From the ‘In Case You Missed It File’: A Little Good News on Montana Stream Access…

by Mark McGlothlin on April 21, 2012

in Access

Nine days ago we posted, after getting pelted by friends and contacts with various emails and calls, a piece regarding the newest (albeit somewhat ill-conceived) attack on Montana Stream Access regs.

The issue dealt with concerns being raised over James Cox Kennedy’s (a source of both angsty heartburn and at the same time significant mirth for Montanans) legal wrangling over Ruby access at bridges on his property.

Montana TU director Bruce Farthing offered his two cents (in the post comments) regarding the matter and we found the update so reassuring and sound that we’ve been meaning to repost it now for a few days and just haven’t gotten around to it. Here it is (edited only for paragraph breaks)….

You’ll be reassured a bit…appreciate the input Bruce.

People can calm down. The stream access law in Montana is NOT jeopardized by the Kennedy bridge access case.

Here are the facts: Kennedy intervened a number of years ago in litigation between the Public Lands and Water Access Association and Madison County. The case involved whether the easement across three bridges on the Ruby River on COUNTY roads in which Kennedy owned the land on either side allowed recreationists to slip into the river at the right-of-way. Madison County had a hard time making up its mind on the issue, and had not enforced the public’s ability to use a right-of-way for recreation when Kennedy constructed concentration camp fence work at the bridges (including hot wire).

Kennedy intervened in the case, saying the public was trespassing at these sites, claiming the rights-of-way were the same width as the bridge. Eventually, the court on summary judgement said the facts demonstrate that the public rights-of-ways on two of the bridges were wider than the bridges themselves, and therefore the public could legally use these areas for access. This type of right of way has long been legal as an access point to streams in Montana, and it was further affirmed by an Attorney General opinion and when TU led the effort to pass a bridge access bill in the 2009 Legislature.

The court did not rule on the third bridge on the Ruby at Seylor Lane because the claim for public access to the river at this site is based on a prescriptive easement, that is an easement established by historical use. And so resolution of this issue is currently in trial. The arguments surround the facts as to what has been the legal, historical use at this bridge. Therefore the case affects what constitutes the rights-of-way at this bridge.

It does not implicate the stream access law, which is a totally different area of law. However, yes, Kennedy’s lawyer, Colleen Dowdall of Missoula, filed a supplemental argument in the right-of-way case citing the Supreme Court’s decision in the PPL v. Montana case, claiming the findings there invalidate the constitutionality of Montana’s stream access law.

Two problems for Kennedy, however: 1.) the Supreme Court did not invalidate the stream access law. In fact, it wasn’t implicated in the PPL case at all, and his lawyer is really stretching things. That case solely dealt with what constitutes “navigability” for commercial purposes at the time a state entered the Union, which is the test for who owns riverbeds in most states. If deemed navigable for commerce at statehood, the state owns the riverbed between the lower water marks. If not navigable for commerce, it’s a little unclear who the Supremes then think owns the riverbed (they kind of imply in their decision it is the federal government, but in practice in Montana it will probably be the owner of the adjoining riparian property. They are the heirs of the patent given originally by the federal government). The PPL case dealt solely with ownership because the utility did not want to pay rent to the State of Montana for occupying a public riverbed with its dams. That was the nut of the case. However, and this is important: Use of streams for recreational purposes in Montana is not predicated on riverbed ownership. According to our stream access law, twice upheld by the state Supreme Court, the public is entitled to recreate on any natural stream in our state, irrespective of who owns the bed and banks, as long as the stream is capable of supporting recreation and you stay within the normal high-water mark. The U.S. Supreme Court changed none of that; and, 2.) Kennedy’s lawyer is trying to mix right-of-way issues over a county bridge with the a claim about the stream access law not being constitutional. These things don’t quite mix in terms of legal theory to get Kennedy what he wants.

She seems to be taking the PPL case and throwing it at a wall and hoping something sticks. It won’t. The attorneys for PLWA in the Madison County bridge case are the best public access lawyers in Montana. They agree: The PPL decision did not affect our stream access law (in fact, the Supremes sort of imply that strongly in their decision). And thus, to insert it into the bridge case to undermine stream access, or right-of-way and easement law, or whatever this attorney is trying to do, is not particularly productive. But when you have a client with tons of money, why not let him pay for far-fetched legal theories? After all, it means more billable hours.

All this said: Get used to seeing more long-shot legal theory based on the PPL case and other cases wherever well-heeled landowners want to keep the public off of rivers and streams. Some of these guys are persistent and stubborn. But that doesn’t necessarily mean they are right.

Montana TU is keeping tabs on all this stuff. By all means circulate this note to other outlets.

Bruce Farling, executive director?Montana Trout Unlimited

This happens one of several reminders we’ve received of late regarding the good work the PLWA is doing – more to come in a day or two.

Tags: Access