Welded steel fencing blocks legal public access to the Jefferson River at the Kountz bridge near Whitehall. Photo by Lane Coulston of the Jefferson River Canoe Trail Association. (Not part of the Montana Standard articles.)

AG opinion: Public can fish Ruby River from bridge
by the Associated Press, 06/06/2000

HELENA (AP) -- The recreating public generally has access to streams and rivers from county roads and bridges, so long as they stay within the road or bridge easement, Attorney General Joe Mazurek said Friday.

The formal opinion reflects conclusions expressed in a draft prepared in March. Friday's opinion points out that, for more than a century, the Montana Supreme Court has consistently applied a liberal interpreta tion of public highway easements created by deed or petition, allowing `` for the possibility of changing and expanding uses to keep pace with the changes and needs of the public.''

`` Montana's Constitution guarantees the public the right to use all of our state's waters for recreation,'' Mazurek noted. `` Our legal research revealed that bridges on county roads are basically the intersection between two public rights-of-way: the road and the stream or river. When the public has the legal right to use both, it wouldn't make any sense to conclude that people can't use the point where they intersect.'

The opinion was requested by Department of Fish, Wildlife and Parks director Patrick Graham and Madison County Attorney Robert Zenker. They requested the opinion to resolve a conflict between the recreating public and landowners along the Ruby River in Madison County.

Landowners in the area believed people wanting to fish and float on the Ruby did not have the right to gain access to streams from county bridges, and had asked state game wardens and local law enforcement officers to cite the recreationists for trespassing.

`` Obviously, with this right comes the responsibility to respect the landowner's property,'' Mazurek added. `` The right of access is limited to the road or bridge right-of-way. It does not allow the public to use other private property to reach the stream. People fishing and floating through private property need to be especially courteous and make sure they don't trespass, let their dogs run loose or leave garbage behind.''

Mazurek also said that county commissioners have the authority to control the use of roads and bridges for stream access in relation to safety, parking or other legitimate governmental concerns.

An attorney general's opinion carries the weight of law unless a court overturns it or the Legislature modifies the laws involved.

Used with permission of the Montana Standard.

Fishing access battle continues
by Perry Backus of the Montana Standard, 01/12/2004

VIRGINIA CITY - A sportsmen group wants Madison County to tell landowners to remove the barbed wire, orange paint and the "no trespassing" signs being used to keep people from accessing rivers and streams along county bridges.

The sportsmen say that a state attorney general's ruling in May 2000 gives the county the power to do just that.

But Madison County Attorney Bob Zenker said that ruling does no such thing. He said the county doesn't have an obligation to get involved in what's essentially a private dispute.

The controversy has a long history in Madison County. In 1995, the county commission enacted an ordinance that regulated fences in county bridge rights of way. The ordinance forbade landowners to build fences that were designed to hamper human activity after landowners built elaborate barbed wire fences that ran up to bridge abutments to keep out anglers.

Originally, the ordinance was designed to ensure that county crews would be able to access bridge rights of way, especially during high water years. But bridge rights of ways have been long used by anglers to access rivers, where they can then legally fish under the state's stream access law as long as they stay within the high water marks.

In 1996, the county was sued by Madison County landowners who said the ordinance was a taking of private property without compensation. The commission repealed the ordinance in 1997 and the Montana Department of Fish, Wildlife and Parks asked the state attorney general's office for an opinion on the issue.

In May 2000, Attorney General Joe Mazurek ruled the recreating public generally has access to streams and river from county roads and bridges as long as they stayed within the road or bridge easement.

"The right of access is limited to the road or bridge right of way," Mazurek said in his ruling. "It does not allow the public to use other private property to reach the stream. People fishing and floating through private property need to be especially courteous and make sure they don't trespass, let their dogs run loose or leave garbage behind.''

An attorney general's opinion carries the weight of law unless a court overturns it or the Legislature modifies the laws. Since that opinion, members of the Public Lands-Water Access Association say landowners haven't removed obstructions along Madison County bridges and others have erected new ones.

