Church Slough access planned

Compromise reached over Wagner Lane

A tentative agreement has been reached between a developer and a local rod-and-gun club that could pave the way for a public boat launch on Church Slough.

Flathead Wildlife Inc. was preparing to sue Flathead County commissioners over their recent abandonment of a section of Wagner Lane that has long provided public access to the slough, located off the lower Flathead River.

The threat of being tangled in a lawsuit, as well as the county Planning Board's recent recommendation against Dennis Carver's plans for developing lots along the slough, prompted Carver to come to terms with Flathead Wildlife.

Carver said Thursday that the agreement being worked out with the group should be persuasive when the project goes before the commissioners for final approval.

"Nobody from lower valley objected" to the project, Carver said. "The only objection came from Flathead Wildlife. I think with their support, and with this agreement, [the outlook] is pretty favorable."

Flathead Wildlife objected to the Wagner Lane abandonment, even though Carver had offered land to make way for a walk-in access to the slough from a new section of Wagner Lane built by Carver further away from the water. Abandoning the section of road that hugged the slough was approved by commissioners Gary Hall and Dale Lauman, essentially creating waterfront lots for Carver.

Flathead Wildlife cited a state law that requires counties to provide "substantially the same" access to public land and water when they abandon public right-of-ways.

The walk-in path to 100 feet of slough frontage also offered by Carver was not "substantially the same" as the 3,400-foot stretch of Wagner Lane that was abandoned, Warren Illi and other Flathead Wildlife members argued.

Illi pressed for a boat ramp and even a public walkway along the slough.

Carver rejected the idea of a walkway along the slough and objected to the boat ramp as well. He maintained that surveys he commissioned showed there was actually a sliver of private land between the right-of-way and the slough's high-water mark, except along 100 feet of the slough. Therefore, he maintained that the 100-foot frontage donation was substantially the same as the legal access that existed for years.

A deputy county attorney advised the commissioners, however, that a "prescriptive easement" had probably been established because the public had been reaching the slough along most of the 3,400 foot frontage for decades. Carver's attorney cited a recent state law that prevents prescriptive easements, but the county attorney said the prescriptive easement arguably was established prior to that law.

While detailed wording in the agreement is still being worked out, Carver confirmed that he is offering to expand his land donation to dimensions large enough to accommodate a boat launch and a suitable driveway to reach it.

Carver cautioned, however, that the agreement does not specify a boat ramp will be built on land that would be donated to the county parks department.

"I certainly can't dictate to the county what they are going to do," he said. But he added that "there are no deed restrictions. The use of that will be up to the public."

Carver also is offering to dedicate enough land for a public hiking and biking path along the new section of Wagner Lane, rather than the slough. That provision is acceptable to Flathead Wildlife.

"We hope this new hike-biking trail will eventually tie into a valleywide system of hike and bike trails along the Flathead River," says a draft letter from Flathead Wildlife to the commissioners. "If these conditions are met, Flathead Wildlife removes its objection to the River Vista subdivision and the abandonment of Wagner Lane."

Illi said the tussle over access to Church Slough has been instructive for Flathead Wildlife.

"Rather than trying to carry the ball by ourselves in the future, we've learned we should involve other groups like Flathead Audubon," he said.

While the group initially was acting on behalf of sportsmen, it was eventually realized that there is a broader public interest in maintaining access.

"We realized that the most important access is not necessarily fishermen access, but the simple visual access that the public has had from Wagner Lane all these years," he said.

In its draft letter to the commissioners, Flathead Wildlife also recommends that a committee be formed to develop a "written county policy with guidelines regarding road abandonment requests."

Such a policy, it is hoped, would make it unnecessary for Flathead Wildlife to "get involved every single time" the commissioners consider an abandonment request, Illi said.

Consideration of Carver's River Vista subdivision has not yet been scheduled on the commissioners' agenda.

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