Although, the case is about access on a prescriptive road, Kennedy’s attorney wasted little time in attacking stream access as a whole. He drew several questions from the justices when he argued that not only was Tucker right in his easement ruling, but that the state of Montana has been wrong for decades by allowing anglers to wade in streams like the Ruby River. Kennedy asserts he owns the river streambed and the water above it, so the state was taking the land when it gave Montanans the right to use state streams. That violated the U.S. Constitution.
Justice Patricia O’Brien Cotter asked if he was asking the court to declare part of the Montana Constitution unconstitutional. “All waters are the property of the state for the use of its people,” Cotter said. “Your position would reject that provision of the constitution.” The answer to that was “yes”.
Article below Courtesy of Madison River Foundation
April 30, 2013
Montana Supreme Court Hears Ruby River Bridge Access Case Will the Stream Access Law Survive?
Yesterday the Montana Supreme Court heard oral arguments in yet another challenge to the state’s stream access law. This latest assault arises from a case on the Ruby River. A wealthy out-of-state landowner, James Cox Kennedy, is asserting ownership not only of the riverbed, but of the water in the river itself.
The case arose when Kennedy closed off public access to the Seyler Lane Bridge on the Ruby, despite the fact that the previous owner had allowed the public to access the river from the span’s right-of-way, in effect creating what is called a “prescriptive easement.”
On this basis ,PLWA sued. Madison County . In the first trial
Judge Loren Tucker ruled that the easement applied only to the roadway and not the adjoining easement. Kennedy appealed to the Supreme Court and broadened the case to include the state’s iconic stream access law.
Montana’s stream access law is based on the “Public Trust Doctrine”. It states the state holds water in trust for the public, which has the right to secure its use it for beneficial purposes. This includes recreation. The access law means the state holds rivers up to the ordinary high water mark in trust for the public to use. Kennedy invokes last year’s U.S. Supreme Court ruling in
PPL v. Montana.
That case found that the state only holds in trust rivers that were navigable at the time of statehood and that the Ruby (and the Madison) were not navigable in 1888. Hence, Kennedy asserts, the public trust doctrine does not apply and he owns the river bed as well as the water flowing over it.
Should the court find for Kennedy on the stream access part of the case — however it rules on Seyler Bridge — it could upend Montana’s stream access law. This would be a disaster for anglers and other recreational users on numerous streams to which the public currently has access, not to mention much of Montana’s recreation-based tourism industry. Kennedy’s assertion that he owns the water in the river as well as the stream bed is simply breathtaking. It has implications for the broader issue of water rights well beyond the matter of recreational use.
Under the public trust doctrine, the people retain ownership of
all the water in the state — regardless of navigability — and can use it for their benefit and pleasure. It makes little sense to say that the public owns the water if the public cannot access it and put it to a beneficial use. We can only hope the state Supreme Court upholds the public trust doctrine and the state’s landmark stream access law.
Litigation like this is not cheap ! A case can cost $200,000 to $300,000 . While we have received generous donations from a variety of individuals and clubs the bills keep piling up.
Although we are defending ta basic legal right of all Montanans, we get no help from the state ! Unlike Mr. Kennedy, who has almost unlimited budget to throw at this case, PLWA is a true grass roots organization which has to raise funds one small chunk at a time.
Want to support this effort ? Go to our website www.plwa.org and click on DONATE . You will be directed to a PayPal page, but you do not need to be a PayPal member to contribute. All you need is a credit card. (PayPal is super secure.) You can also send a check to the address at the bottom of this email. (Deeds to ranches are also accepted.)
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Public Land/Water Access Association | PO Box 80987 | Billings | MT | 59108