As members are aware, PLWA has appealed an April ruling by Madison County District Judge Loren Tucker that limits stream access from bridges on roads with historic prescriptive easements. (A prescriptive easement is one created by continuous public use.) In that ruling , the lower court said that the public doesn’t have the right of recreational access to the Ruby River from the Seyler Lane bridge – a bridge on an agreed upon prescriptive road . (The Ruby is a classic trout stream flowing north near Twin Bridges, Montana.) Essentially, he ruled that the public prescriptive right-of-way for most uses was just for the roadway surface – not the borrow pits or bridge abutments, and that prescriptive use did not include recreational use. PLWA believes that the right-of-way is the full 60 feet and that recreational use is allowed just like any other legal use. Based on consultations with PLWA lawyer Devlan Geddes of the Goetz law firm, we are optimistic about chances on appeal.
However, that same case has also prompted a challenge to two existing Montana statutes – the 2009 bridge access law and the Montana stream access law which has been around since 1985. A portion of the challenge is in the form of a “cross appeal” by the associated landowner, James Cox Kennedy, a billionaire media mogul from Atlanta. In that appeal he argues that the stream access law and the law allowing recreational stream access at county road bridges are an unconstitutional “taking” of his property. He further argues, along the lines of Tucker’s decision, that recreational use is not included in public prescriptive road easements. It is clear he will not be happy until our bridge and stream access laws are gone.
Montana is lucky to enjoy the best stream access in the U.S. We cannot stand by and see it eroded by this case or any other case. This is turning out to be a high profile case. Montana Trout Unlimited recognizes this and they have filed a friend-of-the-court amicus brief on our side, The opposition has also recognized this and United Property Owners of Montana (UPOM) and the Property and Environment Research Center (PERC) have both filed amicus briefs supporting Kennedy. (Just Google them to see what they are all about. )
In a somewhat unusual action, the court will hear this case in the Strand Union Ballroom of Montana State University Bozeman on April 29. The introduction to oral argument will start at 9:30 A M and will conclude that morning. Attendance by a large number of access supporters would be more than useful. You will learn a lot and it will show the court strong public interest.