Courtesy of Bruce Farling, executive director, Montana TU
Recent Montana Supreme Court decision on Ruby River Bridge Access
The Montana Supreme Court issued an opinion January 16, 2014, in the long running legal dispute created by Atlanta media mogul Jim Kennedys challenges of recreational access from bridges over the Ruby River. The recent decision affected two court actions: 1.) An appeal brought by the Public Land and Water Access Association (PLWA and formerly known as PLAA) of a lower court decision regarding the nature of the prescriptive easement on the county road/bridge at Seyler Lane; and, 2.) A cross-appeal filed by Kennedy challenging a previous lower court ruling that affirmed recreational access as being legal within a recorded easement on Lewis Lane.
Montana TU filed a separate amicus brief bolstering PLWAs arguments for access.
The opinion overturning the Seyler Lane decision and denying the cross-appeal affecting Lewis Lane is very strong. In the Seyler Lane case the lower court had made the unprecedented ruling that there are two prescriptive easements there, one for the county that is wider than the bridge, but which only allows access to the county for purposes of maintaining the bridge; and another that is only as wide as the roadway, which is for the public, but only for travel across the bridge. (Simply put for those not familiar with road easements, prescriptive easements are established through continuous public use along a travelway that occurs over time without either the explicit permission or opposition from the landowner). The lower court further ruled that in no case could continuous recreational use be the basis for establishing a prescriptive easement. The Supreme Court rejected these findings by a 5-2 vote.
In the case of Lewis Lane, Kennedy argued that the easement there could not be used for access to the river because Montana stream access law is unconstitutional, supposedly because it is a taking of private property without just compensation. Ignoring settled law that says because the public owns the water it has a right to use it for recreational purposes, Kennedy claimed the public couldnt have access from a bridge to the river because he owns the riverbed. He claimed only he has the right to use the river. By a 7-0 margin, the high court rejected Kennedys claims. The court pointed out that our stream access law is settled law (having been affirmed by the Montana Supreme Court and rejected for review by the U.S. Supreme Court in previous cases). The justices noted, among other things, that Kennedy purchased his property after the stream access law was already in place, and therefore something had not been taken from him.
The basic outcome is this, If there is a public easement on a county bridge, whether its through a deed, petition or prescriptive, the public can use that easement to access the stream, provided it is physically possible to reach the area below the high water mark from within the easement. No more Keep Out signs.
Importantly, the ruling also affirms the bridge access bill, while clarifying how prescriptive easements should be treated, that Montana TU worked to pass in the 2009 Legislature. The ruling does not change that legislations intent to ensure that when landowners need to build fencing to constrain livestock within bridge easements, the public and landowner will work together to find mutually agreeable approaches to accommodate access and landowner needs.
One last note, a recent opinion piece signed by Sen. Debby Barrett (R Dillon) and published in Montana newspapers decries the recent Ruby bridge ruling as unconstitutional.