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MADISON COUNTY / RUBY RIVER RULING
2008

Complete Text of Ruby River Ruling

SEPT 30,2008

(The following is substantially correct, but could be some errors in file conversion. )

MONTANA FIFTH JUDICIAL DISTRICT COURT, MADISON COUNTY
PUBLIC LANDS ACCESS ASSOCIATION INC.,
Cause No. DV-29-04-43 Petitioners, vs . THE BOARD OF THE COUNTY COMMISSIONERS OF MADISON COUNTY, STATE OF MONTANA, and TED COFFMAN, FRANK G. NELSON and DAVID
SCH ULZ, constituting members of said Commission and ROBERT R. ZENKER, in his capacity
as the County Attorney of Madison County, State of Montana and THE MONTANA STOCKGROWERS ASSOCIATION, HAMILTON RANCHES, and JAMES C. KENNEDY, Intervenors .

ORDER REGARDING MOTIONS FOR SUMMARYJUDGMENT
PROCEDURAL BACKGROUND'
Public Lands Access Association, Inc. ("PLAAI") filed a second amended
complaint alleging breach of public trust (Count One), breach of the doctrine of custom
(Count Two), declaratory judgment regarding Seyler Lane (Count Three), declaratory
judgment regarding public access to rivers and streams at public bridges, bridge
abutments, and rights of way (Count FouR), alternative writ of mandamus (Count Five),
and attorney fees (Count Six). (June 30,2006).
Madison County and intervenors Montana Stockgrower's Association ("MSGA"),
Hamilton Ranches, and James Kennedy responded to the second amended complaint.
Count Two and Five have been dismissed by Court order Feb. 21,2007 and Nov.
20,2006.
All parties moved for summary judgment. The summary judgment motions
involve Count One, Count Three, Count Four, and Count Six. The parties responded.
The parties replied. A hearing was held. The Court denied each party's summary
judgment motion regarding Seyler Lane (Count Three).

FACT BACKGROUND
Duncan District Road, Lewis Lane, and Seyler Lane are county roads in Madison
County, Montana. Duncan District Road became a county road by the statutory petition
process. Lewis Lane is a county road acquired by either dedication or grant. Both
Duncan District Road and Lewis Lane are 60 feet wide. Seyler Lane was acquired by
prescription.
All three of the county roads cross the Ruby River by way of bridges. Apparently
each bridge is less than 60 feet wide.
Fences built by adjacent landowners extend along each county road to the ends of
each bridge. At the ends of the bridges the fences narrow from the width between the
fences along the roads. The County gave permission to the adjoining landowners to erect
the fences to control the landowners' livestock. The fences on Seyler Lane were once
electrified. Now all the fences are wooden.
The public has crossed the fences attached to the ends of the bridges to reach the
Ruby River from the respective county roads.

ISSUES
The summary judgment motions involve four main issues: (1) Whether the 60
foot wide road rights of way are less wide at the bridges, (2) what use may be made of the
rights of way, (3) whether the fences are "encumbrances" within the meaning of Section
7, Chapter 14, Part 21, M.C.A.. and (4) whether PLAAI is entitled to attorney fees.

ANALYSIS
Summary Judgment
Sylmar judgment is only appropriate when no genuine issues of material fact
exist, and the moving party is entitled to judgment as a matter of law. M. R. Civ.
P. 56(c). The moving party bears the burden of establishing that no genuine issue
of material fact exists. (Citation omitted) Once the moving party meets that
burden, then the non-moving party must provide substantial evidence that raises a
genuine issue of material fact in order to avoid a grant of summary judgment in
favor of the movement. (Citation omitted).
Fisher v. ,Swift Transportation & J&D TruckRepair, 2008 lvlT 105,Y 12, 342 Rilont. 335,
7 12; 181 P.3d 601,T 12.
"[The non-moving party must set forth specific facts and cannot simply rely upon
their pleadings, nor upon speculative, fanciful, or conclusory statements." Thomas v.
Hale (1990), 246 Mont. 64,67, 802 P.2d 1255, 1257.
Affidavits are considered. Rule 56(c), M.R.Civ.P. "The court must consider the
depositions, answers to interrogatories, admissions on file, oral testimony and exhibits
presented, and other similar material to determine whether any of the issues are real and
genuine." Brown v. Thornton (1967), 150 Mont. 150, 155,432 P.2d 386, 389.


