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MADISON COUNTY / RUBY RIVER RULING
2008

Kennedy Attacks Stream Access

Is the Montana constitution unconstitutional ?

Kennedy uses Seyler Lane case to attack stream access.

Agenda laid bare in oral arguments.

Is the Montana constitution unconstitutional ?

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, and the state was "taking the land when it gave Montanans the right to use state streams. He says 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.

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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 the 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 PLWA, P.O. Box 80987, Billings, MT 59108 .. (Deeds to ranches are also accepted.)








related articles

Ruby River Stream Access Victory
( 07/01/2016 )   7/1/2016PLWA, once again, has been victorious in the battle for the public's stream access on the Ruby River, from the Seyler Lane Bridge, likely the original stagecoach route from Salt Lake City, north to Virginia City and Helena.It has been over a decade that PLWA (formerly known as PLAAI) has been involved in a lawsuit over public access to the Ruby River from Seyler Lane and the Seyler Bridge, a public prescriptive easement right-of-way in Madison County.

"Dark Money" Brought to Light
( 07/01/2016 )   The June-July, Newscasts section of Fly Fisherman reported on the recent investigation by Montana's Commissioner of Political Practices, Jonathan Motl, into a dark money campaign that could overturn Montana's Stream Access.Fly Fisherman recounted the Montana Growth Network's campaign contributions to District Judge Laurie McKinnon's run for our Montana Supreme Court.

public land issues

Seyler Lane Update
9/24/2015Seyler Bridge Easement - More Than Just RecreationUpdate - Kennedys attorney requested a postponement of the September 21 hearing.

Tenderfoot - Four Years and Counting
9/24/2015Tenderfoot Creek is a tributary of the Smith River, joining the Smith a mile or so north of Camp Baker.


    18 more public land issues


Is He Tresspassing ?



Public Land/Water Access Association Inc. or PLWA, is a citizen group organized and operated under the Montana nonprofit corporation act.

TERMS OF USE
Articles and Information on this site represent the opinion of the writer and are not intended as legal advice. Legal counsel may be needed in dealing with specific access situations and issues.
     
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