complete an Application for Permit to use the Cottonwood Lakes Road from Dec. 1 – April 30. Rice said he was given verbal approval to use the road once the application was turned in with the requirement that he maintain the road in the winter. Plowing the road was not a limitation because Rice owns heavy equipment that could maintain the road.
Rice never turned in the application because, while he acknowledged it addressed his access, the permit did not resolve the problem for future access. Rice is looking to ensure his family’s access rights and their ability to recreate is protected.
Garcia told Rice that the application would have needed to go through the approval process and a permit for use issued for it to be effective. Since the application was never submitted, the closure order is still in place and Rice does not have wheeled-vehicle access to his property during the winter months.
Rice also questioned the USFS’s management of the road, specifically using taxpayer’s dollars to cater to special interest groups. He said the Cottonwood Lakes Road is heavily used in the summer for hikers, bikers and by those who use the Wilderness Sportsman’s Club Shooting Range.
Rice feels that closing the road to wheeled vehicles in the winter caters to snowmobilers and excludes other recreationists including those that want to use the shooting range year-round.
Rice said he understands the value of recreation and thinks everyone could be accommodated. He suggested the USFS build a trail around Cottonwood Lakes Road for snowmobilers while allowing the road to be plowed for wheeled travel.
Garcia said that a large capital outlay for a trail system is a problem for the USFS. While he acknowledged he has the authority to change the closure order, he is not in a position to change the use of the road until all administrative alternatives are exhausted.
Rice also questioned the SLRD management of the Cottonwood Lakes Road by not opposing the proposed gravel pit in a letter to the editor printed in the Seeley Swan Pathfinder, Dec. 29, 2016. He asked Feigley to “step up to the plate and protect the hikers, bikers, ATVers and others that use this road for recreational purposes, as well as other obvious environmental concerns.”
Rice took it one step further when talking with Garcia.
“Do everyone a service, trade some of your ground for the gravel pit,” said Rice. “[USFS land] is on the highway and is in the public’s best interest for recreation, environment, safety and well-being of everyone.”
Garcia responded that there are parcels that are a higher priority for the LNF to pursue. Since the exchange is a high value, “it is not just done for convenience.”
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