Mootness
Kelmedy, MSA, and Hanlilton Ranches contend PLAAI's claims are moot because
the fences do not intimidate the public or impede access to the Ruby River. See infia.
PLAAI contends its claims remain viable because Kennedy, MSGA, and Hamilton Ranches still impede the public's claimed right of access to the Ruby River next to the bridges by erecting fences which are encroachments
"A matter is moot when due to an event or happening, the issue has ceased to
exist and no longer presents a11 actual controversy." Hilands GolfClzlb v. Ashmore, 2002 IvIT 8; 7 2,3, 308 hrfont. 1 1 1 , 1 23,39 P.3d 697,123. "Where a court's judgment will not effectively operate to grant relief, the matter is moot." Clark v Roosevelt County, 2007MT 44,7 11, 336 Mont. 118,q 11, 154 P.3d 48,y 11 (Citation omitted).

PLAAI contends the public is entitled to access to the Ruby River next to the
bridges. Kennedy, MSGA, and Hamilton Ranches dispute this. PLAAI contends the fences are "encroachments" that must be removed. Kennedy, MSGA, and Hamilton Ranches dispute this as well. Although the fences apparently do not prevent access to the Ruby River or intimidate the public, fences remain at the respective locations. The issues
whether the public has access to the Ruby River on county road rights of way at the
bridges and whether fences are "encroachments" still exist and present an actual
controversy. The Court's judgment could grant relief an the above issues.
Kennedy, MSGA, and Hamilton Ranches' position is unpersuasive.
Standing Kennedy contends PLAAI lacks standing because PLAAI admits the fences do not
impede or intimidate the public. Therefore, Kennedy contends there is no injury.
The second amended complaint alleges a right to reach the Ruby River by way of
county roads, and that Madison County has failed to remove "encroachments." PLAAI
has alleged a past, present, and threatened injury to its right of access and failure of
Madison County to follow the law. PLAAI’s interest is sufficiently significant that the
court should examine its claims. Kennedy's position is unpersuasive.

Justiciable Controversy
Kennedy contends PLAAI's claims are nor~justiciable because the fences do not
impede or intimidate the public and the public has access to the Ruby River at other
designated fishing access sites.
"The existence of a justifiable controversy is a threshold requirement in order for
a court to grant relief." Powder River County 11. State, 312 Mont. 198, 229, 60 P.3d 357,
379 (2002). The test of whether a justifiable controversy exists contains three elements:
1. First, a justifiable controversy requires that parties have existing and genuine, as
distinguished from theoretical, rights or interest.
2. Second, the controversy must be one upon which the judgment of the court may
effectively operate, as distinguished from a debate or argument invoking a purely
political, administrative, philosophical or academic conclusion.
3. Third, it must be a controversy the judicial determination of which will have the
effect of a final judgment in law or decree in equity upon the rights, status or legal
relationships of one or more of the real parties in interest, or lacking these
qualities be of such overriding public moment as to constitute the legal equivalent
of all of them.
Nortbfield Ins. Co. v. Mont. Ass'n of Counties, 301 Mont. 472, 475-476, I0 P.3d 813, 816
(2000).

When utilizing this standard it is clear that: (1) the parties' respective rights of
access and possession regarding the Duncan District Road, Lewis Lane, and Seyler Lane
have created a genuine controversy of the availability of access at other designated sites;
(2) the controversy over the scope of those rights is one upon which the judgment of the
court may effectively operate; and (3) judicial determination over the controversy can
have the effect of a final judgment in law.
Kennedy's position is unpersuasive. The Court should rule on the motions.

Public Trust Doctrine
PLAAI contends that the theory of the public trust doctrine entitles the public to
access the Ruby River from public rights of way. Kennedy, MSGA, and Hamilton
Ranches contend otherwise. PLAAI's argument is not compelling. However, the Court
need not consider this theory. The analysis set out below controls.

