Draft ruling favors anglers, boaters in right-of-way dispute

HELENA - Anglers and boaters can use public bridge crossings to get access to streams running through private property, according to a draft attorney general's opinion prepared by his staff for public comment.

But the preliminary conclusion said such access is not without limits.

People making use of bridges to reach water running below must stay within the public road easement and county commissioners have some authority to restrict access to ensure safety and control parking near bridges, the draft said.

Also, it said some roads and bridges not historically used as access points for streams may not provide avenues for recreationists today.

The draft opinion has been distributed to interested parties for comment and could be revised before being signed by Attorney General Joe Mazurek. Once final, the opinion will have the force of law unless overturned by a court or a law change.

The attorney general's position on public access from bridges was requested by Madison County Attorney Robert Zenker and the Department of Fish, Wildlife and Parks.

They wanted guidance in dealing with a long-running dispute in Madison County over access to the Ruby River. The Ruby, a premier trout stream, runs almost entirely through private land so most of its length is closed to anglers. Most bridges on public roads are tightly fenced and posted against trespassing off the road to reach the water.

Madison County commissioners passed an ordinance in 1995 saying adjacent landowners could connect fences to bridges only if they did it in a way that still allowed public access to the river.

The county repealed the law when it was challenged in court by landowners. They have asked that game wardens and sheriff's deputies be told to cite as trespassers anyone using the area around bridges to get to the river.

Zenker and the state fish and game agency want Mazurek to tell them whether such tickets should be written. The draft opinion said no.

As written by Mazurek's staff, the document said the public has a right to use public highways "for any manner or for any purpose consistent with or reasonably incidental to public travel" and that includes using the rights of way created by county roads to access rivers and streams.

Bridges are as much public highways as the county roads to which they are attached, and they offer the same access to waterways as do the roads, the opinion said.

A bridge is actually an intersection of two public rights of way - a road and river - and it would be inconsistent with the public's right of passage on both to conclude such a crossing does not permit access to the water, the draft said.

However, it said recreationists must stay within the easement created by a county road or bridge - usually 60 feet - in moving to a stream.

The opinion also said county commissioners can pass ordinances dealing with safety or parking concerns, but that authority is limited if it is used to restrict access to Montana waterways.

County roads or bridges created by prescription - that is, through a history of open and continuous public use over years, with the owner's knowledge - can be used for stream access only if that was one of the uses during the prescriptive period, the ruling said.

But, given Montana's history of fishing and other uses of waterways, it is unlikely any roads or bridges were not put to such use in the past, the draft said.

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