Since the PLWA Seyler Lane Bridge case against Madison County and James Cox Kennedy was finalized this last fall, we thought it time to get with FWP about the bridge access situation. After contacting FWP Director Martha Williams (thanks to FWP for a quick response), a meeting was set up for May 4th.
In attendance were: FWP – Region 3 Supervisor Sam Sheppard, Ray Heagney (Fishing Access Site Manager Region 3), Matt Jaeger (Region 3 Fisheries biologist) and Bill Schenk (FWP legal counsel from Helena), Wardens Ryan Picken and Coy Kline; Roy Morris for TU; Harold Johns for Skyline; and PLWA members Tony Schoonen, Kathryn QannaYahu and local members Howard Chrest and Mark Savinski.
Mark pointed put that it has been close to 15 years ongoing, the public has waited long enough, access needed to be restored.
Seyler Lane Bridge
Montana Code Annotated 7-14-2107 Acquisition of right-of-way, was also mentioned in reference to the Supreme Court Case and the county road easement, “(3) By taking or accepting interests in real property for county roads, the public acquires only the right-of-way and the incidents necessary to enjoying and maintaining it.”
MCA 23-2-312 – Access to surface waters by public bridge or county road right-of-way was mentioned. “(1) A person may gain access to surface waters for recreational use by using: (a) a public bridge, its right-of-way, and its abutments; and (b) a county road right-of-way. (2) When accessing surface waters pursuant to subsection (1), a person shall stay within the road or bridge right-of-way. Absent definition in an easement or deed to the contrary, the width of a bridge right-of-way is the same width as the right-of-way of the road to which the bridge is attached.”
Concerning District Court Judge Tucker’s final ruling from Sept. 2016 DV 29-04-43, “The total width which is necessary for use, maintenance and enjoyment of Seyler Lane including five feet upstream and downstream from the end of each of the bridge abutments at the sections noted below is as follows: 47.5 feet.”
The next course of discussion involved Stream Access Law, 23-2-312 , “Access to surface waters by public bridge or county road right-of-way. (1) A person may gain access to surface waters for recreational use by using:(a) a public bridge, its right-of-way, and its abutments; and (b) a county road right-of-way. (2) When accessing surface waters pursuant to subsection (1), a person shall stay within the road or bridge right-of-way. Absent definition in an easement or deed to the contrary, the width of a bridge right-of-way is the same width as the right-of-way of the road to which the bridge is attached.”
Since there is landowner fencing in place, that involved 23-2-313, “Fencing for livestock control and public passage — negotiation — costs. (1) At county road bridges for which public access is authorized pursuant to 23-2-312, each fence attached to or abutting a county road bridge edge, guardrail, or abutment for livestock control or for property management pursuant to 7-14-2134(4) must provide for public passage to surface waters for recreational use pursuant to this section. (2)(a) If a dispute arises regarding public passage pursuant to subsection (1), the department, pursuant to the department’s policy in 87-1-229 to work with private land managers to resolve and reduce user conflicts, shall negotiate with the affected landowner regarding the characteristics of an access feature of a legal fence for public passage and livestock control or property management. Examples of an access feature of a legal fence that provides public passage and livestock control or property management may include: (a variety of styles are mentioned specifically). (c) If the landowner and the department cannot reach agreement within 60 days after the department’s initial contact with the landowner for negotiation, the department shall provide the landowner with options for methods to provide public passage while controlling livestock or managing property. If the landowner does not choose one of the method options within 30 days after the options are offered, the department shall choose and then may install one of the method options. (3) The department, in cooperation with other interested parties, shall provide the materials, installation, and maintenance of any fence modifications necessary to provide public passage as required by this section. ”
- If a dispute arises (we all agreed one existed)
- FWP will then work with the private landowners (James Cox Kennedy for Seyler Lane and Morris Land and Cattle & Kennedy for Lewis Lane). The first contact begins the 60 day countdown. Everyone agreed FWP would first make personal contact with the landowners to have a conversation instead of lawyer to lawyer, then they will receive an official letter, which Bill Schenk would help draft, this would kick in the 60 days. The landowner meeting was held on May 19th, beginning the 60 days.
- If the landowners do not reach an agreement with FWP within the 60 days on fencing which will facilitate public passage…
- FWP will then provide options. If the landowners do not choose within 30 days, FWP will choose and install one of the options.
- At the appropriate time, Ray will get the utility locates done, they are good for 30 days.
- Basically, it was thrown out that the public access should be available by Sept.