Road Abandonment Statute
PLAAI contends Section 7-14-2615(3) evidences a legislative intent to preserve
the public's right to access the Ruby River from public highway rights of way. Section
7-14-2615(3) involves the abandonment of county roads. Kennedy, MSGA, and Hamilton Ranches contend that the abandonment statute is irrelevant. It appears that interveners may be correct. However, the Court need not consider this theory. The analysis set out below controls.

Stream Access Law
Kennedy, MSGA, and Hamilton Ranches contend the public's right to use surface
waters does not grant any easement or right "to enter onto or cross private property in
order to use such waters for recreational purposes." Section 23-2-301(4), h4.C.A.
Kennedy, MSGA, and Hamilton Ranches contend that allowing access to the Ruby fiver
by the public at bridges would contravene the statute. No one seriously argues that the
public has a right to cross private property. This argument need not be analyzed. Instead
the issue the Court must determine is what property is private and what is public.

Statutory Access Sites
Kennedy, MSGA, and Hamilton Ranches contend the public has sufficient access to
the Ruby River at designated state fishing access sites. Kennedy, MSGA, and Hamilton
Ranches contend that statutory provisions for such sites would be superfluous if the
public is also entitled to reach the Ruby River on the rights of way for Duncan District
Road, Lewis Lane, and Seyler Lane.
The fact that the legislature created a mechanism by which the State may acquire
other public access across private lands for purposes of fishing does not in any way
define the extent and scope of existing rights of way for the roads in question. See
Sections 87-1-285 and 87-1-286, M.C.A. Kennedy, MSGA, and Hamilton Ranches'
position is w~persuasive. ~.
Taking of Private Property
The argument advanced by interveners that their private property will be usurped
by the public misses the mark. The first consideration is whether the disputed area is
public or private. As set out below, that determination is dispositive.

Stream Bed Ownership
Stream bed ownership is not an issue in this case. The issue is whether the
disputed area next to the stream is available for public use. Therefore, the Court need
not consider any contention regarding stream bed ownership.

Indispensable Parties
Kennedy, MSGA, and Hamilton Ranches contend PLAAI’s claims must be
dismissed because indispensible parties were not joined. The contention remains
unpersuasive for the reasons stated in the Order of June 11,2008.

Exhibits
PLAAI submitted two exhibits at the summary judgment hearing for the Court's
consideration. Kennedy objects. MSGA and Hamilton Ranches do not object, but they
argue the exhibits have limited applicability to the substantive issues presented. The
parties filed supplemelltal briefs stating their positions.
The exhibits involve the legislative history of House Bill 269. The Court did not
rely upon the exhibits. Therefore, the admission of the proposed exhibits is moot.

Issue One - Whether the Width of Right of Way at the Bridges is 60 Feet
PLAAI's contends the public has the right to reach the Ruby River by using Duncan
District Road, Lewis Lane, and Seyler Lane. Madison County does not oppose PLAAI’s
position on this point. Fact finding is necessary regarding Seyler Lane. This analysis and
ruling applies only to Duncan District Road and Lewis Lane.
Kennedy disagrees. Kennedy contends that fences attached to bridges terminate
the public right of way and separate the right of way from private property owned by the
adjacent landowners.
MSGA and Hamilton Ranches echo Kennedy's contentions. MSGA and Hamilton
Ranches contend the width of the rights of way at the respective bridges is not 60 feet.
They argue that the right of way is limited to only the width of the bridge. They conclude
that the public does not have access to the river at bridges.

