Seyler Lane/Ruby River Summary

In 2004, Mr. James Cox Kennedy, an out-of-state landowner, on the Ruby river in Madison County, took action to stop the public from entering the river on his property. Three public road bridges cross the Ruby river on the ranch,  had been used frequently by anglers for decades. Fences at the bridge abutments on Duncan Road, Lewis Lane, and Seyler Lane were wired up to keep people from accessing the river – including electric fences at some places. This infuriated local anglers and floaters who organized a symbolic “float in” to bring attention to the situation. PLWA, not wanting to see this go unchecked, brought action against the Madison County Commissioners to require them to stop Mr. Kennedy’s actions. The lawsuit demanded that the county recognize that the road right of way did not narrow at the bridges and was in fact the statutory 60 ft. – per Montana Attorney General Joe Mazurek’s ruling of May 2000.  It also asked that the court recognize that fences to the abutments were encroachments of the right of way under existing Montana statutes. Mr. Kennedy brought a counter claim in the matter and a watershed case was in the making. Joining Kennedy as intervenors were the Montana Stockgrowers Association and the Hamilton Ranches.

On September 30, 2008, Judge Tucker ruled in favor of PLWA, that the width of road right of way on Duncan Road and Lewis Lane was indeed 60 ft. “Duncan District Road and Lewis Lane is granted to the extent that the public may utilize any portion of the 60 foot right of way regardless of the Ruby River intersection with it and subject to law-full management by Madison County Commissioners.” The easement is 60 feet in width unless specified in the original acceptance document issued by the county. It follows then that there is no pure private land within the width of the easement and all lands therein are subject to the easement provisions which allow public passage. The fact that the river bottom is owned by the landowner does not prohibit the public from accessing the river where the road and water easements intersect.

The Judge Tucker did not rule on the width of right of way on Seyler Lane, since it was a prescriptive easement. The Seyler Lane case would not be concluded until the fall of 2016.

The ruling in this 2008 case led directly to the passage of HB 190 in the 2009 legislature, which, in effect, put the judge’s ruling into law.

In spring 2017, PLWA contacted FWP about the narrow, restricted and unsafe public access on Seyler and Lewis Lane bridges. On May 4, 2017, FWP met with various members of the public to discuss “safe and convenient” public access. During the summer, FWP completed the fencing access project on the north and south side of Lewis Lane, including a roller bar for boats. Seyler Lane will have spring gates installed in the spring of 2018.

Read the case filing details for the district court here and the supreme court here.

UPDATE: May 2022

*Click here to access Seyler Lane Bridge support letter*

Madison County Commissioners met in April 2022 and discussed a proposed new bridge construction at Seyler Lane in Madison County. The bridge proposal is in its initial phase, with completion scheduled for 2024 if all goes well. Jeremiah Theys of Great West Engineering made the proposal (jtheys@greatwesteng.com). It is the understanding from local PLWA supporters that there was also a public meeting regarding the issue in Twin Bridges during the past couple of weeks. Minutes from both of these meetings are available from Laurie Buyan, The Madison County Commissioners’ secretary by calling 406-843-4277.

The bridge is deteriorating and for safety reasons, should be replaced. Letters of support for a new bridge and public access should be sent to Jeremiah Theys before May 19th, as this is when the initial application has to be filed. There are currently two access sites at the Seyler Lane bridge, one on the NE corner and one on the SW corner. These sites have PVC rollers on the top horizontal fencing for ease of pushing a kayak, raft, canoe, or small boat over the top of the fence. This is especially handy for seniors and youngsters accessing the Ruby River. Unfortunately, there is a major lack of safe and legal parking at the current bridge, which may be addressed during the new bridge design/construction process. The current suggestion is to request 3-4 safe, legal parking spots in the right of way. If both the access and parking issues are addressed with the new bridge design/construction, then this project would have PLWA’s full support.

Click here to access a templated support e-mail to send to Mr. Theys voicing your support for a new bridge that offers public access points and safe parking options. Please take a moment to personalize your letter before sending.

UPDATE: June 2017

Since the PLWA Seyler Lane Bridge case against Madison County and James Cox Kennedy was finalized this last fall, we thought it time to get with FWP about the bridge access situation. After contacting FWP Director Martha Williams (thanks to FWP for a quick response), a meeting was set up for May 4th.

