Judge rules public can access rivers from county bridges
By Nick Gevock - Montana Standard - 10/03/08
BUTTE — A judge ruled this week that the public has the right to get to rivers from county bridges, but also determined landowners can attach fences to bridges in a split decision on a 4-year-old case out of Madison County.District Judge Loren Tucker said in a case filed by the nonprofit Public Lands Access Association against Madison County that county road rights of way remain 60 feet wide across rivers. That means the public can use bridges to get to public waters under Montana’s stream access law.James Kennedy, a Ruby Valley landowner and billionaire heir to a media fortune from Atlanta, Ga., an intervener in the case, and whose fences prompted the lawsuit, had argued that county rights of way narrow down to the actual bridge surface. He contended the land below the bridges was private property and therefore the public was trespassing when it crossed fences built up to a bridge.Tucker soundly rejected that.“His implicit argument is that a county road may not be utilized in the vicinity of water,” Tucker said. “That argument is unsupported by authority or by logic.”John Gibson, PLAA president, called the decision a major victory for Montanans.
= 1209358800) && (nAdsysTime = 1221109200) && (nAdsysTime
“It destroys some of the arguments that these people have made regarding the width of the right of way,” he said. “The judge has definitely proven that access to the stream is a legal activity.”The ruling is the latest salvo in a legal fight that has dragged on for longer than four years.PLAA filed the lawsuit against Madison County in May 2004. The group blamed officials for allowing Kennedy to attach fences to bridges that were clearly meant to keep people from getting to the river.Kennedy sued the county as well after it passed a policy allowing the fences in return for an access at each bridge. He later dropped that suit and the county rescinded its policy.But Kennedy, Hamilton Ranches, Inc. and the Montana Stockgrowers’ Association intervened in defense of the county in the PLAA case.Kennedy argued that not every bridge is safe for the public to access and landowners could be held liable if someone was injured while trying to get to a stream. His lawyer in the case, Lance Lovell of Billings, could not be reached for comment Thursday, nor could a representative from the stockgrowers.Madison County Commissioner Dave Schulz said he had only briefly read the ruling. But he added Tucker’s compromise sounded familiar to county officials.“The result of Judge Tucker’s findings remind me an awful lot of Madison County’s initial proposal to guarantee access from bridges and still allow fences in the right of way,” he said.Tucker rejected PLAA’s assertion that a fence is an encroachment. In doing so, Tucker cited a deposition from Tony Schoonen, a group member from Butte, who said that new wooden fences put up by Kennedy did not impede access to the river.His ruling applied to Duncan District Road and Lewis Lane, two county roads historically established by prescriptive easement, but left out Seyler Lane because it hasn’t been established how it was created.Devlan Geddes, a Bozeman lawyer representing PLAA, said the issue with Seyler Lane still needs to be decided in court. Yet, he said the decision on the other two roads is an important precedent that reaffirms and clarifies a 2000 Montana attorney general’s opinion that said rivers could be accessed from public bridges.Allen Chronister, a Helena lawyer representing Madison County, argued in the case that if fences were encroachments, every driveway, railroad and utility pole would be as well. He said from the county’s perspective it was a good decision.“My goal for the county was to try to preserve their right to be able to allow fencing if that was deemed in the public’s interest,” he said. “It was a good result for the issues that the county was facing.”
Josh and I tracked this one down in the fresh snow. Got to within thiry yards and saw his antlers sticking up out of a pile of blowdown....thought he was bedded. I tried to get Josh in for the shot while I circled to cow call and hopefully stand him up. He was already up and wound up walking downhill towards me. Josh started gesturing frantically that he was going downhill and I had about a second and a half to shoot before he winded me. 
The packout was extemely fun. Not too awful far, but uphill through my beloved Idaho brush...a little wet snow on the brush really added to the experience.
All in all a great week. Got into more elk but never did find a bull for Josh despite many miles of ridgerunning and brush busting. 
