Our Stream Access is in Jeopardy!

April 23, 2013

Our Stream Access is in Jeopardy!

Our Stream Access is in Jeopardy!

By: James Muhlbeier

Here’s the key info
• James Cox Kennedy own property along the Ruby River and has successfully challenged Montana’s Stream Access Law in The Madison County Court.
• There is Montana Court Hearing over Stream Access Appeal by the State to fight Mr. Kennedy on April 29th 9:30 am at Montana States Strand Union Building (SUB).
• I have applied for a permit to gather outside of the Strand Union Building (SUB) and encourage other to join me around 8:30am to show support for our Stream Access rights
• For more information continue reading or Contact James Muhlbeier @ Crushmuhlbier@gmail.com or Montana Troutfitters

James Cox Kennedy (Forbes 61st richest man in American) is attacking Montanans rights to the rivers and streams in the state. Mr. Kennedy has filed law suits against the State of Montana concerning our stream access laws that allows Montanans access to the streams and rivers across Montana. Recently Kennedy won a case that closed down access through the public right of way to Seyler Lane Bridge and challenges Montana’s Stream Access Law. Montana’s Stream Access Law makes Montana recreationally friendly.
Montana’s Stream Access law gives Montanans access to rivers and streams across the state. Montana Fish Wildlife and Parks gives the following information on the stream access law
“Under the Montana Stream Access Law, the public may use rivers and streams for recreational purposes up to the ordinary high-water mark. Although the law gives recreationists the right to use rivers and streams for water-related recreation, it does not allow them to enter posted lands bordering those streams or to cross private lands to gain access to streams.”
The most common way this stream access is utilized is off of Bridge and Road right of ways. When a road is built the government (Federal, State, or County) has to purchase an easement from the side of the road. Those easements are paid for with our tax payer dollars and open to the public. From the right of way you can step directly into the water which is deemed not to but owned by the property owner but rather by the public of Montana. This applies all the way up to the high water mark or essentially where the vegetation stops growing or where debris from high water is seen. This give recreational user’s access to a lot of water that is otherwise unavailable.  This law is one of the things that helps make Montana so special to recreationist. It separates us from places like Wyoming and Colorado where the streambed is privatized. In those states you are not allowed to wade through stream beds unless government owned. You are not even able to drop an anchor in the river as you float.
Back to Mr. Kennedy’s case in 2004 Mr. Kennedy fenced off the three bridges on his property and strung electric fences across The Ruby.  In response 200 recreationists in turn floated the river to draw attention the illegal action Mr. Kennedy had taken. Following the float the organization Public Land Water Association (PLWA) brought Kennedy to court and in 2008 won the case. House Bill 190 passed in the 2009 legislature confirmed that the public has access to surface waters by public bridge or county road right-of-way. HB 190 was designed to strengthen our Stream Access Law. PLWA summarizes the bill:
“The Department, in cooperation with the affected landowner and county, is responsible for providing public passage around or through a fence preventing such access. A typical access feature would be a stile, gate, roller, walkover, or wooden rail fence.”
House Bill 190 on top of other many other prior court rulings of other property owners challenging stream access helped solidify Montana’s Stream Access Law. So it should be set in stone right?  Why am I even talking about this?
Mr. Kennedy’s side has some precedence that puts our Stream Access in jeopardy. Not at the local or state level but at the federal level. None are more threatening than the Supreme Court of the United States. Montana drew the Supreme Courts attention when the state tried to collect tens of millions of dollars in rent from a utility company called PPL that owns dams on certain rivers. PPL and the State of Montana went to court.  In a 9-0 decision in PPL vs. Montana, the Supreme Court basically struck down the legal theory Montana used to assert rights in stream beds. What that essentially does is creates precedence in the highest level of court against our stream access law. In summary in the Supreme Courts view Montana can’t proclaim possession-type control over stream beds it doesn’t actually own.. The scary thing is, if Kennedy has his way on the Ruby River, it could set a legal precedent for access in the rest of the state and the dominoes will fall until our stream access is gone.
There will be a crucial Montana Supreme Court hearing in Bozeman, April 29, in the Strand Union Ballroom. The oral arguments will start at 9:30 a.m. and will conclude that morning. The Montana Supreme Court will consider The Madison County Judge who ruled in Kennedy’s favor was lawful when he ruled that the public cannot use certain county bridges to access our streams. If The Montana Supreme Court sides with the Madison County Judge, then it will be so long Montana Stream Access rights. If recreational users of our public waters can afford time from work to attend the hearing or anybody tired of being stepped on by the 1% for that matter, it would be very helpful to our fight against what wealthy non-residents are trying to do throughout Montana.
Two groups have entered into the lawsuit on Kennedy’s side: PERC- the Property and Environment’s Research Center headquartered in Bozeman, and the United Property Owners of Montana. PLWA and Trout Unlimited have thrown their support behind the State and Montanans and our rights. PLWA sends a message via their website “All of our groups need to send a clear message that “the rights of the many shall not be trampled on for the benefit of the very few.” Even if The Montana Supreme Court ruled in favor of Montanans the likelihood that it will be the battle over Stream Access over is slim. Kennedy is not a dumb man and realizes he has a better shot with the US Supreme Court due to their previous ruling. That and he realizes that supporters of Montana’s Stream Access don’t have nearly as deep of pockets as he has. He plans on taking this to the Ninth round when we are drained before he goes for the knockout. PLWA is asking for support they had a budget of 150,000 dollars (all of which stem from donations) and they have spent 350,000 dollars. The biggest supporter for our rights is already in substantially in the hole and we are still only in round three of the fight.  Unlike Kennedy and his estimated 6 Billion dollars plus in worth the good guys have a limited budget.
What I really don’t understand is how a person could see themselves so entitled to what they desire that they could take so much from so many. Where is everyone supposed to go if Mr. Kennedy has his way? Those fisherman who don’t have boats jam into the few public fishing accesses, those who do float nonstop with no rest, no pee or lunch breaks. Are we to turn into Wyoming and Colorado? What about the economic impact it will have? How much will the $983 million spent on angling and hunting  in the state drop? How many of the 16,515 jobs created will be lost? I keep asking myself how this man cannot look past himself and see the rest of us 99% that aren’t rich and can’t buy our own fishing and hunting ranches. Are we invisible? I plan on standing up for my rights and showing my support for the state at The Strand Union Building at Montana State University on April 29th. I plan on letting my voice be heard. I don’t care if you fish, float in tubes or hunt or hike it is time to stand up for ourselves.

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