State Supreme Court to hear appeal of stream access ruling

2013-03-24T07:00:00Z 2013-03-24T22:15:14Z State Supreme Court to hear appeal of stream access rulingBy FRANCIS DAVIS Montana Standard The Billings Gazette
March 24, 2013 7:00 am  • 

BUTTE — The Montana Supreme Court will hear a case next month that could have far-ranging effects on Montana’s stream access laws.

In April 2012, District Judge Loren Tucker ruled that public use of Seyler Lane didn’t guarantee the public access to the Ruby River from a bridge on that road.

The bridge is near Twin Bridges, about 50 miles southeast of Butte.

The Public Land/Water Access Association appealed Tucker’s decision in a case that will be heard in a single day by the state’s high court at the Strand Union Building on the campus of Montana State University in Bozeman on April 29.

In an aspect of that case that could have repercussions for the state’s stream access laws, James Cox Kennedy cross-appealed.

Kennedy is the chairman of the Atlanta-based media conglomerate Cox Enterprises, which owns the Atlanta Journal-Constitution and dozens of television and radio stations. Kennedy owns over 3,000 acres of real estate in southwest Montana, including nearly 10 miles along the Ruby River.

Kennedy’s cross-appeal threatens two of Montana’s renowned access laws — not only the 2009 law that allows the public access to rivers and streams via bridges on most public roads, but also the 1985 Stream Access Law that allows people access to waters by staying within the ordinary high water mark of rivers and streams.

In his cross-appeal, Kennedy implies a challenge to both those laws as an “unconstitutional taking of his vested property rights.”

Efforts to reach Kennedy’s Missoula lawyer Colleen Dowdall were not successful, but according to court documents, Kennedy asserts that because the Ruby River is non-navigable, it is not in the public trust, and thus “its bed and control of the water above belongs to the riparian owner.”

The cross-appeal court brief goes on to state that “The U.S. Supreme Court has made clear that a public easement to use waters above private streambed is an actual invasion of private property, requiring due process and just compensation. The state’s ownership of the flowing water themselves is thus irrelevant to the question of whether the public may walk on Kennedy’s streambed or boat above it.”

John Gibson, of Billings, president of the PLWA, said he suspects that Kennedy wants to take the case all the way to the U.S. Supreme Court.

“I don’t know if they are trying to get it into the federal court system or what,” Gibson said. “I don’t see what they expect. The Montana Supreme Court has ruled that people have a right to recreate on the water, to fish and enjoy their resources.”

Montana Trout Unlimited has filed a friend-of-the-court brief supporting PLWA, while the United Property Owners of Montana and the Property and Environmental Research Center, Bozeman, have filed briefs supporting the opposition.

Deanna Robbins, of Roy, president of United Property Owners of Montana, thinks PLWA’s lawsuit undermines the rights of property owners.

“We viewed the lawsuit by PLWA as an attempt to take rights away from Montanans,” Robbins wrote in an email to The Montana Standard. “Their lawsuit would have the courts create public access across private land without permission. That’s a dangerous precedent that would have wide-ranging effects on all property owners in Montana.”

The lawsuit, originally filed in 2004, was against Madison County over access to the Ruby River from three bridges, two of which adjoined Kennedy’s property. Kennedy had strung fencing that prevented access to the river from the bridges on Seyler Lane and Lewis Lane. Kennedy intervened in the case on behalf of the county.

The other bridge in question, not on Kennedy’s property, was on Duncan District Road.

The court ruled in favor of the PLWA in 2008 for two of the bridges, Duncan District Road and Lewis Lane, saying the public had a right to access the river from the bridges because the bridges were on established county roads. The case prompted the passage of the law by the Montana Legislature that guaranteed bridge access from established county roads.

However, Tucker ruled against the PLWA in the Seyler Lane portion of the case. Seyler Lane is a road by prescriptive easement, in other words, through historic public use, and Tucker ruled that access to the river for recreational use from the bridge on that road was not guaranteed.

This led to the appeal by the PLWA, and then the cross-appeal from Kennedy on the Lewis Lane portion of the case.

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