In attendance were: FWP – Region 3 Supervisor Sam Sheppard, Ray Heagney (Fishing Access Site Manager Region 3), Matt Jaeger (Region 3 Fisheries biologist) and Bill Schenk (FWP legal counsel from Helena), Wardens Ryan Picken and Coy Kline; Roy Morris for TU; Harold Johns for Skyline; and PLWA members Tony Schoonen, Kathryn QannaYahu and local members Howard Chrest and Mark Savinski.

After discussing Seyler Lane Bridge, we all drove over to Lewis Lane Bridge for the same access discussion. Kathryn took photos, notes and audio to ensure accuracy of notes, looked up references and provided the linked MCA involved.

Mark pointed put that it has been close to 15 years ongoing, the public has waited long enough, access needed to be restored.

Seyler Lane Bridge

After everyone arrived and introductions were made, we all got on the same page by going over statements from the MT Supreme Court case DA 12-0312 concerning the ruling which stated there was a “single, unified, public road right-of-way,” and “the areas that are reasonably necessary to support and maintain Seyler Bridge, and to ensure the public’s safe and convenient use of it, are included in the Seyler Lane public road right-of-way.” Width of Seyler Lane easement remanded back to the District Court for ruling. The tiny gap, in conjunction with the steep slope at two corners of the bridge is not safe or convenient for any gear, rafts, tubes, boats, etc.

Montana Code Annotated 7-14-2107 Acquisition of right-of-way, was also mentioned in reference to the Supreme Court Case and the county road easement, “

(3) By taking or accepting interests in real property for county roads, the public acquires only the right-of-way and the incidents necessary to enjoying and maintaining it.”

MCA 23-2-312 – Access to surface waters by public bridge or county road right-of-way was mentioned. “

(1) A person may gain access to surface waters for recreational use by using: (a) a public bridge, its right-of-way, and its abutments; and (b) a county road right-of-way.

(2) When accessing surface waters pursuant to subsection

(1), a person shall stay within the road or bridge right-of-way. Absent definition in an easement or deed to the contrary, the width of a bridge right-of-way is the same width as the right-of-way of the road to which the bridge is attached.”

Concerning District Court Judge Tucker’s final ruling from Sept. 2016 DV 29-04-43, “The total width which is necessary for use, maintenance and enjoyment of Seyler Lane including five feet upstream and downstream from the end of each of the bridge abutments at the sections noted below is as follows: 47.5 feet.”

The next course of discussion involved Stream Access Law, 23-2-312 , “Access to surface waters by public bridge or county road right-of-way.

(1) A person may gain access to surface waters for recreational use by using: (a) a public bridge, its right-of-way, and its abutments; and (b) a county road right-of-way.

(2) When accessing surface waters pursuant to subsection (1), a person shall stay within the road or bridge right-of-way. Absent definition in an easement or deed to the contrary, the width of a bridge right-of-way is the same width as the right-of-way of the road to which the bridge is attached.”

Since there is landowner fencing in place, that involved MCA 23-2-313, “Fencing for livestock control and public passage — negotiation — costs.

(1) At county road bridges for which public access is authorized pursuant to 23-2-312, each fence attached to or abutting a county road bridge edge, guardrail, or abutment for livestock control or for property management pursuant to  MCA 7-14-2134(4) must provide for public passage to surface waters for recreational use pursuant to this section.

(2)(a) If a dispute arises regarding public passage pursuant to subsection (1), the department, pursuant to the department’s policy in MCA 87-1-229  to work with private land managers to resolve and reduce user conflicts, shall negotiate with the affected landowner regarding the characteristics of an access feature of a legal fence for public passage and livestock control or property management. Examples of an access feature of a legal fence that provides public passage and livestock control or property management may include: (a variety of styles are mentioned specifically). (c) If the landowner and the department cannot reach agreement within 60 days after the department’s initial contact with the landowner for negotiation, the department shall provide the landowner with options for methods to provide public passage while controlling livestock or managing property. If the landowner does not choose one of the method options within 30 days after the options are offered, the department shall choose and then may install one of the method options.

