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PLWA Sets Up Stream Access Defense FundImportant Case Headed to Supreme Court
PLWA Sets Up Bridge / Stream Access Defense Fund
Dang ! We have to ask for money again.
In April of 2012 Madison County district Judge Loren Tucker ruled against PLWA in a case about a Seyler Lane road bridge - a "prescriptive" county road - a road created by public use rather than a formal process. The court held the prescriptive easement for the road was, in effect, two easements - one a public easement for just the road surface itself and a secondary easement of the full 60 feet for repair and maintenance. Thus, there would be no recreational legal access at bridges on prescriptive roads if this ruling holds.
PLWA strongly disagreed with this theory and appealed the case to the state supreme court. We believe that case law supports the policy that prescriptive rights include all legal uses within the prescriptive right-of-way. If the two easement theory were to hold, would it not mean school kids waiting for a bus would be trespassing - or a guy pulled off the road to fix a flat would be trespassing ?
The landowner involved with the bridge is James Cox Kennedy, an Atlanta mogul of the Cox Communications empire. He has filed cross appeal challenging the "constitutionality of any act of the Montana legislature." We are not sure what this means but it sounds like a challenge to the stream access law as well as the bridge access law. http://www.plwa.org/secure/index.php
No one knows how many prescriptive county roads there are in MT, but it is not wise to let Tucker's precedent setting ruling hold - or let the Kennedy cross appeal prevail.
Montana is lucky to enjoy the best stream access in the U.S. We cannot stand by and see it eroded by this case or any other cause. (Keep in mind that our current stream access law came about when an adverse lower court ruling was overruled by the supreme court. Many times the lower courts deliver a "home town" verdict.)
The George Grant Chapter of TU has started a Stream Access Defense fund for this case with a contribution of $1,500. The Magic City Fly Fishers TU Chapter in Billings also kicked in $1,500. Together with generous individual contributions, the fund has raised a total of $4,330 to date. Please consider chipping in generously. You can send it by mail to PLWA , P O Box 80987, Billings, MT 59108 - or do it on line at www.plwa.org .