Stream access proponents are hailing a judge’s Wednesday ruling as a victory for public access at a long-contested Madison County bridge.
District Court Judge Loren Tucker determined that the public easement for the Seyler Lane bridge across the Ruby River extends 5 feet past the bridge abutments.
“This is a win because people can get to the water,” said John Gibson, president of the Public Land/Water Access Association.
PLWAA’s opponents in the case seemed less certain of the judge’s ruling.
“It’s not clear if that grants public access or not,” said Reed Watson of the Bozeman-based Property and Environment Research Center, which had sided with Madison County in the dispute against PLWAA.
Also intervening on the county’s side were the Montana Stockgrowers Association and James Cox Kennedy, the billionaire chairman of Cox Enterprises.
Whether the ruling ends a 12-year-long court fight is unknown, but for now the PLWAA is savoring the victory.
“If we hadn’t fought this, I’m afraid we’d be looking at ‘No Trespassing’ signs and electric fences across the state,” Gibson said. “Somebody had to stop these people.”
3 for 3?
The Ruby River is a small stream that starts in the Gravelly and Snowcrest mountains of southwestern Montana, running about 100 miles north to its confluence with the Beaverhead just south of Twin Bridges. Seyler Lane is one of the last roads across the Ruby before it reaches the Beaverhead.
This is the third access case that PLWAA has fought in the county on three different bridges over the Ruby River. The other two bridges were at Duncan and Lewis lanes.
All of the cases were instigated when Kennedy tried to block public access at the bridges. PLWAA sued the county to force Kennedy to provide public access and remove fences blocking entrance to the river. If this final bridge case goes in the win column then the PLWAA has won all three.
“This one shouldn’t have gotten this far and it only did because of the resources of the landowner,” said Bruce Farling, president of Montana Trout Unlimited, which supported PLWAA in the case.
Susan Swimley, a Bozeman attorney who represented Madison County in the case, said she’s “glad to have the ruling. It will move the case forward.”
She has yet to meet with the Madison County Commissioners or the attorneys who filed friend of the court briefs supporting the county’s previous contention that a much narrower easement was fine at the Seyler Lane bridge.
Madison County Commissioner Ron Nye, who lives off Seyler Lane, said he hopes the issue is settled, but has his doubts.
“I wish we weren’t involved in (the dispute),” he said. “We’re spending money because we have to because we have the bridge.”
Swimley said she plans to ask Judge Tucker for a clarification on the ruling since, in her reading, the court order and an attached map aren’t in agreement. Points mentioned in the ruling do not correspond to ones on the map showing a clear route down to the river, she explained.
Kyle Nelson, a Bozeman attorney who represented PLWAA through the Goetz law firm, said his reading of the ruling seems clear on the main point.
“It confirms that Montanans may access the river from the Seyler Lane right of way,” he said.
Stream access has long been a contentious issue between recreationists, like boaters and anglers, and private landowners across the West. Under Montana law all streams and their beds are held in public trust, meaning that the public has the right to use those streams up to the high water mark.
Montana’s Stream Access Law guarantees public access to streams and rivers from county road right of ways at bridge crossings. But in the Seyler Lane case the Madison County commissioners were willing to confine that public right of way to the bridge’s width, making it difficult if not impossible for the public to reach the Ruby River.
Normally, county roads have a right of way of 60 feet, a public easement that allows for maintenance of the road. But Seyler Lane had no such recorded easement, even though the county had built the bridge.
Kennedy, who in the 1990s began purchasing hundreds of acres of property along the Ruby River, including around the Seyler Lane bridge, closed off the bridge to public access prompting PLWAA’s lawsuit. In fighting PLWAA, Kennedy’s attorney has gone so far as to challenge the state’s stream access law and constitution, arguing that they are a takings of private property.
PLWAA had contended that the public had a prescriptive easement across the bridge because of continual public use.
“It’s for the public, that’s who we were working for,” said Gibson, of the PLWAA.
In 2014 the Montana Supreme Court agreed and told Judge Tucker to figure out how wide the public easement should be.
That led to Wednesday’s ruling where Tucker said: “Madison County and the State of Montana via their agents have traveled upon a strip of ground between the abutments and the high water marks of the river extending an average of approximately 5 feet upstream and downstream from the ends of the bridge abutments. These distances inform the court of that which is reasonably necessary for use, maintenance and enjoyment.”
“We needed this precedent where the easements aren’t recorded,” said Farling, of Montana Trout Unlimited.
Watson, of PERC, sees the issue a bit differently.
“It’s kind of a sad state of affairs that we’re getting down to such a technical analysis of a bridge when really all we’re trying to answer is an issue of access,” he said.