Stream access ruling brings clarity

By Roberta Stauffer - 10/05/2008

Neither side got everything it wanted in the latest court ruling on stream access. We'll take that as a sign of a fair and balanced interpretation of the law.

The ruling handed down last week by District Judge Loren Tucker clarifies both public and private rights around county bridge rights of ways. As a result, it should set important statewide precedent for both stream access and landowner rights.

The ruling pertained to two Madison County bridges over the Ruby River. The Public Lands Access Association sued the county four years ago in an effort to safeguard public access to the stream from public bridge rights of way.

Ruby Valley landowner James Kennedy's fences sparked the lawsuit, since they had interfered with public's ability to access the Ruby.

Kennedy and others also formally intervened in the case, arguing that a bridge right of way was only as wide the bridge itself, so the fences were actually on private property.

"No one seriously argues that the public has a right to cross private property," Tucker said in his ruling. "This argument need not be analyzed." The only issue at hand is "the width of the right of way at the location where a bridge exists upon a county road," the judge wrote.

And that width is 60 feet, no matter how wide the bridge itself may be, according to the judge. The law allows bridges to be narrower, but the right of way is automatically 60 feet "unless otherwise ordered by the board of county commissioners." Citizens actually have overlapping access rights to some of this land around bridges because of Montana's stream access law, the judge wrote.

So there you have it: Floaters and anglers are well within their rights to park alongside a county bridge and make their way down to the river.

But Tucker ruled that it's also OK for landowners to put up fences in that right of way and attach them to bridges, just as long as they don't keep people from reaching the river.

PLAA had wanted fences to be labeled as illegal encroachments, but the judge rightly recognized the time-honored tradition of ranchers being allowed to fence livestock in, as long as the fences were approved by their county commissioners.

And if this ruling sounds strangely familiar, that's because it is. Madison County Commissioner Dave Schulz told Standard reporter Nick Gevock that it sounded "an awful lot" like the county's original solution to this conflict way back when. It's also similar in spirit to Senate Bill 78, the compromise bill which failed during the 2007 Legislature.

It'll be interesting to see if any appeals follow this ruling. We hope the intervening parties let it stand, for the law seems clear.

But if they continue to fight, we'll look to the 2009 Legislature to back up Tucker's judgment with another attempt at a fair compromise bill on this important issue.