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President Gibson on HB190WHO MADE IT HAPPEN ?
The Ruby River Court Decision and The Passage of HB 190(Bridge Access )
I have followed the subject of access to streams at bridges since the Attorney General issued his positive opinion in the year 2,000.Everyone knew that legislation would have to follow to deal with the exact rules and regulations necessary to make this a reality.
Only a few sportsmen believed that there would be a full scale challenge to the AG opinion in the legislature since such a formal AG opinion has the force of law until (or if ) it is successfully challenge by new legislation or a court decision.
Proposed legislation ran into trouble the first time during the 2005 session. Opponents argued several points then as they continued to do thru two more legislative efforts.
First and foremost among there arguments were:
1. Easements on county roads were created for transportation purposes. Access to the stream does not fall under the definition of transportation.
2. Road easements narrowed (bottlenecked) at bridges to the width of the bridge proper. This resulted in a slice of private land between the road easement and the stream below high water mark. Therefore, no one could not enter the stream without trespassing on private property . The Stream access law clearly states that a person may not trespass on private land to reach the public easement under high water mark on streams.
There were other arguments to be sure but the lawyers for the opposition really hung their hat on these two claims. With them, they created enough doubt so that legislators who supported their cause could vote against bridge access legislation with a certain amount of immunity. In other words, they provided cover that resulted in a party line vote that defeated Bridge Access each session.
Now, fast forward to Sept 2008. Judge Loren Tucker issued Summary Judgments on the PLWA lawsuit regarding access at three bridges on the Ruby River in Madison County.
Here are his findings
1. Two of the three roads are county roads. On these two roads the easement or right of way is 60 feet in width.
2. The easement continues to hold the width of 60 feet as it crosses the river.
3. The public may conduct any legal activity within the 60 foot easement including access to the stream.
4. The third road, Seylor Lane, is not a county road will have to go to trial to determine how it relates to stream access.
The point here is that the Judge destroyed the opposition’s main arguments completely. Since the Bridge Access ruling by the Attorney General and HB 190 only apply to county roads there was nothing the lawyers for the opposition to argue or for legislators to use for cover.. Instead, the lawyers changed strategy and tried to prevent any ruling on roads other than formal county roads.
Judge Tucker also ruled that fences on the easement are not encroachments since they are authorized by the County Commissioners. Our lawsuit challenged these fences because many of them were constructed to keep people our rather that livestock in. We got what we wanted because if fences are authorized by the county commissioners they must allow for stream access as directed by the judge.
My point here is that as much as we appreciate the hard work by various groups including Montana Wildlife Federation, Trout Unlimited and especially Representative Kendall Van Dyke, the summary judgment decisions by Judge Tucker went a very long way in resolving the Bridge Access issue before the legislature convened .