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Billings Gazette: State Supreme Court to hear appeal of stream access ruling


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.”

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.”

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