Mabee Road case a victory for landowners, but at what price?

By 
Chuck Denowh
Wednesday, May 26, 2021

The Mabee Road case is a cautionary tale for all Montana landowners.

This saga started in 2007 when Mark Robbins gated a road on his property to stop trespassers. That action caught the attention of the Public Land Water Access Association, a nonprofit that exists to sue landowners to take their property. PLWA first attempted to pressure the Fergus County commission

PLWA first attempted to pressure the Fergus County commission to declare the road public. The commission asked their attorney to examine the matter—he concluded the road was private. Next, PLWA sued the Robbins’s with the objective of taking the road for public use—the district court concluded the road was private. So PLWA appealed to the Montana Supreme Court, which in a unanimous decision affirmed that the road was private.

It sounds like this result is a resounding win for the landowners. Not so fast. While the Robbins’s prevailed in court, they did so at an enormous price. This lawsuit cost them hundreds of thousands of dollars, countless hours of time, and untold stress. The Robbins family was vilified, lied about, and used as fundraising fodder.

In these cases there’s a distinct mismatch. The landowners are the only ones with skin in the game. For them, there’s no chance of a complete victory—they either lose their property or pay to defend it.

For PLWA there’s no chance of losing. They are either successful in taking the property they seek, or they use the case to raise money to sue the next landowner.

During the thirteen years the Mabee Road case played out, PLWA raised over $3.3 million. Through it all, attacks against the Robbins family featured prominently in their fundraising appeals. Contributions came from the elite of the outdoor world: Patagonia, Sitka, Cinnabar, Backcountry Hunters, and Montana Wildlife Federation, all responding to PLWA’s false accusations that the Robbins’s were illegally blocking a public road.

Up to this point, it’s clear the Robbins’s showed extraordinary bravery through this ordeal. But in truth their situation was even more dire. Under Montana’s private attorney general doctrine, if PLWA had been successful in their lawsuit, the Robbins’s would have been forced to pay PLWA’s attorneys fees. The reverse is not true—PLWA is immune and no compensation will be made to the Robbins’s.

When the 5-0 Supreme Court opinion was handed down, there was no fist pumping or back slapping by the defendants. Hundreds of thousands of dollars spent and years of frustration with a legal system that allows PLWA to file suits against landowners with little evidence have taken their toll.

The Robbins’s will spend years trying to recover. They had to sell part of their place and take out loans to foot their legal bills. But they have the satisfaction of keeping their ranch mostly intact.

PLWA spent lots of money as well, but that’s what they raise it for. They will move on to the next target, hoping to scare them into giving up their property instead of risking financial disaster. PLWA has created its own revolving door: sue to fundraise, fundraise to sue, all with impunity.

The lies about the Robbins family persist. PLWA and Montana Wildlife Federation routinely reference their report, “Roadblocked and Landlocked,” that falsely claims the Robbins are “illegally” blocking a public road. That report was produced after the Mabee road was determined to be private and it’s still available today after the definitive Supreme Court ruling.

The Mabee Road ruling was a strong victory for Montana landowners, which only means that PLWA will be looking for their next case to try to weaken it. Landowners can protect themselves by documenting permissive use of guests on their land. Those who don’t may find themselves in an expensive court battle to protect what is theirs.

Chuck Denowh is the policy director of United Property Owners of Montana.

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