The association and its lawyer, James Goetz of Bozeman, have written several letters to the Madison County Commission asking it have "illegal barriers" removed from public right-of-ways.

"(The Public Lands-Water Access Association) has received numerous complaints from the public about illegally posted bridges and fences that trespass with Madison County's bridge right-of-ways," Goetz said in a letter dated Nov. 26, 2003. "It is (the Public Lands-Water Access Association's) position that such illegally posted barriers unreasonably prohibit the recreating public from exercising their right to access streams and rivers as expressed by the Attorney General's ruling."

"I think it's a blatant attempt to ignore the attorney general's ruling," said Tony Schoonen of Butte, treasurer of Public Lands-Water Access Association. "It looks as if the only thing left is to file a lawsuit against individual landowners who are locking out potential fishermen from a public resource."

"We're disappointed that they (the county) can't do anything or won't do anything," Schoonen said. "It's unfortunate the new landowners and developers are flaunting the law for personal gain."

"Every recreationist doesn't own a boat so if we cut off access within public rights of way, the biggest portion of our stream access law will be dissected. This will not happen," Schoonen said. "All of us have paid our gasoline taxes as well as state and federal taxes, which make up the majority of funding for county and highway road maintenance. We should be rewarded, not punished, for fighting blocked access within public rights of way."

Zenker said the county has to view the issue within the scope of its constitutional limits.

"I don't agree with the sportsmen's assessment that government can or should do anything to intervene," said Zenker. "We don't have the obligation or the authority. We can't do things on our own."

The attorney general's opinion does not create an obligation for county government to intervene in the dispute between sportsmen groups and private landowners, said Zenker. To do so could put the county in a position of infringing on the rights of private landowners, he said.

The attorney general's opinion does allow the county to enact an ordinance under its "police powers," but Zenker said the county is limited in its ability to enact legislation that would infringe on private property constitutional rights. Creating an ordinance that won't meet constitutional muster would only put the county in a position of being sued and having the ordinance overturned, he said.

"Essentially, this is a private dispute between individual sportsmen and individual landowners," he said. "It will require a civil remedy."

BREAKOUT: What the attorney general says ...

Montana Attorney General Joe Mazurek ruled in May 2000 that:

• Use of county road right-of-way to access streams and rivers is consistent with and reasonably incidental to the public's right to travel on county roads.
• A bridge and its abutments are a part of the public right highway, and are subject to the same public easement of passage as the highway to which they are attached. Therefore, recreationists can access streams and rivers by using the bridge, its right-of-way, and its abutments.
• A recreationist must stay within the road and bridge easement to access streams and rivers. Absent definition in the easement or deed to the contrary, the width of the bridge right-of-way easement is the same as the public highway to which it is attached.
• Access to streams and rivers from county roads and bridges is subject to the exercise of the county commission's police power. However, this power is not without limitation.
• Access to streams and rivers from county roads and bridges created by prescription is dependent upon the uses of the road during prescriptive period.

Used with permission of the Montana Standard.

The bridges of Madison County
By Gerard O'Brien, Editor, the Montana Standard - 01/22/2004

Madison County appears to be stepping away from its responsibility to both landowners and the public.

In 1995 the county enacted an ordinance that prohibited landowners from blocking access to the land and river just adjacent to the bridges. The idea was to enable county workers access to bridge rights of way. Some landowners had built elaborate barbed wire fences that prohibited any access at all, mainly to keep hunters and fishermen out and their cattle in.

But that set off another issue. Fishermen were using the bridges as an access point to the rivers. The public has long had a standing right to access rivers from bridge easements under the stream access law, which allows anglers to fish on any state stream as long as they remain within the high-water marks.

Madison county landowners sued, claiming it was an inappropriate taking of land, and, in 1997, the county commission repealed the law. But in May 2000, Attorney General Joe Mazurek issued an opinion - which has the force of law unless overturned in court - upholding the right of anglers to access the rivers along the bridge easements.

