County to abandon stretch of Wagner Lane

Flathead County commissioners abandoned Wagner Lane to a developer Friday, over strenuous objections from Commissioner Joe Brenneman and against the advice of a county attorney.

Commissioners Gary Hall and Dale Lauman approved the abandonment of a 3,400-foot stretch of Wagner Lane that hugs Church Slough.

It was a "conditional abandonment," with developer Dennis Carver promising to deed the county 100 feet of frontage on the slough that will serve as public access.

Carver has maintained that the commissioners were obligated to abandon the section of road because they agreed last year to the abandonment if Carver met three conditions: building a paved county road farther away from the slough, installing utilities underground and providing "substantially the same" public access to the slough that currently exists.

All of those conditions have been met, at a cost of more than $300,000, Carver wrote in a recent letter to the commissioners.

But several members of Flathead Wildlife Inc., a local club, told the commissioners Friday morning that the county is not getting "substantially the same" public access, as required by a state law passed two years ago.

One of those members, Warren Illi, said that trading 3,400 feet of practical access that the public has had for decades for 100 feet of access is hardly "substantially the same."

The abandonment effectively will give Carver high-value waterfront lots in exchange for very little, Illi said. Flathead Wildlife wanted a requirement that Carver provide a public trail in place of the abandoned road, and that the slough access include an improved boat ramp. The access offered by Carver would provide parking for five vehicles along the new road and a graveled walkway for the public to reach the 100-foot frontage.

"No ramp is to be built as this intrusion would be unfair to all my neighbors and would be environmentally disastrous for Church Slough," Carver states in his letter to the commissioners. He adds that the walk-in would provide access for small watercraft and ice houses.

Flathead Wildlife countered that those who purchase the waterfront lots will be free to have boats and personal watercraft, apparently with no "environmentally disastrous" consequences.

According to surveys commissioned by Carver, there is a gap between the Wagner Lane right-of-way and the slough's high-water mark along most of the abandoned road section. Carver maintains that the public has been trespassing across that sliver of private land for years.

"There has never been public, legal access to Church Slough" along that stretch of Wagner Lane, asserted Alan McCormick, a Missoula attorney who represents Carver.

McCormick noted that the Montana Legislature also passed a law that protects property owners from "prescriptive easements" that give the public access through the default of longstanding, common practice.

But Jonathan Smith, a deputy county attorney, advised the commissioners that he believes that a prescriptive easement has indeed been established on Wagner Lane to Church Slough, and he contends it was established before that state law was passed.

Smith also advised the commissioners that they should have a deed to the 100 feet of frontage before abandoning the section of road. Conditional abandonments, he said, are "risky."

Commissioners Hall and Lauman disregarded the advice, convinced that Carver will make good on his end of the access arrangement.

Hall said he supported the abandonment largely because it will provide for a much better, safer public access to the slough that will be managed by Montana Fish, Wildlife and Parks and the Flathead County parks department.

Jed Fisher, director of the department, spoke in favor of the arrangement.

Lauman said the improved site will address potential liability issues that the county could face if access continued with the use of a steep and awkward boat ramp. That ramp has caused traffic problems, and neighbors have complained to the commissioners about litter and general mischief at the site.

"I am strenuously opposed to this," Brenneman said, adding that there is a "high percentage" chance that the county would be sued over the matter.

Illi said it must be considered by Flathead Wildlife's board of directors, but he believes there is a "reasonable" chance the group will sue the county for abandoning Wagner Lane.

He noted that the county attorney's office is on record stating that the public has a prescriptive easement on Wagner Lane.

Citing Smith's advice, Brenneman said that officially the county has nothing in exchange for the abandonment except Carver's promise.

He warned that the Wagner Lane dispute, if litigated, could delay Carver's development plans. And he said there is potential for the matter to be perceived as "a case where people with a lot of money come in and take something from the public."

Hall reiterated that he believes the abandonment and access arrangement are in the public's interest.

"I'm just disturbed that you feel as strongly as you do about that," Hall said to Brenneman.

Reporter Jim Mann may be reached at 758-4407 or by e-mail at jmann@dailyinterlake.com