Another Fight, Another Win for Access

Keeping our rivers open to the public

By Rob Breeding

The fight for access on the Ruby River is finally over, maybe. After a legal battle that dates back more than a decade, the final piece battle in the Ruby River War has been decided, with District Court Judge Loren Tucker ruling that the disputed easement for the Seyler Lane Bridge extends five feet both upstream and downstream from the roadway.

That will be a tight fit for someone launching anything larger than a single-person pontoon boat, but still, the decision is a significant victory for stream access in Montana.

The Public Land/Water Access Association first won in 2014 when the Montana Supreme Court overturned Tucker’s previous ruling that there was no public easement on Seyler Lane, since that public road had been created by prescriptive easement. A prescriptive easement is created not by petition or when a subdivision is created and the roads are deeded to the county, but instead by continuous public use for five years that is uncontested by the landowner.

Seyler Lane was never deeded to Madison County, but the road has been treated as public for quite possibly more than a century. Some consider the road to be the original stagecoach route between Salt Lake City and Montana. In more recent times, the bridge that crosses the Ruby River at Seyler Lane was built by the county. But the use of public rights of way to access the Ruby changed when James Cox Kennedy bought the ranch through which the Ruby runs. Kennedy blocked access at Seyler as well as two other lanes, Duncan and Lewis. The Access Association filed suit in 2004 challenging Kennedy’s actions.

The dispute at Duncan and Lewis lanes was settled a few years back, and since the roads were created by conventional means with 60-foot deeded easements, access was secure. But Seyler is different, and was treated as such. Tucker first ruled there was no public easement beyond the blacktop, and hence no access, but the Supreme Court said, “Uh uh” and instructed Tucker to determine the width of the easement needed to maintain the road and bridge.

The Madison County Commissioners briefly flirted with the notion that no easement beyond the roadway was needed and the county would just ask Kennedy permission whenever bridge maintenance was required. That solution was unlikely to meet with approval from the Supreme Court.

While the decision seems to settle the issue, don’t be surprised if this isn’t the final word on the Ruby River War. Media mogul Kennedy has deep pockets, and his attorneys have previously argued that Montana’s Stream Access Law is unconstitutional despite it being repeatedly upheld by the state’s Supreme Court and the U.S. Supreme Court, which has more than once refused to hear appeals sought by litigants hoping to get the law overturned.

After Tucker’s most recent ruling, Reed Watson of the Bozeman-based Property and Environment Research Center, said, “It’s not clear if that grants public access or not.” Despite the obvious intent of both Montana law and the state’s highest court, don’t be surprised if Kennedy adopts similar rhetoric.

I’ve never been to Seyler Lane, but the photos of the river at the crossing suggest the Ruby will never host major float traffic. It’s a small river, but like Mitchell Slough on the Bitterroot, the principle involved is big. In both cases the precedent that would have been set if the “No Trespassing” signs had been allowed to stand would have led to the unravelling of stream access in Montana.

Each of these seemingly little victories on stream access is a reminder of what a remarkable story this is. The fight to preserve stream access in Montana is a rarity in contemporary America. Despite the odds, and the stacks of money anti-access zealots shove in the direction of their attorneys, the good guys just keep winning.