HELENA — A landowner’s claim that he can keep the public out of a portion of the Ruby River doesn’t hold water, the state Supreme Court said Thursday in a decision upholding Montana’s stream-access laws.
The 5-2 decision favored the Public Land and Water Access Association in its legal dispute with Madison County and James Cox Kennedy, the chairman of Atlanta-based media company Cox Enterprises, who owns about 10 miles along the river in the county.
The group said Kennedy built fences along county roads and bridges next to his land that prevented the public from using rights of way to reach the Ruby River.
Kennedy argued that the state’s 1985 Stream Access Law allowing access to streams within the high-water mark and a 2009 law allowing access from bridges are an “unconstitutional taking of his vested property rights.”
Kennedy argued that because he owns that portion of the riverbed, he has the right to exclude people from wading or floating on the water above.
Landowners may not impede the public’s exercise of that right to access state waters, and some contact with the banks and beds of rivers is necessary for the public to recreate in the water, Justice Mike Wheat wrote in the majority opinion.
“In Montana, waters within the state are state property held in trust for the people. … To assert he may control use of the water overlying the section of riverbed he owns is misplaced,” Wheat wrote.
That portion of the ruling upheld a lower judge’s findings. However, the justices also reversed District Judge Loren Tucker’s ruling that the public can’t travel from Seyler Lane to the high-water mark of the Ruby River.
Tucker’s ruling established two types of easements: one between the fences that Kennedy had erected that the public could travel through, and a wider “limited easement” exclusively for county maintenance and repairs, but which the public could not use to access the river.
The Supreme Court ruled that the public road and the secondary easement for maintenance should be included in the public right of way.
The high court sent the case back to Tucker’s court to determine the width of the right of way, with instructions that recreational use may be a factor in the determination.
The justices also ruled the public can use a public road acquired through prescription — that is, by custom or long use and without the landowner’s permission— for purposes other than what it was used for when it was acquired. The uses of a public prescriptive roadway can change over time, and those other uses can be allowed, the court ruled.
“Foot travel over a roadway is, and has always been, a foreseeable use of the road surface as well as any shoulders, embankments and abutments supporting the roadway,” Wheat wrote. “Separate from the question of width, use of the road for access to the Ruby River is a reasonably foreseeable use of a public road right of way that crosses a river.”
John Gibson, president of the access group, said the ruling confirms that Montana streams are public resources, “and not the exclusive playground 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,” Gibson said in a statement.
Chuck Denowh, head of United Property Owners of Montana, said the decision erodes property rights and he urged an appeal to the U.S. Supreme Court challenging the constitutionality of the state’s stream access law.
“The court is essentially saying that the county government can give the public permission to enter private land if it is near a road. We have a term for that: trespass,” Denowh said in a statement.