Members of the Public Lands-Water Access Association - based in Ramsay - have petitioned Madison County to force landowners to remove the access obstructions, which appear to be proliferating. Madison County Attorney Bob Zenker said the county has no obligation to get involved in what he termed a private dispute.

The attorney general's opinion does allow the county to enact an ordinance under its "police powers," but Zenker said the county is limited in its ability to enact legislation that would infringe on private property constitutional rights.

Creating an ordinance that won't meet constitutional muster would only put the county in a position of being sued and having the ordinance overturned, he said.

Wait a minute.

First, the county needed access for its county workers. What happened to that issue? Do they not need access anymore? Will the county mind when workers get hung up in barbed wire or injure themselves in some other way. What about an angler suing after he's hurt on the barbed wire. The county may have deeper pockets than a landowner.

Second, the county is inviting a lawsuit either way, anglers or landowners are going to balk no matter what the county does or does not do.

Why not take the lead in this issue, as responsible government leaders?

Why not bring the access people and the landowners together, draw up a design for gates that allow easy access, but keep the cattle in and minimize the damage that access brings.

And on the other side of the issue, fishermen tend to ignore the letter of the stream access law. Just ask a landowner.

Many complain that fishermen don't park in designated areas, pay no attention to access signs, vandalize fences and rarely stay within the high-water marks of a river. One fisherman trespassing to get from one prime fishing hole to another may not be cause for alarm. But hundreds flock to Madison County's blue ribbon streams. They cause erosion to land just as cattle do. They need to take responsibility for their actions and prove to landowners that the law can work.

One suggestion is for the fishing access groups to pony up the money for access gates; work with the landowners and do some self-policing. It will go a long way to resolving this issue fast, rather than through the courts.

And, it would be a shining example for the rest of the state if the county took the lead.

Used with permission of the Montana Standard.

Signs, electric fences spark access debate
Bridges of Madison County controversy heats up
by Perry Backus of the Montana Standard, 03/23/2004

VIRGINIA CITY - Standing in front of the Madison County Commission on Monday, Bill Holdorf of the Butte Skyline Sportsmen Association pointed to the photograph of a county bridge over the Ruby River wrapped in electric wire.

"I'm 78, and I have a bad hip ... there's no way that I'm going to be able to get down to that river," Holdorf said. "And there's definitely no way that I can get my raft down there."

One after another, a number of fishermen and floaters told the commission Monday that a few landowners along the Ruby River were stealing their right to access public waters.

Howard Chrest of Sheridan stands next to the Seyler Road bridge crossing the Ruby River. Sportsmen say a number of landowners along the river are illegally using electric fences and signs to keep people from accessing the river.

After about an hour of testimony, the commission seemed to agree that something needed to be done about the electric fence, orange paint and no trespassing signs inside the public road and bridge easements. At the same time, the commission told the 20 or so gathered at the Virginia City courthouse that ranchers needed to retain the ability to keep their livestock fenced in.

"There has to be some sense of reasonableness," said Commission Chairman Ted Coffman. "If the electric fence is just for keeping people out and not for keeping cows in, well, that doesn't make any sense."

The controversy over bridge right-of-ways has been brewing for a long time in Madison County.

Back in 1995, the county commission enacted an ordinance that regulated fences in county bridge right-of-ways. The ordinance forbade landowners to build fences that were designed to hamper human activity after some landowners constructed elaborate barbed wire fences that ran up to bridge abutments to keep out anglers.

Originally, the ordinance was designed to ensure that county crews would be able to access bridge right-of-ways, especially during high water years. But bridge right-of-ways have been long used by anglers to access rivers, where they can then legally fish under the state's stream access law as long as they stay within the high water marks.

In 1996 the county was sued by several Madison County landowners who said the ordinance was a taking of private property without compensation. The commission repealed the ordinance in 1997 and the Montana Department of Fish, Wildlife and Parks asked the state Attorney General's Office for an opinion on the issue.

