High court to hear stream access case

Associated Press

BUTTE — The Montana Supreme Court next month will hear a case concerning the state’s stream access laws.

The Montana Standard reports the case involving access to the Ruby River from a bridge on Seyler Lane will be heard April 29 in Bozeman at Montana State University.

District Judge Loren Tucker last  April ruled historic public use of Seyler Lane didn’t guarantee public access to the river from the bridge. He did rule the public had a right to access the river from nearby bridges on established county roads, however.

The Public Land/Water Access Association appealed the decision denying access from Seyler Lane. Landowner James Cox Kennedy, who owns about 10 miles along the river, cross-appealed.

Kennedy contends the state’s 1985 Stream Access Law allowing access to streams within the ordinary high water mark, and a 2009 law allowing access from bridges, is an “unconstitutional taking of his vested property rights.”

Attorneys for Kennedy also state in the cross-appeal 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.”

Billings resident John Gibson, president of the Public Land/Water Access Association, said it’s not clear Kennedy can prevail with the Montana Supreme Court but might be looking to go to the U.S. Supreme Court.

“The Montana Supreme Court has ruled that people have a right to recreate on the water, to fish and enjoy their resources,” Gibson said.

Montana Trout Unlimited has filed a court brief in support of Gibson’s group.  

United Property Owners of Montana and the Property and Environmental Research Center have filed briefs opposing Gibson’s group.

“We viewed the lawsuit by PLWA as an attempt to take rights away from Montanans,” Deanna Robbins, president of United Property Owners of Montana, wrote in an email to the newspaper. “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.”