(3) The department, in cooperation with other interested parties, shall provide the materials, installation, and maintenance of any fence modifications necessary to provide public passage as required by this section. ”

1. If a dispute arises (we all agreed one existed)

2. FWP will then work with the private landowners (James Cox Kennedy for Seyler Lane and Morris Land and Cattle & Kennedy for Lewis Lane). The first contact begins the 60 day countdown. Everyone agreed FWP would first make personal contact with the landowners to have a conversation instead of lawyer to lawyer, then they will receive an official letter, which Bill Schenk would help draft, this would kick in the 60 days. The landowner meeting was held on May 19th, beginning the 60 days.

3. If the landowners do not reach an agreement with FWP within the 60 days on fencing which will facilitate public passage…

4. FWP will then provide options. If the landowners do not choose within 30 days, FWP will choose and install one of the options.

5. At the appropriate time, Ray will get the utility locates done, they are good for 30 days.

6. Basically, it was thrown out that the public access should be available by Sept.

So the discussion was then focused on which upstream corner and which downstream corners to improve.

Below you can see the Northern Corner 16” Gap. The District ruling map shows areas highlighted in red are the two projected corners of work. Following are photos of the two corners. On the northern corner, the gap is only 16″.

We went to Lewis Lane Bridge to have the same conversation and measure, choosing the northern and southern corners for the best access. Lewis Lane is a county road with 60′ easement, 30′ from centerline.

UPDATE: September 2015

Seyler Bridge Easement – More Than Just Recreation

Kennedy’s attorney requested a postponement of the September 21 hearing. A future hearing date has yet to be determined.

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 county road right-of-way in Madison County. In January 2014, the Montana Supreme Court reaffirmed Montana’s Stream Access Law, clarifying that the public may use the entirety of the public prescriptive easement right-of-way for all lawful public purposes. It also remanded the Ruby River action back to the District Court to determine the “definite width of a single, unified” public road right-of-way that was not determined at the previous trial. Per the Supreme Court, the width must include whatever land is “reasonably necessary” to maintain and support the established public road and bridge and the land that has historically been used by the public. This was a great victory for PLWA and the public.

Previously in the lawsuit, when the District Court initially determined that Madison County held a wider and independent “secondary easement” than the public’s right to the paved road, Madison County was all for “wider”. Madison County stated it had an “uncontroverted” prescriptive right to maintain “the subjacent and lateral support for Seyler Lane and Seyler Bridge, together with such additional land as is reasonable and necessary for maintenance and repair”, which includes the “bridge abutments, wing walls and bridge spans.” So what happened to “that” Madison County? Well, since the Supreme Court ruled the general public may use the entire right-of-way, wider is no longer better for Madison County.

In a briefing, Madison County stated it would rather obtain a license to do work outside the right-of-way, admitting that future maintenance work was a reasonable expectation. That doesn’t sound like the Supreme Courts guidance that the width must include whatever land is “reasonably necessary” to maintain and support the established public road and bridge right-of-way.

Most people think of “recreation” when they hear this access lawsuit brought up, but there is more to this story than just recreation, we’re talking saving taxpayers money and public servant safety. What fiscal conservative would object to that? And who would want our public servants taking unnecessary risks when serving the public?

Last August, PLWA even sought the assistance of Montana Attorney General, Tim Fox, and the Assistant Attorney General, Matthew Cochenour to intervene, taking over Madison County’s defense, since the duty of the State of Montana is the safety of the public on its roadways and bridges.

In June 2015, Madison County and Intervenor James C. Kennedy argued the already presented evidence was insufficient to determine the precise width of the easement, as required by the Supreme Court. They argued that PLWA must come forward with additional evidence. So PLWA sought two witnesses that testified at the 2012 trial, one of which had since retired from the Montana Department of Transportation. It was determined that Madison County and Kennedy should have limited additional time to name a rebuttal witness, so the June 15th hearing was continued until August 3, 2015.

During the hearing PLWA/PLAAI Attorneys, Devlan Geddes and Kyle Nelson, called Shane Escott to testify, offering exhibits which are admitted. Then they call Dan Gravage to testify, who testified in 2012 and is now retired from the MTDOT. Kennedy objects, having issues with him being an “Expert Witness.” It is determined that he can testify as a “Hybrid Witness.” A motion from Kennedy to strike Gravage’s construction testimony is denied. PLAAI attempts to call its 3rd witness, Barney Hallin, one of the original witnesses. A discussion of two witnesses per court order ensues. Kennedys attorney said he had two witnesses, witnesses that had not been deposed by PLWA yet. So the court determined a continuance of the proceedings, providing time for the deposition of Kennedys two witnesses.