In May 2000, Attorney General Joe Mazurek ruled the recreating public generally has access to streams and river from county roads and bridges as long as they stayed within the road or bridge easements.

Recently, sportsmen complained to the commission saying some landowners were again putting up impediments along county bridges, including electric fences and no trespassing signs.

Madison County Attorney Bob Zenker said at that time the county didn't have "the obligation or authority" to intervene in the dispute between sportsmen and landowners.

On Monday, Commissioner David Schulz said while it may have appeared that the commission was taking a hands-off approach to the issue, "we have been very concerned about it. It has not been taken lightly."

Schulz said the commission has gathered additional information and felt it is an issue that needs to be addressed. The commission may need help from sportsmen in finding site specific solutions, he said.

The commission agreed it would talk with Zenker before making a final decision on how to proceed.

"We're more than willing to help out in any way that we can," said Tony Schoonen, treasurer of Public Lands/Water Access Association. "An old river rat like me could help you out a lot."

Schoonen said the problems are limited to maybe five or six bridges on the Ruby River. Many other landowners, both old and new ones, have gone out of their way to ensure sportsmen have access to the river from bridges that cross their properties, he said.

"There are a lot of good landowners out there," said Schoonen.

But a few have decided to keep people off the river at almost all costs, Schoonen said, adding the Kountz Bridge on the Jefferson River just south of Whitehall is a good example. Schoonen said he's been taking his boat at that spot for 50 years, but recently discovered that a new landowner welded two to three inch metal rods together to form an impassable barrier attached to the bridge.

"You couldn't even drive a tank in there," he said. "That guy hasn't even been here long enough to buy 100 gallons of gas."

"These very wealthy people can go anywhere in the world to recreate. Local people are depending on you to defend their rights," Schoonen told the commission.

Jerry Kustich of Twin Bridges agreed that the county needs to make a stand on this issue.

"If we don't at least establish a position, it's just going to open the door for whole lot more of these issues in the future," said Kustich.

Kustich said that the "new age landowners" responsible for building the bridge barriers don't move to Montana to become part of the community. They don't look for ways to compromise or even try to understand how others feel about issues, he said.

No land owners spoke at Monday's meeting.

"The only way they fight it is take it to court," Kustich said. "They don't want to sit down and be a good neighbor and promote peace in the community."

"I don't have a bit of sympathy for the wealthy people who think it is their God given right to keep people off their river," he said.

Used with permission of the Montana Standard.

River access dispute drags on
By the Associated Press - 04/07/2004

BOZEMAN (AP) - Madison County officials may remove some, but maybe not all, of the barriers landowners have erected at county bridges to keep anglers out of the Ruby River, County Attorney Bob Zenker said Monday.

The county can require landowners to remove the orange no-trespassing signs and electric fencing that some have hooked to county bridges to block public right of way, he said.

However, the county may not be obliged to take down fences at several places with a ''prescribed'' right of way, or one defined by how it was used in the past, Zenker said.

He told the Bozeman Chronicle in a telephone interview Monday that he had advised county commissioners earlier Monday during a public meeting.

Last month members of the Public Lands Access Association Inc. told the commissioners that the bridges violate Montana's Stream Access Law. They said they were considering a lawsuit unless the commission acted.

''The question is whether or not the fence is actually in the county road right of way, which is based upon historical use,'' Zenker said.

He said state law specifies that petitioned easements are 60 feet wide, but prescriptive easements don't have a specified width. That means the fences in question might not sit in the county right of way, Zenker said.

Attorney Devlan Geddes, representing the sportsmen's group, said the bridges have long been accessed by sportsmen and therefore that historic use is well established.

''There's a solid case for claiming that the prescriptive right not only includes the right to use to the road, but to access the river as it has been in the past,'' he said. ''The county's ignoring the historic use of these roads.''

Zenker said the county also has to consider its liability if someone is injured while accessing a stream from a bridge. The Ruby River dispute could set a precedent for how the stream access law is enforced, because a lot of bridges in Montana have fences attached to them.

