Montana Stream Access on Trial Again
By: Joshua Bergan
Here we go again. The notorious “rich out-of-staters” who have put Montana’s fabled stream access on trial over the past few years are fighting to uphold a ruling from January 2012 by a Madison County Montana District Judge. That ruling states that a historic prescriptive easement (basically public use of a road, without permission of the landowner for a five-year period – as opposed to the standard public county road that was created to be public right-of-way ) on the lower Ruby River may not be used for recreational activities. A Montana non-profit citizen group, the Public Land/Water Access Association (PLWA), has appealed the lower court ruling to the state supreme court, and a hearing has been scheduled for April 29 on the campus of Montana State University in Bozeman. The unusual location is due to the expected turnout.
The 2012 ruling was that a right-of-way easement on Seyler Lane over the Ruby south of Twin Bridges, Mont. applies just to the roadway surface, not the borrow pits or bridge abutments, or the traditional 60 foot easement, disallowing access to the river. The property’s owner, Atlanta media magnate James Cox Kennedy, has brought litigation regarding stream access via the bridges on his property for years, and this is his latest attempt at foiling Montana stream access in favor of private property and its owners.
This district-court ruling applies only to the Seyler Lane bridge (each road or bridge has to be ruled individually, but this sets a troublesome precedent).
PLWA, along with most of Montana’s anglers, believes that the right-of-way is the full fencepost-to-fencepost width and that recreational use is allowed just like any other legal use. From their website: “The opposing attorneys argue that the scope of the easement is just for ordinary vehicular travel for a 16-foot right of way. PLWA contends that the scope of use on the easement includes all legal uses such as herding cattle, road maintenance involving the borrow pit, recreational use, etc., all of which require much more than 16 feet… The other side contends that the width of the road is the ‘travel way’ or the 16 or so feet of the hard surface – unlike county roads which have a 60 foot right of way. PLWA contends that it is at least 40 feet based on historical use during the prescriptive period. PLWA also contends that whatever the width of the prescriptive road, it does not narrow at a bridge.” If the right-of-way covers only the road surface on prescriptive easements, children waiting for a school bus or motorists changing a flat tire would be trespassing.
PLWA previously won a similar case regarding the Ruby River’s Lewis Lane bridge (the next bridge upstream on Kennedy’s property) that upheld legal public access via the bridge, stating that the road right-of-way and the river right-of-way overlap. Lewis Lane, however, is a dedicated county road.
In this case, Kennedy has also cross-appealed; stating that allowing access to the river is an unconstitutional infraction of his property rights. His appeal is a direct attack on two Montana statutes – the full 1985 stream-access law, and the 2009 law that upheld that the public may access rivers from public-road bridges.
The esoteric nature of these cases can sometimes serve as a road-block for public interest and support. In a nutshell, big-money interests are trying to piece-meal away the public’s long-held right to access Montana’s streams, one bridge at a time. Shooting down the 2012 district-court ruling by winning this appeal would go a long ways to thwart these attempts. For now.
Montana Trout Unlimited has filed a friend-of-the-court amicus brief supporting PLWA, while the United Property Owners of Montana and the Property and Environmental Research Center have filed briefs supporting the opposition.
The public can support PLWA on this case and multiple public-access cases statewide, by becoming a member for $20 annually (www.plwa.org). It has also set up the “Stream access defense fund” specifically to defend Montana’s fabled law against the big-money opposition. All funds donated to PLWA between now and June will default to the fund; after that a note in the memo section of your check can indicate that you want the money directed to the funds.
Similar or worse stream-access restrictions have recently been imposed in Utah and Virginia. Thinking they cannot be in Montana, as well, is a mistake.
To support PLWA and stream access in Montana, the public is encouraged to attend the April 29th hearing at 9:30 a.m. in the Strand Union Building, Ballroom A on the campus of Montana State University in Bozeman. The more the merrier and the future of stream access in Montana may depend on it.