Duncan District Road
The parties agree that Duncan District Road is a county road established by
petition. Transcript 10:2-11:3 (July 25,2008). The parties agree that the Duncan
District Road right of way is 60 feet. Id. It is unrefuted that the public may travel the full
width of the 60 foot right of way on Duncan District Road. Id. at 75:8-77:15, 131 11-6.
The parties disagree about the width of the Duncan District Road right of way at
the bridge.
Section 7-14-2101(2)(a) l\/ M.C.A. provides, "'Bridge' includes rights-of-way or
other interest in land, abutments, superstructures, piers, and approaches except dirt fills."
Section 7-14-21 12(1) provides, "The width of all county roads, except bridges, alleys, or
lanes, must be 60 feet unless a greater or smaller width is ordered by the board of county
cominissioners on petition of an interested person." Kennedy, MSGA, and Hamilton
Ranches rely upon these sections to support their contention hat the right of way across
the Ruby River on Duncan District Road is less than 60 feet and is thus limited strictly to
the width of the bridge.
There is no doubt that the bridge on Duncan District Road is part of the Duncan
District Road right of way. See Section 7-14-2101(2)(a) and Section 60-1-201(c) (public
highways include county roads); see also State ex rel. Judith Basin County 11. Poland
(1921), 61 Mont. 600, 604,203 P. 352, 353 ("It is conceded, as it must be, that a
complete bridge used by the public is a part of the public highway.") State ex re/. Furnish
v. Mullendove (1916), 53 Mont. 109, 113-15, 161 P. 949, 951-52 ("a bridge is part and
parcel of the highway upon which it is built. . . . If the highways belong to the public, it
must follow that anything permanently affixed to them, either in the way of repairs or in
the form of completed structures, such as bridges and the like, become a part of them, and
as much of public right as the highways themselves."); State ex rel. Foster 1). Ritch
(1914), 49 Mont. 155, 156-57, 140 P. 731 ("A bridge is to be treated as but a portion of a
public highway."). Therefore, the only issue to be resolved is the width of the right of
way at the location where a bridge exists upon a county road.

Section 7-14-21 12(1) provides that bridges may be excepted from the general
-requirement that county roads shall be 60 feet wide unless otherwise ordered-by-the board of
county commissioners. The statute does not mandate either a greater or lesser width at
bridges. It is already demonstrated that a bridge is part of a county road. The cases have
held that a bridge encompasses a part of the county road. By definition a part is less than
the whole. Therefore, there can be no conclusion that a right of way at a bridge is
automatically less than 60 feet wide. In contrast the right of way, of which the bridge is a
part, shall be 60 feet wide unless otherwise ordered. No order otherwise has been pointed
out to the Court for any portion of the Duncan District Road. Therefore, the right of way
for its full length must be 60 feet, including that portion upon which is located the bridge
across the Ruby River.

Moreover, it is clear from explicit statutory language that the board of county
commissioners could have ordered the right of way to have been more than 60 feet wide.
Thus, the analysis set out above demonstrates that the right of way at the bridge could
have been greater than 60 feet wide.

For these reasons the argument cannot succeed that a right of way either generally
or in this case is limited to the width of the bridge. There is no evidence to the contrary
so the Court must conclude that the right of way is 60 feet wide at the bridge.

Lewis Lane
Fences and the bridge oil Lewis Lane are situated essentially the same as on
Duncan District Road.
Kennedy contends the language of the deed does not grant or intend to grant the
public access to the Ruby River. Kennedy contends the deed only grants a 60 foot strip
of land for purposes of a county road. His implicit argument is that a county road may
not be utilized in the vicinity of water. That argument is unsupported by authority or
logic. It is unpersuasive.
The analysis applied to the Duncan District Road applies with equal force to
Lewis Lane in determining the width of the right of way at the bridge.

