Your Montana Public Radio
Wed May 22, 2013
Bridge easement lawsuit could impact MT’s stream access law
A lawsuit concerning a bridge on a county road could lead to major impacts on Montana’s stream access law in a case pitting private property advocates against prominent public access groups.
The state Supreme Court is considering the lawsuit over easements now. Atlanta-based media mogul James Kennedy owns a sizable piece of property on the Ruby River. Several county bridges cross the river on his land and a district court judge found it legal for Kennedy to fence off access to the river on one of those bridges—because of the type of ‘prescriptive easement’ on the bridge.
Public lands access advocates appealed that ruling to the Montana Supreme Court. Now, before the high court, Landowner James Kennedy is arguing a U.S. Supreme Court Decision on a case between Montana and PPL Montana from last year means the state’s stream access law should be thrown out or limited.
President of the United Property Owners of Montana Marc Robbins, said the U.S. court decided the state only owns the banks and beds of rivers if the river was commercially navigable at the time of statehood.
The Ruby River and other small streams like it to not meet that criteria.
“We feel that the state erred in its taking of the stream beds years ago,” Robbins said, “and this PPL ruling definitely turned the tides of the basis for what stream access was founded on.”
Montana Trout Unlimited Executive Director Bruce Farling believes these issues were hashed out by the State Supreme Court before the Stream Access law was established in the 80s.
He said the court decided the state constitution says the public owns the state’s water and they should be able to use it.
“They told the legislature at that time, they said ‘look, the public should have access on these streams to be able to recreate on them, irrespective of whom owns the bed and bank,’” Farling said.
The state supreme court has not made any decision on the case.