''It's a circumstance that applies not just to Madison County, but all around the state,'' he said.

Used with permission of the Montana Standard.

Bridge access policy set
by Perry Backus of the Montana Standard, 04/24/2004

VIRGINIA CITY -- Following weeks of commotion over no trespassing signs, orange paint and electric wire inside road and bridge easements, the Madison County Commission has come up with an access plan.

The commission's policy, OK'd this week, asks for something both from landowners adjoining the bridges and sportsmen wanting to access the rivers from bridge right of ways.

The policy will require the landowner to remove orange paint and no trespassing signs in the county road right of way. Landowners may apply for an "encroachment permit" to keep fences connected to the bridge guard rails or abutments to keep their livestock off county roads.

But they will have to allow for access to the river.

The form of that access will be decided after an on-site meeting between a county commissioner and representatives from the landowner and sportsmen's groups. They'll decide the best place to install one or more gates, ladders, or other apparatus for access to the river.

The policy requires sportsmen groups to provide the necessary gates or other apparatus needed for access. The county will install the apparatus. The county will also install warning or no parking signs in areas deemed to be dangerous.

The commission hopes that sportsmen will find volunteers to keep the sites clean, initiate an education program for proper access to waterways as well as police themselves and report trespassing violations on private property.

The commission asked sportsmen in an April 22 letter to designate a Madison County resident as a representative to view each bridge site to get the process started. "We realize that not everyone will be 100 percent satisfied, but we have reviewed the matter carefully and believe that if both sides of the issue will cooperate with this policy, this matter can be resolved," said the letter.

Tony Schoonen, treasurer of Public Lands/Water Access Association, said his groups are disappointed the policy does not refer to electric wire some landowners had strung inside the easements and on the bridges. The groups are also worried that some of the obstacles might be grandfathered in under this new policy, he said.

"They didn't mention the electric wire. Landowners don't need electric wire on top of fence posts to keep their cattle in," Schoonen said. "As far as I know, it's still there It's so upsetting ... they didn't even mention the ones already in place."

"They may call it an encroachment, but we call it a barricade," Schoonen said. Schoonen said sportsmen would have preferred that the county determined the rights of way and removed illegal encroachments.

"Everyone would have been on a level playing field then," he said.

Commission Frank Nelson said Friday that not putting something in the new policy about electric wire on bridge rights of way was an oversight. It's something the commission will probably have to address either through another resolution or an amendment to the new policy, he said.

"It was something that we intended to put in," Nelson said.

The commission made its decision on the new policy based on two issues, Nelson said.

First, the commission agreed that the attorney general's opinion "was pretty clear" in that it allowed people to access rivers from county bridge rights of way.

"It's the force of law until it's changed," said Nelson.

Second, the commission wanted to keep livestock off the roadways. In order to do that, landowners need to be able to fence their property, he said.

And the commission agreed that every bridge presented its own unique situation. The policy had to be flexible enough to address the different problems at each bridge, he said.

"There were just way too many different situations to deal with," Nelson said. "We did the best that we could."

The controversy over access to rivers from bridge rights of way has a long history in Madison County.

In 1995, the county enacted an ordinance that forbade landowners from building fences inside the bridge right-of-way designed to hamper human activity after some landowners built elaborate barbed wire fences that ran up to bridge abutments to keep out anglers.

Bridge rights of way have been used for years by anglers to access rivers, where they can legally fish under Montana's stream access law as long as they stay within the high water marks.

The county was sued by several Madison County landowners in 1996, who said the ordinance took private property without compensation. The commission repealed the ordinance in 1997 and the Montana Department of Fish, Wildlife and Parks asked the state attorney general's office for an opinion on the issue.

In May 2000, Attorney General Joe Mazurek ruled that the public generally had a right to access rivers from county roads and bridges as long as they stayed within the road or bridge easement.

Used with permission of the Montana Standard.

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