Issue Two - Use of the Right of Way
The public is entitled to use the entire 60 foot width of Duncan District Road, not
-----just the-beaten path. See Butte v. Mikaso~~i(t1z9 09), 39Mant.~3503,- 57, 102 P.~593j -~ .
595-596 (citing Burro~v~. sG z~es(tU tah 1887), 5 Utah 91, 98, 12 P. 847, 850).
It also has been conceded in this case that the public may utilize and travel upon
the full width of the county road right of way.
It is true that Howard v. Flathead Independent Telephone Co., 49 Mont. 197, 141
P. 153 (1 9 14) held that when a "sufficient" portion of the highway is graded or otherwise
prepared for use the duty then devolves upon the traveler to keep within that portion
prepared for his use. The disputed use in that case involved a lady driving her horse to a
buggy and who ran a wheel onto a utility guy wire off the graded portion of the road but
within the right of way. The court concluded that she was not entitled to recover
damages . Negligence issues and damages are not involved in this case.
Further, Howard did not hold that the public was prohibited from using any
portion of the right of way.
Moreover, the Howard court considered facts i11 which a "sufficient portioil of the
right of way" was graded or otherwise prepared for use. The issue here is to determine
what constitutes the right of way and whether a sufficient portion has been prepared for
use. Ho~lardis not helpful.
Other cases have held that the public may travel upon waters of the state between
the high water marks. Therefore,, where a county road intersects state waters, the portion
of each which is congruent with the other creates two over lapping public rights of way.
There has been no law nor cogent argument presented to the contrary. The argument that
the public is not authorized to cross private property to reach state waters simply does not
address the issue of what property constitutes the public right of way. That argument
assumes that the property in question is "private." The argument is not remotely helpful
to the analysis. The same reasoning applies to the argument that the Court must consider
alleged private ownership of the bed of the stream. That is not an issue in this case. The
issue is the width of the county road right of way.
Summary judgment should be awarded to PLAAI on Count Four regarding
Duncan District Road and Lewis Lane,

Issue Three - Encroachments
PLAAI contends that the fences within the highway rights of way at the ends of
the bridges moss the Ruby River on Duncan District Road, Lewis Lane and Seyler Lane
are encroachments, that Madison County has a duty to remove the alleged
encroachments, and that Madison County has violated its duty by failing and refusing to
remove them
Madison County, Kennedy, MSGA, and Hamilton Ranches contend h4adison
County did not breach any duty because Madison County has discretionary power to
manage county roads and highways. They collectively contend that the fences are not
encroachments but devices to manage the best interests of the county roads and road
districts.
Section 7-14-2 134 provides,
(1) If any highway is encroached upon by fence, building, or otherwise, the road
supervisor or county surveyor of the district must give notice, orally or in writing,
requiring the encroachment to be removed from the highway.
(2) If the encroachment obstructs and prevents. the use of the highway for
vehicles, the road supervisor or county surveyor must immediately remove the
sane.
(3) The board of county commissioners may at any time order the road supervisor
or county surveyor to immediately remove any encroachment.

Whether the fences at the intersections of the respective county roads and the
Ruby River are encroachments is a question of law. The Coltl-t's role 3s to interpret the
meaning of the terms included in a statute, not to insert what has been omitted. Section I -
2-101, MCA." I12 the Matter ofthe Mental Health ofE. T., 2008 MT 299,q 22,
- Mont.-, 'fi 22, -P.3dV, 7 22.
PLAAI contends the term "encroachment" means "fence" because the word
"fence" is used in Section 7-14-2134(1). The statute recites what must occur when a
fence (or other) encroaches upon a highway. It does not define a "fence" as an
"encroachment."
"Encroached" and "encroachment" are not defined in the statute. Therefore, the
Court must interpret the ordinary meaning of the terms. See Werre v. David (19961,275
Mont. 376, 913 P.2d 625,631.
PLAAI relies on the definition of "encroach" in a i@errian?- Webster Dictionary.
The definition PLAAI provides without designating the particular dictionary upon which
it relies is:
~ . 1 : to enter by gradual steps or by stealth into the possessions or rights of another
2 : to advance beyond the usual or proper limits"
PLAAI’s Combined Motion for Partial S.J. Re: Public Access to Rivers and Streams from Public Highways and Br. in Support 12:6-9 (May 19,2008). The Court referred to
Webster 's Ninth Collegiate Dictionary (1984) which provides an identical definition. See infra.

Intervener Kennedy cites to the 8" Edition of Black’s Law Dictionary which
defines "encroach" as "to gain or intrude unlawfully." The Court has only the 4th Edition
of Black's Low Dictionary hich provides, "An encroachment upon a street or highway
is a fixture, such as a wall or fence, which illegally intrudes into or invades the highways
or encloses a portion of it, diminishing its width or area, but without closing it to public
travel." Black3s Law Dictionary 620 (4" ed., West 1951) (emphasis added). All
definitions include an element of illegal activity. The Court must determine whether the
fence which intrudes or diminishes width is illegal.

