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MADISON COUNTY / RUBY RIVER RULING
Montana TU Joins in Bridge Access Action
Montana Trout Unlimited has officially recognized the importance of PLWA litigation on the Seyler Lane bridge portion of the Madison County lawsuit . They will be filing a friend-of-the-court brief with the Montana Supreme Court. The very excellent announcement article from their Trout Line summer newsletter very succinctly and accurately describes the situation and tells why they made the decision. It is printed below:
"Another bridge too far"
Madison County case goes to Supreme Court
"The long running legal dispute over use of public bridges for recreational access to the Ruby River has landed in the Montana Supreme Court. In May, District Court Judge Loren Tucker ruled in favor of landowner and Atlanta media mogul James Cox Kennedy, declaring the public does not have legal access to the Ruby River from a county bridge at Seyler Lane. This comes four years after Judge Tucker ruled on summary judgment that access is legal from two other bridges on a county road that goes through private land, at Lewis and Duncan Lanes. The implications for statewide stream access of the recent ruling are profound.
The Seyler Lane dispute went to trial years after Montana's Public Land and Water Access Association (PLWA) sued Madison County to require Kennedy to remove fences designed to bar recreational access at public bridges. It differs from that of the Duncan and Lewis Lane circumstances in that the public easement for the county road and bridge through private land is prescriptive. The prescriptive easement had been established through regular, historical and non-contested public use and was not formally recorded. Judge Tucker found that an easement for a public right of way exists along Seyler Lane, but ruled it is only as wide as the actual road pavement. The judge ruled that PLWA not demonstrated the angling public had regularly gone beyond the pavement at Seyler Bridge to reach the Ruby River, and therefore declined to extend the easement to a width that would allow fishing access. Oddly, Judge Tucker held that Madison County does have the right to go beyond the pavement to perform road maintenance activities, meaning that two separate easements exist at the bridge -- one for the public, and one for the county. Finally, and most crucially, he ruled that recreational use alone could never be sufficient to establish a prescriptive easement.
The upshot is that recreationists could now be breaking the law for doing something they've done for decades -- entering streams at county bridges with prescriptive easements. PLWA is appealing to the Supreme Court, and Montana TU plans on filing a friend-of-the-court brief asking the court to reverse Judge Tucker's flawed ruling.
But that's not all. Kennedy's Missoula lawyer Colleen Dowdall also filed a cross-appeal in the Supreme Court seeking reversal of the 2008 decision that affirmed the public's right to enter the river at the Duncan and Lewis Lane bridges. It appears the intent of the cross-appeal is to eliminate Montana's bridge access statute, which an overwhelming bipartisan majority approved at the 2009 Legislature. That measure, which Montana TU was instrumental in both negotiating and seeing put into law, clarified a 2001 attorney general's opinion that said public access to rivers is legal at rights-of-ways at county bridges. Previous filings by Kennedy's lawyer indicate the landowner might also be seeking to eliminate an even more bedrock public right-of-way -- that of stream access for the public between the high-water mark of streams that support recreation. PLWA and Montana TU's briefs will also vehemently argue against the cross-appeal.
When the Montana Legislature passed the bridge access bill in 2009 after unsuccessful attempts in previous legislative sessions, it seemed like peace was at hand. The common-sense law allows for reasonable recreational access while accommodating landowner concerns over trespass, fencing for livestock and potential liability. It also allows landowners to challenge in site-specific cases whether historical recreational use was established enough to merit a prescriptive easement. Kennedy's challenges blow all this up. It appears they might also be intended to completely eviscerate our balanced stream access law, which serves so many and merely requires a modicum of mutual accommodation from a few. "