ATTORNEY GENERAL RULES

During the 1990’s there was a great deal of controversy about access to streams at bridges. In reaction to this , MT Fish Wildlife and Parks requested an opinion from the Attorney General about the legality of recreational access at bridges. The following are excerpts from the opinion issued by the A.G. (A.G. opinions have the force of law until overturned by legislation or court decision. Bills to put the opinion into law were defeated in both the 2005 and 2007 legislative sessions.) A selection of the response from AG Mazurek on the legality of recreational access at bridges is below. The full text is available here.

May 26, 2000
Mr. Patrick Graham, Director
Department of Fish, Wildlife and Parks
Mr. Robert R. Zenker
Madison County Attorney

Dear Mr. Graham and Mr. Zenker:

You have requested my opinion on the following question:

May a member of the recreating public gain access from the right-of-way of a public road at a bridge crossing to a stream or river between the ordinary high-water marks?

Your opinion request evolved through a series of controversies between the recreating public and riparian landowners along the Ruby River in Madison County. Recreationists assert that they may use county road bridge crossings as access points to fish and float the Ruby River. Individual landowners have asserted that the public does not have access, and have requested that local law enforcement and the wardens employed by the Department of Fish, Wildlife and Parks cite the public for trespass when the recreationists gain access to the Ruby through the use of bridge crossings. You are seeking guidance as to whether the game wardens and local law enforcement should cite the recreating public for trespass.

HELD:

1. Use of a county road right-of-way to gain access to streams and rivers is consistent with and reasonably incidental to the public’s right to travel on county roads.

2. A bridge and its abutments are a part of the public highway, and are subject to the same public easement of passage as the highway to which they are attached. Therefore, the public may gain access to streams and rivers by using the bridge, its right-of-way, and its abutments.

3. A member of the public must stay within the road and bridge easement to gain access to streams and rivers. Absent definition in the easement or deed to the contrary, the width of a bridge right-of-way easement is the same as the public highway to which it is attached.

4. Access to streams and rivers from county roads and bridges is subject to the valid exercise of the county commission’s police power and its statutory power to manage county roads.

5. Access to streams and rivers from county roads and bridges created by prescription is dependent upon the uses of the road during the prescriptive period.