Madison County has the power to "maintain, control, and manage county roads
and bridges within the county." Section 7-14-2101 (l)(a)(i): see also Section 7-14-2103.
Duncan District Road, Lewis Lane, and Seyler Lane are county roads and public
highways in Madison County. See Section 60-1-201(c). Furthermore, Madison County
has the power to, "in its discretion do whatever may be necessary for the best interest of
the county roads and the road districts." Section 7-14-2102.

Madison County authorized landowners to erect the fences at the respective
locations to control livestock. There is no evidence that controlling livestock is an
unreasonable illegal goal. The landowners erected fences in compliance with Madison
County's directives. Therefore, the fences are authorized. An authorized fence is not an
encroachment. Thus the fences Madison County authorized are not encroachments.
PLAAI argues, "A highway is 'encroached' if a private landowner erects a fence
'beyond the usual or proper limit."' PLAAI’s Combined Motion for Partial S.J. Re:
Public Access to Rivers and Streams form Public Highways and Br. in Support 12: 10-1 1
(May 19, 2008). However, the key words in PLAAI’s definition are "beyond the usual or
proper limits." (Emphasis added).
- ~ - "Usual" means-"1:~accordant-withu sage, custom, or habit:NORMAL[;] 2:
commonly or ordinarily uses[;] 3: found in ordinary practice or in the ordinary course of
events: ORDINARY." Webster 's Ninth Collegiate Dictionary 1299 (1984). "Proper", in
this context, means appropriate. See Black's Law Dicti0nar.y 1381 (4t" ed., West 1951)
and Webster 's Ninth Collegiate Dictionary 943 (1984).

PLAAI argues that fences tied to the ends of bridges are the ordinary situation in
Madison County. This position is manifest in its request for relief to be applied or "all
roads in Madison County." PLAAI’s own arguments demonstrate that the fences about
which it complains are usual and ordinary. Therefore, private landowners have not
erected fences beyond the usual limit. The fences are proper because they have been
authorized in the discretion of Madison County.
PLAAI contends the particular encroachment provisions (Section 7-14-2134
through Section 7-14-2136) are paramount to and control the general maintenance
provisions (Section 7-14-2101 through Section 7-14-2103). See Section 1-2-102,IvI.C.A.
That position may be true if the provisions were inconsistent. However, any fence,
authorized or not, must be an encroachment to reach the conclusion advanced by PLAAI.
The fallacy of that conclusion has been demonstrated.

If Howard, supra, has effect upon this case at all, it can be only the implication
that it is permissible to place telephone poles and guy wires within tile right of way, even
when a user of the road suffers physical damages. When such poles and guy wires are
authorized there is no reason to prohibit a fence which has not caused physical damage.
PLAAI’s complaint also alleges the fences constitute unlawful encroachments
designed to block and/or intimidate the public from accessing the Ruby River. Second
Amd. Compl. for Declaratory Judm. and Pet. for an Alt. Writ of Mandamus 17 20-22.
PLAAI asks the Court to determine as a matter of law that counties may not allow private
landowners to erect fences within the public highway right-of-ways which impede
members of the public from access to the rivers. PLAAI’s Combined Mot. for P.S.J 23-8.
However, Tony Schoonen testified for PLAAI pursuant to Rule 30(b)(6), M.R.Civ.P. that
the fences are not intimidating to the public. Depo. Tony Schoonen 40:6-8 (April 21,
2008). The wooden rail fences are "good enough" and "fine." Depo. Schoonen 44:6-20.
PLAAI is "satisfied with the wood rail fences." Depo. Schoonen 465. Schoonen's
testimony concedes that the-fences do not impede, block, or intimidate the public from
~
reaching the Ruby River. PLAAI’s complaint and request for relief is mooted by its own
deposition testimony.
PLAAI’s encroachment theory must fail.

