Friend of Chi Wulff Joe Moore, fly fishing wizard and guiding impresario from West Yellowstone, emailed over a gentle reminder we’d missed something last week over on the FOAM blog (Fishing Outfitters Association of Montana).
We’d gotten wind of infamous landowner James Cox Kennedy’s (that’s not his image to the right, but an artist’s recreation from descriptions) latest buffoonery from several others, though Robin Cunningham’s write up in the FOAM blog (sourced it appears largely from the latest Madison River Foundation newsletter) is the only place we’ve run across this report thus far in the fflogosphere.
The ugly and unbelievable bottom-line: JCK is now claiming he owns the bed of the Ruby river on his land and therefore may exclude fishers from long established access.
From the FOAM blog……
As reported by Richard Lessner in the latest Madison River Foundation e-newsletter, James Cox Kennedy, a landowner along the river, “has filed an amendment to his ongoing lawsuit to block public access to his section of the river, citing the February 22, 2012 unanimous U.S. Supreme Court decision in PPL Montana LLC v. Montana.”
“Ranch owner and communications mogul James Cox Kennedy argues that under the PPL decision he owns the bed of the Ruby River because it, like the Madison, was not navigable at the time of Montana statehood. This could have profound implications for Montana’s iconic stream access law.”
“At the time of Montana statehood in 1889, the federal government ceded control of navigable rivers to the state to be held in trust for the benefit of the people, the so-called public trust doctrine. Although the U.S. Supreme Court’s PPL decision directly addressed the issue and said the public trust doctrine stands, that the state retains its broad jurisdiction, it remains somewhat unclear if this applies only to those rivers deemed navigable at statehood.”
“In his lawsuit filed in Virginia City, plaintiff Kennedy alleges that the state of Montana has no jurisdiction over non-navigable waterways (such as the Madison and Ruby) and that denying him (and previous owners of his ranch property) ownership of the river bed constituted an unconstitutional taking.”
“Public access to the Ruby repeatedly has been contested by Kennedy. The issue had appeared resolved when a court decision allowed the public to access the Ruby from the easements at county road bridges. Anglers entering the Ruby from such public access points have full use and enjoyment of the river below the ordinary high water mark, including the bottom of the river. Plaintiff Kennedy is challenging this access by asserting ownership of the river bed.”
“Whether this lawsuit succeeds remains to be seen. Legal opinions differ. But once again it appears that Montana’s landmark stream access law is under assault.”
Those of us who are either a bit more cynical (or prescient) cringed when the SCOTUS opinion on PPL Montana vs. Montana was handed down (and of course that wrangling isn’t resolved as of yet) as it appeared to open a door for this very challenge.
Well that damned door has now swung wide open.
The very core of Montana Stream Access law, the envy of many a fisher around the country, appears to once again be under fire. It’s time to roll up the sleeves and get to work.