The next hearing will be September 21, 2015, at 9:30 A. M., at the Madison County Courthouse in Virginia City, where only 3 witnesses will be allowed to testify.

The Seyler Bridge will not last forever. At some point it is going to require repairs or replacement. This court case will decide the “definite width of a single, unified” public road right-of-way. Hopefully, the Court will find the entire 60 foot full width proposed by PLWA, which would not only be “reasonably necessary” to maintain and support the established public road and bridge right-of-way, but would also allow the general public to access the Ruby River. Yes, that includes the recreation part.

Wouldn’t it be better for public safety and to truly determine what is a reasonable width, rather than play games with public safety?

GUEST UPDATE: January 2015

STREAM AND BRIDGE ACCESS TRIUMPH – SEYLER LANE, RUBY RIVER BRIDGE ACCESS

Courtesy of Bruce Farling, Executive Director, Montana Trout Unlimited

Recent Montana Supreme Court decision on Ruby River Bridge Access

Background

The Montana Supreme Court issued an opinion January 16, 2014, in the long running legal dispute created by Atlanta media mogul Jim Kennedys challenges of recreational access from bridges over the Ruby River. The recent decision affected two court actions: 1.) An appeal brought by the Public Land and Water Access Association (PLWA and formerly known as PLAA) of a lower court decision regarding the nature of the prescriptive easement on the county road/bridge at Seyler Lane; and, 2.) A cross-appeal filed by Kennedy challenging a previous lower court ruling that affirmed recreational access as being legal within a recorded easement on Lewis Lane.

Montana TU filed a separate amicus brief bolstering PLWAs arguments for access.

The opinion overturning the Seyler Lane decision and denying the cross-appeal affecting Lewis Lane is very strong. In the Seyler Lane case the lower court had made the unprecedented ruling that there are two prescriptive easements there, one for the county that is wider than the bridge, but which only allows access to the county for purposes of maintaining the bridge; and another that is only as wide as the roadway, which is for the public, but only for travel across the bridge. (Simply put for those not familiar with road easements, prescriptive easements are established through continuous public use along a travelway that occurs over time without either the explicit permission or opposition from the landowner). The lower court further ruled that in no case could continuous recreational use be the basis for establishing a prescriptive easement. The Supreme Court rejected these findings by a 5-2 vote.

In the case of Lewis Lane, Kennedy argued that the easement there could not be used for access to the river because Montana stream access law is unconstitutional, supposedly because it is a taking of private property without just compensation. Ignoring settled law that says because the public owns the water it has a right to use it for recreational purposes, Kennedy claimed the public couldnt have access from a bridge to the river because he owns the riverbed. He claimed only he has the right to use the river. By a 7-0 margin, the high court rejected Kennedys claims. The court pointed out that our stream access law is settled law (having been affirmed by the Montana Supreme Court and rejected for review by the U.S. Supreme Court in previous cases). The justices noted, among other things, that Kennedy purchased his property after the stream access law was already in place, and therefore something had not been taken from him.

The basic outcome is this, If there is a public easement on a county bridge, whether its through a deed, petition or prescriptive, the public can use that easement to access the stream, provided it is physically possible to reach the area below the high water mark from within the easement. No more Keep Out signs.

Importantly, the ruling also affirms the bridge access bill, while clarifying how prescriptive easements should be treated, that Montana TU worked to pass in the 2009 Legislature. The ruling does not change that legislations intent to ensure that when landowners need to build fencing to constrain livestock within bridge easements, the public and landowner will work together to find mutually agreeable approaches to accommodate access and landowner needs.

One last note, a recent opinion piece signed by Sen. Debby Barrett (R Dillon) and published in Montana newspapers decries the recent Ruby bridge ruling as unconstitutional.

