Seyler Bridge Easement – More Than Just Recreation
Update – Kennedy’s attorney requested a postponement of the September 21 hearing. A future hearing date has yet to be determined.
It has been over a decade that PLWA (formerly known as PLAAI) has been involved in a lawsuit over public access to the Ruby River from Seyler Lane and the Seyler Bridge, a county road right-of-way in Madison County. In January 2014, the Montana Supreme Court reaffirmed Montana’s Stream Access Law, clarifying that the public may use the entirety of the public prescriptive easement right-of-way for all lawful public purposes. It also remanded the Ruby River action back to the District Court to determine the “definite width of a single, unified” public road right-of-way that was not determined at the previous trial. Per the Supreme Court, the width must include whatever land is “reasonably necessary” to maintain and support the established public road and bridge and the land that has historically been used by the public. This was a great victory for PLWA and the public.
Previously in the lawsuit, when the District Court initially determined that Madison County held a wider and independent “secondary easement” than the public’s right to the paved road, Madison County was all for “wider”. Madison County stated it had an “uncontroverted” prescriptive right to maintain “the subjacent and lateral support for Seyler Lane and Seyler Bridge, together with such additional land as is reasonable and necessary for maintenance and repair”, which includes the “bridge abutments, wing walls and bridge spans.” So what happened to “that” Madison County? Well, since the Supreme Court ruled the general public may use the entire right-of-way, wider is no longer better for Madison County.
In a briefing, Madison County stated it would rather obtain a license to do work outside the right-of-way, admitting that future maintenance work was a reasonable expectation. That doesn’t sound like the Supreme Courts guidance that the width must include whatever land is “reasonably necessary” to maintain and support the established public road and bridge right-of-way.
Most people think of “recreation” when they hear this access lawsuit brought up, but there is more to this story than just recreation, we’re talking saving taxpayers money and public servant safety. What fiscal conservative would object to that? And who would want our public servants taking unnecessary risks when serving the public?
Last August, PLWA even sought the assistance of Montana Attorney General, Tim Fox, and the Assistant Attorney General, Matthew Cochenour to intervene, taking over Madison County’s defense, since the duty of the State of Montana is the safety of the public on its roadways and bridges.
In June 2015, Madison County and Intervenor James C. Kennedy argued the already presented evidence was insufficient to determine the precise width of the easement, as required by the Supreme Court. They argued that PLWA must come forward with additional evidence. So PLWA sought two witnesses that testified at the 2012 trial, one of which had since retired from the Montana Department of Transportation. It was determined that Madison County and Kennedy should have limited additional time to name a rebuttal witness, so the June 15th hearing was continued until August 3, 2015.
During the hearing PLWA/PLAAI Attorneys, Devlan Geddes and Kyle Nelson, called Shane Escott to testify, offering exhibits which are admitted. Then they call Dan Gravage to testify, who testified in 2012 and is now retired from the MTDOT. Kennedy objects, having issues with him being an “Expert Witness.” It is determined that he can testify as a “Hybrid Witness.” A motion from Kennedy to strike Gravage’s construction testimony is denied. PLAAI attempts to call its 3rd witness, Barney Hallin, one of the original witnesses. A discussion of two witnesses per court order ensues. Kennedys attorney said he had two witnesses, witnesses that had not been deposed by PLWA yet. So the court determined a continuance of the proceedings, providing time for the deposition of Kennedys two witnesses.
The next hearing will be September 21, 2015, at 9:30 A. M., at the Madison County Courthouse in Virginia City, where only 3 witnesses will be allowed to testify.
The Seyler Bridge will not last forever. At some point it is going to require repairs or replacement. This court case will decide the “definite width of a single, unified” public road right-of-way. Hopefully, the Court will find the entire 60 foot full width proposed by PLWA, which would not only be “reasonably necessary” to maintain and support the established public road and bridge right-of-way, but would also allow the general public to access the Ruby River. Yes, that includes the recreation part.
Wouldn’t it be better for public safety and to truly determine what is a reasonable width, rather than play games with public safety?