Maintaining Montana’s Open-Access Heritage
By Brent Zundel
For the MSU Exponent
September 20, 2012
Montanans cherish our hunting and fishing heritage almost as much as we resent seeing California license plates parked at the trailheads to our favorite sagebrush hill or river hole. In this case, though, the out-of-stater is James Cox Kennedy, an Atlanta media mogul worth around $6.5 billion.
Kennedy’s long and complicated relationship with Montana centers mostly on eight miles of riverfront property on the Ruby River, a small tributary of the Beaverhead River in southwestern Montana.
In 2005, Missoula-based New West, an online news source, reported that “well-reinforced posts and barbed wire and electric fencing” had been installed to block stream access at Seyler Lane. Since then, Kennedy has refused to open the bridge access site on Seyler Lane.
Despite his delusions, the roads across the Ruby are county roads and bridges with a standard 60-foot public right-of-way that has been established through “regular, historical and non-contested public use.” This fits the definition of a prescriptive easement to a T.
At one point, Kennedy even strung electrified wires across the Ruby to fry unsuspecting floaters bobbing down what he imagines is his own personal stream.
In this drawn-out battle — raging since 1996 — Kennedy has attempted to defy Montana’s stream access law, which is arguably the strongest in the nation. He’s further disregarded the bridge access statute, which an overwhelming bipartisan majority passed during the 2009 Legislature to confirm that Montanans can legally access surface waters by public bridge or county road rights-of-way.
Kennedy has further claimed that the fragile Ruby could not support the rampant fish-catching and boot-stomping of public access, but Montana Fish, Wildlife and Parks has proven time and again that they can successfully manage fisheries for both recreational use and pristine aquatic habitat. For example, the Madison and Beaverhead Rivers — the latter of which the Ruby actually dumps into — both have strict fishing regulations that protect exceptionally popular fisheries.
In a conflict of interests any Montanan could see through, Kennedy owns the exclusive 3,200-acre Crane Meadows Lodge, which sits within a stone’s throw of the Ruby and advertises “private water … lease[d] for the exclusive use of our guests.”
This May, District Court Judge Loren Tucker sided with Kennedy, artificially constructing a two-easement fallacy — a wider one for the county and a road-width one for the public. The implications here should seem silly even to a judge: A motorist who pulls over to change a flat would be trespassing, as would schoolchildren waiting for a bus, despite using a public road and bridge.
The most damning decision the judge made was that a history of recreational use — even if it has endured for a century — is not enough to justify a prescriptive easement.
If this faulty ruling stands, it would mean that Montanans would be breaking the law for something we’ve been doing for decades — simply accessing streams at a county bridge. Montana’s Public Land and Water Access Association has appealed the decision to the state supreme court.
In a surprising display of audacity, Kennedy’s lawyers have filed a cross-appeal, seeking to eliminate Montana’s bridge access law and to further undermine our stream access law.
The efforts of one man to overrule a state’s legislature and its supreme court can’t help but dredge up memories of the copper collar under which Montana suffered so long. Kennedy is the latest in a long string of megarich landowners who have attempted to warp Montana’s public access laws to suit the whims of what critics have dubbed a “billionaire boys club.”
In 2005, he even sent a letter to the University of Montana School of Journalism, threatening to withhold donations (which had been nonexistent to that point anyway) until out-of-state landowners were “more appreciated.”
Kennedy’s contempt for Montanans and the public trust doctrine couldn’t be clearer: He is doing nothing short of denying the public the right to access our own property. Clearly, in Montana access to our unequaled wild places is something that must be fervently protected.