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Suit delays ruling on stream access HELENA (AP) - Because of a pending lawsuit, Attorney General Joe Mazurek has put on hold a decision on whether anglers and boaters may use public bridges to get access to streams running through private property. The Department of Fish, Wildlife and Parks asked for an opinion on the access issue 18 months ago. An attorney general's opinion has the force of law unless overturned by a court or a law change made by the Legislature. Steve Bullock, executive assistant attorney general, said this week that an attorney general's opinion on the matter has been delayed because of a legal battle over access to a lake in Powell County. The suit, filed in May, contends that a county road next to the lake is sufficient to provide legal access to the water by members of the public; and this relates to the bridge access question, Bullock said. "This office has a long-standing policy that if there's pending litigation that deals with the same issue as a requested opinion, the office waits until litigation is completed," Bullock said. The state's law that allows public recreational use of rivers and streams has become a hot issue. The conservative Mountain States Legal Foundation is campaigning to get Montana property owners to challenge the law. The stream access law permits recreationists to use thousands of miles of waterways in the state, even if they run through private property. The law applies to all navigable waters capable of supporting recreation, as long as a person gains access legally and stays between the normal high-water marks. The law was upheld by the Montana Supreme Court in 1985. The fish and game agency requested an opinion from Mazurek in response to 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. Four years ago, Madison County commissioners passed an ordinance saying adjacent landowners could connect fences to bridges only if they did it in a way that still allows public access to the river or stream below. When it was challenged in court by Ruby River landowners on grounds it improperly infringed on their property rights, the law was repealed by the county. In asking for Mazurek's opinion, the fish and game agency said it believes bridges on public rights of way do provide legal access to rivers and streams. The suit that has held up a response from the attorney general involves Lois Lake. Robert Ryan contends it is actually part of Snowshoe Creek, which runs through the lake and is a navigable waterway that falls under the stream access law. He also said a county road abutting the lake provides legal access to the public. Parts of the stream access law that exclude lakes from the public use provisions should be thrown out, because the Constitution says all surface waters in the state are public property and makes no exception for lakes, Ryan argued. Roman and Linda Loppacher, the targets of Ryan's suit, said the lake is manmade and on their private property. They disputed the claim that the lake is part of a navigable stream and denied any county road permits public access to the water. They said any court ruling to the contrary would amount to an illegal taking of their private property by the government without compensation. Copyright 1999 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
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