“In the process of discovery, we found this individual who mentioned documents we hadn't received,” said attorney Hertha Lund. “Why haven't we seen them?”

The Tenderfoot Road is the focus of a public-land access struggle between landowner Howard Zehntner and two government entities, the U.S. Forest Service and the state of Montana.

Running along Tenderfoot Creek, a tributary of the Smith River, Tenderfoot Road crosses Zehntner's land and provides access to state and federal land beyond in the Little Belt Mountains.

Zehntner claims the road is private, while the state claims it's a country road. Zehntner said the original county road traversed national forest land east of his property.

The Forest Service has slowly been adding to that land since 2008, buying portions of more than 8,200 acres owned by the Bair Ranch Foundation. Thirteen sections of Bair Ranch land were dispersed in a checkerboard pattern among Forest Service sections.

The Rocky Mountain Elk Foundation bought the first few sections in 2010 with the help of the federal Land and Water Conservation Fund.

That year is also when the Department of Natural Resources and Conservation opened the state trust land that Zehntner leased to motorized use. Zehntner locked a gate that was on the state trust land until DNRC pressed him to keep it open.

In 2012, Zehntner opened that gate but installed another gate on his own property, which he locked.

Meagher County commissioners refused to support a lawsuit filed in October 2012 by the state Attorney General's Office requiring the road to be declared public.

Gov. Steve Bullock was serving as attorney general when the case was filed.

An associated injunction asked Meagher County District Judge Randal Spaulding to require Zehntner to keep the gate open while the lawsuit was being considered.

Spaulding agreed, saying the public would be harmed if the gates remained locked. He also rejected a claim that only the county could sue to open the road, saying the state was required to enforce state law.

As part of the lawsuit discovery process, Zehntner's attorneys filed a FOIA request with the Forest Service in November 2012 asking for all documents involving the Tenderfoot Road.

After further clarification, the Forest Service released three CD's containing more than 2,200 documents seven months later, according to the complaint.

Zehntner and his brothers incorporated their ranch as Zehntner Brothers LLC. The corporation was listed in the FOIA, so the Forest Service decided the request was for “commercial use” and charged almost $3,800 for the documents.

Zehntner paid but appealed the cost, saying he'd paid for more than 400 duplicated pages that were from strings of emails and lawsuit documents that he already possessed. The Forest Service denied the appeal.

Zehntner's attorneys questioned the thoroughness of the Forest Service's response after they interviewed retired Forest Service employee Dale Schaeffer in February.

Schaeffer, a land surveyor, said he had left his surveying notes and meeting documents regarding the Tenderfoot with the Forest Service when he retired. But the attorneys had no record of those notes.

The lawsuit says that the state of Montana provided two pages of its correspondence with the Forest Service that the Forest Service itself had not provided on the FOIA CDs.