Slugging it out over slough

The legal boondoggle that has emerged over public access on Church Slough is frustrating and maddening on several levels, starting with the fact that it has become a time- and money-consuming struggle for the county to preserve a simple access that, from our standpoint, the public is entitled to.

Developer Dennis Carver doesn’t think so, however, arguing in a lawsuit against the county that the property he donated to the county was only supposed to be a primitive access that would allow people to carry small watercraft to the slough located off the Flathead River south of Kalispell.

That may been Carver’s intent while negotiations were under way over the property back in 2007. But it certainly wasn’t the intent of the county commissioners and a local rod and gun club, Flathead Wildlife Inc., by the time negotiations concluded. The county successfully insisted on getting an unrestricted deed to the property in exchange for abandoning a stretch of Wagner Lane that historically provided public access to the slough to allow for construction of a standard boat launch with eight parking spaces, a project that was carried out with $35,000 in taxpayer money early last year.

Carver now contends in his lawsuit that the modest boat ramp has caused him “to incur a substantial loss of revenue and other financial harm” because the access has become a nuisance that has devalued his lots on the slough.

On the contrary, it is painfully obvious that the abandonment of Wagner Lane dramatically enhanced the value of his property by allowing him to create waterfront lots where Wagner Lane once existed. Regardless of whether he can sell them in the current real estate market, they are far more valuable than they would have been with Wagner Lane still in place.

But the lawsuit makes the curious claim that the new public access exceeds the access that previously existed, when a state statute requires that “substantially the same” access be provided in abandonment of public right of ways. That’s odd, because as we recall, the intent of that statute was to serve as a safeguard for access to public lands and waters by preventing reckless abandonments for the benefit of profiteering landowners.

Carver sought an injunction to close the public access, and that led to a recent court ruling that is truly a headscratcher. In granting sort of a partial injunction, the court ruled that the width of the ramp needs to be temporarily reduced in order to restrict the length of watercraft that can use it to 16 feet. The restriction would hold until the full case is decided by the court.

Apparently, 16 feet was deemed to be “substantially the same” length of boat that could previously access the slough from Wagner Lane, but it seems arbitrary.

Moreover, the length of the watercraft is irrelevant to its nuisance potential. An 18-foot sea kayak would apparently be prohibited, even though it would likely fit through the slimmer ramp width, while shorter and noisier watercraft such as Jet Skis would comply with the restriction.

And there’s an enforceability issue at play here. People who live on the slough, including Carver, can have boats of any size moored at a dock, and people with large boats can access it from the Flathead River when the slough is at high water. How can wardens and county parks officials police the length of watercraft once they are on the water? They can’t.

This litigation has all the markings of costly nuisance nonsense, and the county should do all that is possible to win in court, retaining the access that the public has paid for.