Court upholds public access to waterways


HELENA, Mont. - The state Supreme Court says a landowner's claims that he can control access to a portion of the Ruby River don't hold water. On Thursday, the court rejected James Kennedy's appeal of a lower judge's decision. The ruling affirms the constitutionally protected right of public access to waterways. Kennedy had argued that because he owns the riverbed underlying the river, he has the right to exclude people from wading or floating on the water. Montana's Constitution says the waters within the state are state property held in trust for the people. The justices said in the ruling that landowners may not impede the public's exercise of that right to access state waters. The case looks at access to the Ruby River from a bridge on Seyler Lane, just south of Twin Bridges. The Public Land and Water Access Association (PLWA) said the Supreme Court's decision is a victory for the public trust. "These resources we have -- our wildlife, our fisheries, and things like that -- are valuable," explained John Gibson, president of PLWA. The PLWA filed the suit about 10 years ago after they asked Madison County Commissioners to have Kennedy take down a fence blocking the river on his property. "According to the Attorney General and the stream access law, we couldn't obstruct access to the river," Gibson said. The case made it to District Court, and then to the Montana Supreme Court. "His lawyers said, 'My client owns the bottom of the river, he owns the water in the river, and he owns the air above the river, and no one can be on this river when it crosses his property without his consent,' and we challenged that," Gibson said. Gibson said the Supreme Court made the right decision. But Director of Applied Programs at the Property and Environment Research Center (PERC) Reed Watson said this is not the victory that appears on the surface. "The concern here is that the Supreme Court that the legislature has gone too far in eroding private property rights in the name of public access," Watson explained.

The PERC filed an Amicus brief, or friend of the court brief, in support of Kennedy, describing the public benefits of private restoration efforts. Watson said Kennedy invested millions of dollars on the stretch of the Ruby River that runs through his property in order to improve the river habitat. "The primary concern is that this decision sends a signal to other private landowners throughout the state that says if you invest in stream restoration or wildlife improvements or environmental stewardship generally, you may lose some of your property rights," Watson said. Watson said this decision will hurt , not help, people trying to use the river, explaining "it discourages private landowners from investing in stream restoration." But John Gibson with the PLWA said this right is written into the Montana Constitution, and it's here to stay. Gibson explained he believes the Montana Supreme Court's decision will dissuade landowners from filing similar suits in the future, while Watson with PERC said it's time to start questioning the stream access law in general.