DUNCAN ADAMS
Rock Creek Cattle Co. lost a round Friday after a more than four-hour hearing focused on whether part of a road Powell County wants to use for a recreational trail is a county road.
District Court Judge Ray Dayton did not comment on the condition of the road. Instead, it found that Rock Creek Cattle Co. had failed to meet the legal tests necessary for it to grant a preliminary injunction to continue blocking construction of the Old Yellowstone Trail.
Dayton previously halted construction of the trail on June 14 with a temporary restraining order requested by Rock Creek Cattle Co., which is both a cattle ranch west of Deer Lodge and an exclusive enclave for the wealthy.
Theoretically, the Powell County contractor can now resume construction of the trail. But Dayton warned that if the road dispute goes to trial and the county loses, it could be held responsible for restoring the disturbed land.
No date has been set for a trial.
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Jack Connors represented plaintiff Rock Creek Cattle Co. and Kathryn McEnery, a county attorney, represented Powell County.
Connors’ first witness was Brian Henningsen, ranch manager of Rock Creek Cattle Co.
He testified that the construction that began in May was stressful for cows and calves during calving season, a reality he said could affect calf weight gain and affect the ranch’s bottom line.
McEnery asked if there were any other areas on the ranch’s more than 35,000 acres where calving could take place. Henningsen replied that the area near the trail is ideal for several reasons. Among them, he says, are cool-season grasses that turn green early.
He said he was led to believe the county would respect the ranch’s desire that construction not take place during calving season, but work continued anyway.
Henningsen also raised concerns that trail activities could spread noxious weeds and that trail guests with dogs could lead to problems with livestock. That could be true, he said, even if the dogs are leashed.
Connors also called Jack Owens, a title insurance professional with decades of Powell County experience.
Owens said his review of the records suggested the road in question – called Old County Road No. 9 – was more likely not to be a county road than the alternative.
Yet McEnery called witnesses and produced maps suggesting that old County Road #9 has been a county road since the early 1900s and was never officially abandoned by the county.
Powell County Commissioner Doug Crachy said he was born and raised on a small cattle ranch. He testified that he did not believe pedestrians or cyclists on the trail would unduly affect cows and calves.
“I don’t think a lot of people will be walking there during calving season,” Crachy said.
He said the county plans to watch for weeds along the trail.
The Old Yellowstone Trail vision calls for easy access for Deer Lodge and Powell County residents and visitors to a 10.5 mile flat trail suitable for biking, walking, talking, hiking, family time, bird watching and more.
The trail would connect Deer Lodge to Garrison and already has a trailhead on the road to the entrance to Rock Creek Cattle Co.
About 7.5 miles covered. About 3 miles still needs work. Powell County had hoped to cover those miles this summer, with plans to also add a trailhead at the end of Washington Street at Deer Lodge.
But Rock Creek Cattle Co. filed a lawsuit June 13 in Powell County District Court to stop construction.
His attorneys argued that the old road Powell County wanted to incorporate into the trail was not a public county road and requested a temporary restraining order that would stop construction.
Dayton granted the order the next day and set July 1 as the date to consider Rock Creek’s accompanying motion for a preliminary injunction.
Rock Creek Cattle Co. said a temporary restraining order and preliminary injunction would preserve the status quo until a lawsuit provides a forum for each side’s case.
And he defined the status quo as the ranch’s “exclusive right to use its property without county interference.”
The Grant-Kohrs Ranch National Historic Site also disagreed with Powell County’s findings that Old County Road #9 is a county road. McEnery said she hoped the dispute could be settled administratively.
Part of the Old Yellowstone Trail follows the former right of way of the Milwaukee Road. The county acquired this right of way with money from the state’s natural resource damage program.
NRDP funds are intended to support the restoration of damaged natural resources and to help offset the decades of public recreation crippled by pollution from mines and smelters.