Conclusion
No genuine issues of material fact exist regarding alleged encroachments at the
bridges on Duncan District Road, Lewis Lane and Seyler Lane. Madison County,
Kennedy, MSGA, and Hamilton Ranches are entitled to judgment as a matter of law
regarding Count One.

Issue Four: Attorney Fees
Madison County, Kennedy, MSGA, and Hamilton Ranches moved for summary
rudiment regarding PLAAI’s request for attorney fees (Count 6). PLAAI seeks attorney
fees as a successful applicant for a writ of mandamus and pursuant to the private attorney
general doctrine.

Writ of Mandamus
The Court dismissed PLAAI’s writ of mandamus claim. Or. Denying PLAAI’s Pet.
for a Writ of Mandamus (Nov. 20,2006). Therefore, PLAAI was not a successful
applicant. Attorney fees cannot be awarded to PLAAI based on. its unsuccessful
application. Therefore, Madison County, Kennedy, MSGA, and Hamilton Ranches are
entitled to judgment as a matter of law.

Private Attorney General Doctrine
There are three factors to be considered in awarding attorney's fees based upon
the private attorney general doctrine: (I) the strength or societal importance of the public
policy vindicated by the litigation; (2) the necessity for private enforcement and the
magnitude of the resultant burden on the plaintiff; and (3) the number of people standing
to benefit from the decision. School Trust v. State e.z ?el. Bd qfConzm >s, 296 Mont.
402,421-422, 989 P.2d 800, 811-812 (1999). "The [private attorney general] Doctrine is
normally utilized when the government, for some reason, fails to properly enforce
interests which are significant to its citizens." In re Dearborn Drainage Area (1989), 240
Mont. 39,43,782 P.2d 898,900.
. ~~.. ... The Montana Supreme Court also has-limited private attorney general fees to
"litigation vindicating constitutional interests." Am. Carzcer Sac y v. State, 325 Mont. 70.
77, 103 P.3d 1085, 1091 (2003). The Court in that case found a statute ineffectual rather
than unconstitutional and reasoned that "without the vindication of a constitutional
interest, this case does not warrant private attorney general fees." Id. Constitutional issues
must be involved before determining whether private attorney general fees are warranted.
PLAAI asserts that Madison County violated the PLAAI and the public's
constitutioilal right to access the Ruby River. As has been noted above, Madison County,
Kennedy, MSGA, and Hamilton Ranches have not impeded or intimidated the public to
prevent the public from reaching the Ruby over. Therefore, Madison County has not
acted unconstitutionally to do so.
Madison County, Kennedy, MSGA, and Hamilton Ranches are entitled to judgment
as a matter of law regarding Count Six.

NOW THEREFORE, IT IS HEREBY ORDERED that:
1. PLAAI’s motion for summary judgment 011 Count Four as it pertains to
Duncan District Road and Lewis Lane is granted to the extent that the
public may utilize any portion of the 60 foot right of way regardless of
the Ruby River intersection with it and subject to law-full management
by Madison County Commissioners. Count Four is dismissed with
prejudice as it pertains to any other county road.
2. Madison County, Kennedy, MSGA, and Hamilton Ranches' motions for
summary judgment regarding Count One are granted to the extent that
Count One of PLAAI’s second amended complaint is dismissed with
prejudice.
3. Madison County, Kennedy, MSGA, and Hamilton Ranches' motions for
summary judgment regarding Count Six are granted to the extent that
Count Six of PLAAI’s second amended complaint is dismissed with
prejudice.
4. PLAAI’s exhibits P-1 and P-2 are not admitted into evidence for
summary judgment purposes.
5. The Clerk of Court will please file this Order and distribute a copy to all
parties.
Dated: September 2008.



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Tenderfoot - Four Years and Counting
9/24/2015Tenderfoot Creek is a tributary of the Smith River, joining the Smith a mile or so north of Camp Baker.


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Madison County Courthouse



Public Land/Water Access Association Inc. or PLWA, is a citizen group organized and operated under the Montana nonprofit corporation act.

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Articles and Information on this site represent the opinion of the writer and are not intended as legal advice. Legal counsel may be needed in dealing with specific access situations and issues.
     
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