A sportsmen’s group has appealed an April ruling by a judge that limits public access to streams from bridges on roads with historic prescriptive easements.
That same ruling, by Madison County District Judge Loren Tucker, has also prompted a fresh challenge to a law passed three years ago by the Legislature that guaranteed access to streams from bridges on most county roads.
The Public Lands Access Association filed its appeal this week in Virginia City district court of an April ruling by Tucker in a case that has dragged on for eight years. Tucker found that the public doesn’t have the right to access the Ruby River from Seyler Lane, which has a prescriptive easement on it after decades of use by public use. The area is near Twin Bridges, about 50 miles southeast of Butte.
Devlan Geddes, a Bozeman lawyer representing the PLAA, said they’re disappointed in the ruling but are ready to go to the state Supreme Court.
“We’re optimistic about our chances on appeal,” he said.
The ruling is the latest salvo in a bitter fight between sportsmen and James Cox Kennedy, a multi-millionaire media mogul from Atlanta who owns a ranch south of Twin Bridges in the Ruby Valley.
The PLAA sued Madison County in 2004 after Kennedy attached fences to two bridges over the Ruby River on his land. The group contended the county was responsible to maintain public access from county roads and shouldn’t allow fences to impede that access. Kennedy intervened in the case on behalf of the county.
Sportsmen contended the fencing was intended to keep them out and had never been there historically.
Kennedy asserted the fences were meant to keep in livestock and protect him from liability if someone was injured while accessing the river from the steep slope off the bridge.
The lawsuit languished in district court for years. But in 2008, Tucker ruled in summary judgment that the public does have a right to access streams from two bridges in the case, which are on county roads, as long as they stay within the right of way.
But the issue of Seyler Lane, a road by prescriptive easement, was never settled.
The 2009 Legislature codified Tucker’s ruling on county roads into law when it passed a statute guaranteeing access from such bridges at selected points, such as gates or stiles.
The Seyler Lane portion of the case was heard in January. Tucker ruled in April said the PLAA did not establish access to the river for recreation as a consistent, historic use at Seyler Lane. He further said the public can use the paved roadway and the county has the right to maintain it, but the public’s right stops there.
“Even if the public were allowed to travel on the areas the government has need for maintenance and repair, such a theory is insufficient to allow the public to reach the Ruby River,” Tucker said in court records.
Colleen Dowdall, a Missoula lawyer helping represent Kennedy, refused to comment on the ruling.
Susan Swimley, a Bozeman lawyer representing Madison County, said the county has stayed out of the access fight, but is glad to have kept access to plow and maintain Seyler Lane.
Kennedy also filed a cross appeal of Tucker’s 2008 ruling that offered public access from county roads. And the appeal left open whether the law passed by the Legislature complies with the Montana Constitution.
A notice of the cross appeal was sent to the state Supreme Court and Montana Attorney General Steve Bullock that said it is a challenge of the constitutionality of any act passed by the Legislature, which could affect the 2009 law.
— Reporter Nick Gevock may be reached at firstname.lastname@example.org