The Montana Supreme Court heard three sides of a Ruby River stream access battle on Monday.
As part of Montana State University’s Law Day 2013, the court heard oral arguments from attorneys representing Public Lands Access Association, Madison County commissioners and landowner James Cox Kennedy.
The oral arguments took place in MSU’s Strand Union Ballroom. The ballroom was standing room only as anglers and landowners joined students and attorneys to take in the hearing that could change stream access laws and affect how easements cross private property.
The Supreme Court hearing addressed an appeal made by the Public Lands Access Association to a decision made by District Judge Loren Tucker in 2012 that affected how the public could access the Seyler Lane Bridge located on Kennedy’s property. Tucker ruled public use of Seyler Lane Bridge didn’t guarantee public use of the Ruby River from the bridge.
The bridge is a prescriptive easement, meaning the public has a history of using the bridge. Seyler Lane was created by a public easement when the original landowner Bud Seyler allowed the public to use the road. The Public Lands Access Association’s attorney Devlan Geddes said the prescriptive easement had historically been used by anglers and workers to access the Ruby River.
Tucker ruled that the public could continue to use the road but only the paved surface was public. Only the county could use the adjacent right-of-way area to perform maintenance to the road and the bridge. Anglers could not access the high-water line of the river without trespassing.
Geddes argued this restriction to anglers and recreationalists violated the Stream Access Law of 1985 that allows people to access waters by staying within the ordinary high-water marks of rivers and streams. The attorney also says the ruling violates the 2009 law stating the public may access streams and rivers by using public roads. According to Geddes, the width of the easement needed to be expanded to not only include the paved area but also allow access to the high-water mark and then the easement should be open to any type of public use.
Kennedy filed a cross-appeal claiming that both of those laws that allow public access to his land are an unconstitutional taking of his property.
His lawyer, Peter Coffman, challenged Montana’s stream access laws and asked to overturn historic court rulings that helped establish these laws. Coffman said the state has been in the wrong for almost thirty years by allowing anglers to wade in the waters of the Ruby River.
According to Coffman, Kennedy owns the river streambed and the water above it. The attorney went onto to declare the state was taking that land without providing any type of compensation, which breaches the U.S. Constitution.
Justice Patricia O’Brien Cotter interjected after Coffman’s statement and asked the attorney if he was declaring part of the Montana Constitution unconstitutional.
Cotter explained the state constitution declared all waters are property of the state and for use by its people.
Coffman said that part of the constitution is, in fact, unconstitutional since the state has included streambeds and banks in the definition of waters.
The Ruby River is considered a non-navigable river since boats didn’t use the river when Montana gained statehood. Since the river has been deemed non-navigable, that means the landowner owns the land underneath the river and on larger rivers the state owns the streambed.
In response to Coffman’s arguments, Geddes told the justices that the question of unconstitutionality had not been introduced in lower courts. He said it was inappropriate to include such a claim now.
State attorney Matt Cochenour agreed with Geddes and said Coffman shouldn’t be trying to undo decades’ worth of laws.
“We shouldn’t be upending 30 years of law with something the district court didn’t get a chance to rule on,” Cochenour said. “When Kennedy started buying land in Montana, this court had already ruled that the stream-access law was constitutional. The remedy for that isn’t to wait 20 years and try again.”
Justice Mike Wheat presided over the hearing as Chief Justice. Chief Justice Mike McGrath had recused himself from the hearing since he had argued against Kennedy in a previous case when he served as attorney general. Justice Brian Morris also recused himself from the hearing. District Judges Kurt Krueger of Silver Bow County and Mike Menahan from Lewis and Clark County replaced McGrath and Morris.
The Supreme Court Justices expect to return a decision on the hearing in the next few months.