GUEST UPDATE: January 2014

Resounding Victory in Montana Supreme Court - David vs. Goliath

Contributed by Andrew Johnson

On January 16, 2014 the Montana Supreme Court overturned a lower court and assured public access to the Ruby River from bridges on land owned by Atlanta media mogul James Cox Kennedy. The decision sets a precedent that validates all Montana stream and bridge access laws. The Court affirmed a previous decision that two of the county road bridges – Duncan Road and Lewis Lane – have a 60-foot wide public easement intersecting the high water mark of the river. This is the decision that led to the Montana Bridge Access law.

What’s new is that the court essentially threw out the District Court ruling on the third bridge – a bridge on the Seyler lane road . The lower court had mistakenly ruled there was no recreational access on the bridge because it was on a road created by prescription or regular public use and recreational use was not a basis for creation of the prescriptive right -of- way.

On Seyler Lane, the case was sent back to District Court with instructions to determine the width of the public road right-or-way which had been established by prescriptive use. Significantly, the Court held that once a prescriptive easement is established, access extends to all public uses including recreational use.

The Supreme Court justices rejected the District Court ruling that a secondary easement existed to accommodate maintenance by state and county crews and recognized recreation travel as a legitimate use to help qualify a road for prescriptive easement status.

The Court also emphatically upheld Montana’s stream access law, stating -œthat the State owns all the waters in trust for the People . . . and that a riparian owner takes his property interest subject to a dominant estate in favor of the public. -œ

John Gibson, President of PLWA, stated -œToday’s ruling from the Montana Supreme Court confirms once again that our streams are public resources, and not the exclusive playgrounds for the select few. The public’s right to wade or float any river or stream in the state has been recognized, as well as the right to access those streams at bridges crossed by public roads. We want to thank Montana Trout Unlimited and the Montana Wildlife Federation as well as our loyal members for their contributions.

“We have been involved in this case for over ten years and this decision has justified our efforts,” Gibson says. He went on to say that, “Much of our success is due to the great work of the Goetz Law Firm in Bozeman who lead us thru the legal maze surrounding access to the public waters of Montana.”

What does all this really mean ?

The basic outcome is this: If there is a public easement on a county bridge, whether it’s through a deed, petition or prescription , the public can use that easement to access the stream, provided it is physically possible to reach the area below the high water mark from within the easement. No more “Keep Out” signs.

In the absence of information to the contrary, if a bridge on a rural road is maintained by the county, the presumption is that it is either a county road or a prescriptive easement and therefore there is legal access at that bridge.

Maybe it will cause some Rolex Ranchers and misguided legislators to quit messing around with established law. The people have spoken and the law has spoken.

Stay tuned as the implications reverberate.

UPDATE: June 2013

This is what I heard the lawyer for James Cox Kennedy say at the Montana Supreme Court hearing in Bozeman on April 29.

Although it might sound ludicrous, we shouldn’t take such claims lightly. There are many powerful individuals and organizations that would like to prove Kennedy’s lawyer correct.

The Public Land and Water Access Association is taking it very seriously. We have established the Stream Access Defense Fund to protect our right to access streams from public bridges and to float both navigable and non-navigable rivers and streams.

Let me remind you that PLWA is an all volunteer organization. No one in PLWA is on salary or commission. Your contribution will go directly to protecting stream access.

We have been in this Ruby river legal conflict for almost ten years. That’s when Kennedy placed electric fences on the bridge abutments and over the water. It has been an expensive and lonely fight. The state has not joined us in our lawsuit.

If anyone believes our stream access law is unimportant, all they need to do is look at states such as Wyoming or Colorado (where neither you nor any of your equipment can touch private land below the water) to realize our state of Montana is the champion of public stream access in the United States.

The purpose of this letter is to ask your help in defending our stream access law by making a contribution to our Stream Access Defense Fund.

PLWA will continue to be obligated to pay legal defense bills even though amicus briefs have been filed by Trout Unlimited and to a very limited extent by the State of Montana. We expect Kennedy and his allies, the United Property Owners of Montana and the PERC organization to try and move this case into the Federal Court System. Our law firm, the Goetz Firm of Bozeman, plans to continue the fight all the way. We are quite sure there will be an infusion of “Dark Money” into the other side’s coffers even though Kennedy himself is a billionaire.

PLEASE HELP IF YOU CAN !

John Gibson, President of Public Land/Water Access Association

UPDATE: May 2013

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”.

