Public access battles won in courthouses’ dusty corners

Jeremy Chapman

Inside the vault at the Fergus County Courthouse where all the surveyor's record of roads are stored.


LEWISTOWN — Boom! Bernard Lea hefts the book onto the table. It makes a world atlas look like a dimestore paperback. He uses both hands to open its tattered cover and leaf through the pages, which are yellowed with age.

He finds the page he’s looking for, and locates a serpentine line squiggled in pencil, dotted with tiny numerical coordinates and other inscrutable text.


Marshall Swearingen

Bernard Lea stands outside the Fergus County Courthouse in Lewistown, Mont.

We’re in the Clerk and Recorder’s Office at the Fergus County Courthouse. Hundreds of other tomes are stacked to the ceiling, records compiled since Fergus County was founded in 1885. This particular tome is the “Surveyor’s Record of Roads,” and Lea is on the hunt for one road in particular. Today it’s called the Mabee Road, but when it was surveyed in 1913, it apparently had no name.

The Mabee Road runs north from Roy, and until 2007 it was one of the few ways to access public land at the heart of the Missouri River Breaks. That year, in a move that angered sportsmen, a landowner gated the road and claimed it was private.

Lea and other leaders of the non-profit Public Land/Water Access Association countered that the road was a public, county road. And so, as the case drags on and the road remains closed, Lea has again made the drive from Billings to Lewistown and spent the night at the Super 8 in order to dredge up documents to support PLWA’s case.

“This can be a lot of work sometimes,” he says, “but the evidence is there if you look for it.”

I’m here to get a taste of this work. I’ve written about how landowners block access to public land, and I’ve found that in many cases, it’s the skill and persistence of volunteers like Lea that have kept public access routes open. This work goes on behind the scenes, and is seldom acknowledged in the news, even as access conflicts like the one over the Mabee Road make headlines.

Lea asks me to help him read a number penciled in the surveyor’s records. He does not know what the number means. He asks one of the clerks about it, and the clerk directs us to a bank of files containing “road petitions,” which Lea is very familiar with. Petitions are requests for the county to commission new roads, and they’re coded by “township” and “range”—numbers assigned to the grid that organized early land settlement.

We pull the file for the Mabee Road area and open weathered envelopes containing the petitions, many of them written in swirling, old-timey script.

“A lot of these petitions, they didn’t put anything on the maps,” Lea grumbles.

Lea has done this work for at least three decades, much of that time as a Forest Service staffer. But he’s still learning new things, in large part because each of Montana’s 56 counties has a different way of storing and tracking records. That’s one of the major challenges of this work, but it also creates a certain allure of discovery.

Outside the main entrance of the Fergus County Courthouse in Lewistown, Mont.

Jeremy Chapman

Outside the main entrance of the Fergus County Courthouse in Lewistown, Mont.

For instance, the road surveys for most counties are spotty at best, Lea says. So he usually begins a new case by reading word-for-word the “commissioners journals”—the records, often hand-written, of all county commission business. He was doing that for the Mabee Road case a few years ago when he happened upon the road survey book lying out on a table. It turned out to be exceptionally complete. He found the pencil squiggle that looked like the old Mabee Road, and asked the clerks for the original survey records. The clerks sent him to the county sheriff’s office, where he found a cardboard box full of tattered survey journals.

Today, Lea is tracing his steps and scouring the records again. From the original survey journals, he knows the name of the man who conducted the survey in 1913, and now he searches the records for that name and any other mention of the old road. I chip in by typing search terms into a computer, returning a few results from the records that have been digitized.

Lea pauses to recount a case where this tedious record-searching paid off. While he was with the Forest Service in the 1980s, a landowner gated a road leading to Forest Service land in the Absaroka Mountains. Lea started searching the records kept by Stillwater County, where the road was located. It took some time before he discovered that in the early 1900s, when the road was commissioned, the area in question had actually been under the jurisdiction of Sweetgrass County.

He switched to that courthouse, and in the basement found original easements signed by the early landowners—solid proof that the road was a public, county road. The Forest Service easily negotiated the re-opening of the road.

The Forest Service and Bureau of Land Management still do some of this access work, but they’re being hit with tighter budgets, and more of the burden is falling on Lea and PLWA.

That’s another reason I’m here, along with Jeremy Chapman, the founder of Billings-based Montana Center for Investigative Reporting—perhaps reporters will have a role to play in uncovering evidence that illuminates future road closures.

By the end of the afternoon, Lea is satisfied with the day’s discoveries. He jokes with the clerks and rolls his briefcase full of maps, homestead patents, road petitions and survey records through the halls of the courthouse.

This is the fifth time he’s been to the courthouse for this case, he says. And he doesn’t complain about the probability that he’ll be back.