12-Year Fight over Montana River Access Peters Out

HELENA, Mont. (CN) – A highly contentious 12-year battle over the public’s right to access the Ruby River in Montana finally is finished, as the deadline to appeal the Montana Supreme Court’s decision passed without further fight by private landowners.

John Gibson, president of the Public Land/water Access Association, said Thursday he was thrilled to learn late last week that the deadline passed for appealing the stream access decision. The case pitted his small group against a wealthy, out-of-state landowner, who in the 1990s started buying property along the Ruby River and restricting access.

“There was always a chance for more appeals, and even the possibility of them trying to get it into the federal court system. But that’s all over now,” Gibson said on Thursday. “This case points out that if you get involved in this stuff, you better be prepared for a long haul with lawyers, money, various appeals and protests.

“This is a milestone. It’s a rebuttal of the attempt of a very rich individual to control access to streams in Montana. He was defeated by a bunch of volunteers.”

The Ruby River is a popular brown trout fishery that meanders out of the Gravelly Mountain Range in southwestern Montana for about 40 miles. The Ruby is hemmed in by private property on both sides, but Montana’s stream access law guarantees public access to waterways from county roads and bridges crossing them.

In 2004, Gibson’s group sued Madison County, claiming that private property owners along Duncan Road, Lewis Lane and Seyler Lane erected fences in the public right-of-way along the county roads near the bridges to keep the public from accessing the river. The Public Lands/Water Access Association sought a ruling in Madison District Court that declared the general public had a right to access the Ruby River without interference from the adjacent landowners.

Atlanta-based billionaire James Cox Kennedy, who owns land adjacent to Seyler and Lewis lanes, intervened in the lawsuit as a defendant.

Judge Loren Tucker ruled that the public right-of-way on Duncan Road and Lewis Lane was 60 feet wide, which meant the adjacent landowners couldn’t interfere with public access. But he split on Seyler Lane, determining that since the public right-of-way was by prescriptive use, the public only had a right to use the roadway; however, the county had a “secondary easement” for bridge maintenance that was wider.

Gibson’s group appealed the Tucker’s ruling related to Seyler Lane. Meanwhile, Kennedy cross-appealed the the ruling for the public right-of-way width at Lewis Bridge, arguing that it constituted an unconstitutional “taking” of his private property without due process and just compensation.

As the case wound its way through the legal system, Kennedy donated $100,000 to the dark-money group Montana Growth Network. That organization spent $878,000 in Montana’s 2012 Supreme Court election, with one of its candidates – Laurie McKinnon – being elected to the bench.

In a 5-2 ruling January 2014 – with McKinnon in the minority – the Montana Supreme Court decided Judge Tucker incorrectly found that two separate interests exist in the Seyler Lane right-of-way, and remanded for a determination of the appropriate width. The court also ruled against Kennedy on the Lewis Lane issue, since his predecessor had expressly granted a public right-of-way to Madison County.

Perhaps more importantly, the court noted that under Montana law the state owns all waters in trust for the people and that a waterway owner is prohibited from excluding public use of that water.

“His lawyer told the Montana Supreme Court that he owns the bottom of the river, the water in the river and the air above the river,” Gibson recalled. “That’s not how our law works.”

This past July, Tucker decided the public easement for the Seyler Lane bridge extends five feet beyond the bridge abutments, so the public can use that right-of-way to reach the Ruby River.

Kennedy’s attorney didn’t return a telephone seeking comment. But Madison County – the original defendant in the case – is pleased if this saga, in fact, is finished.

“We hope it’s put to bed, but we’re still wondering; we haven’t received anything official,” said County Commissioner Ron Nye, who added that they reluctantly were drawn into the dispute. “We just had the luxury of owning the bridge on the road.”