The article below Courtesy of the 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 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.

UPDATE 2: April 2013

PLWA MT SUPREME COURT APPELLATE HEARING

Public Lands/Water Access Association ( PLWA ) Seyler Bridge Montana Supreme Court Appellate Hearing on April 29, 2013.

The Oral Argument was heard at Montana State University, Strand Union Bldg., before a standing room audience.

This video was obtained from the Montana Law Library, no other video could be found, nor any audio or transcript of the hearing. Whoever was video tapping, a passerby knocked the camera down and the last few minutes of James Cox Kennedy’s attorney’s rebuttal is lost and the first few of PLWA’s attorney’s closing.

The following is a transcript segment of James Cox Kennedy’s (Intervenor) attorney, Mr. Kaufman, arguing that Montana’s Stream Access laws and that part of our Constitution was unconstitutional. Besides Kennedy’s attorney stating that Kennedy owns the air space above the river, that stream access was a “taking”, he also stated, “This court said that unconstitutional actions are void and the passage of time does not render them okay, does not render them constitutional.”

At which point Justice Patricia Cotter asked, “You’re asking us to overturn Curran & Hildreth, aren’t you, and also to declare the stream access bill unconstitutional?”

Kennedy’s attorney replied, “That’s correct.”

Cotter then asked, “Counsel, aren’t you also asking us to declare a portion of the Montana Constitution unconstitutional? (Kennedy’s attorney interjected “Yes”) Article Nine, Section 3 provides paragraph 3 that, ‘All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.’ If your position is, we were to accept it, would reject that provision of the constitution?”

Again, Kennedy’s attorney answered “yes”.

This is not a small land dispute taking place, it is a portion of our Montana Constitution and our Stream Access law that Kennedy is attacking.

UPDATE 1: April 2013

WHO SAYS THERE WERE NO ELECTRIC FENCES ON THE RUBY ? !

In recent days there have been op eds in various papers saying the James Cox Kennedy never used electric fences on the Ruby River. Sorry guys, we have the evidence! Here is the photographic proof, taken by Tony Schoonen in 2004.

UPDATE: March 2013

As members are aware, PLWA has appealed an April ruling by Madison County District Judge Loren Tucker that limits stream access from bridges on roads with historic prescriptive easements. (A prescriptive easement is one created by continuous public use.) In that ruling , the lower court said that the public doesn’t have the right of recreational access to the Ruby River from the Seyler Lane bridge – a bridge on an agreed upon prescriptive road . (The Ruby is a classic trout stream flowing north near Twin Bridges, Montana.) Essentially, he ruled that the public prescriptive right-of-way for most uses was just for the roadway surface – not the borrow pits or bridge abutments, and that prescriptive use did not include recreational use. PLWA believes that the right-of-way is the full 60 feet and that recreational use is allowed just like any other legal use. Based on consultations with PLWA lawyer Devlan Geddes of the Goetz law firm, we are optimistic about chances on appeal.

However, that same case has also prompted a challenge to two existing Montana statutes – the 2009 bridge access law and the Montana stream access law which has been around since 1985. A portion of the challenge is in the form of a “cross appeal” by the associated landowner, James Cox Kennedy, a billionaire media mogul from Atlanta. In that appeal he argues that the stream access law and the law allowing recreational stream access at county road bridges are an unconstitutional “taking” of his property. He further argues, along the lines of Tucker’s decision, that recreational use is not included in public prescriptive road easements. It is clear he will not be happy until our bridge and stream access laws are gone.

Montana is lucky to enjoy the best stream access in the U.S. We cannot stand by and see it eroded by this case or any other case. This is turning out to be a high profile case. Montana Trout Unlimited recognizes this and they have filed a friend-of-the-court amicus brief on our side, The opposition has also recognized this and United Property Owners of Montana (UPOM) and the Property and Environment Research Center (PERC) have both filed amicus briefs supporting Kennedy. (Just Google them to see what they are all about. )

In a somewhat unusual action, the court will hear this case in the Strand Union Ballroom of Montana State University Bozeman on April 29. The introduction to oral argument will start at 9:30 A M and will conclude that morning. Attendance by a large number of access supporters would be more than useful. You will learn a lot and it will show the court strong public interest.