BOZEMAN — In the latest maneuver in a complicated lawsuit that stretches back to 2004, a media executive from Atlanta wants the Montana Supreme Court to rule on the legality of Montana’s 1985 Stream Access Law.
The state Supreme Court held a public hearing Monday in the Strand Union building on the campus of Montana State University in Bozeman. The case involved an appeal by the Public Land-Water Access Association, or PLWA, on a ruling made by District Judge Loren Tucker. Tucker’s ruling denied the public access to the Ruby River from a bridge on Seyler Lane near Twin Bridges.
In a cross appeal, Peter Coffman, the attorney for James Cox Kennedy, CEO of Cox Enterprises, brought the legality of the 1985 law into question. Coffman said that law ran counter to earlier Montana court rulings, as well as to established federal law.
The appeal before the Supreme Court on Monday was from a lawsuit originally filed in 2004 by the PLWA against Madison County over access to the Ruby River, from three bridges, two of which adjoined Kennedy’s property. Kennedy had strung fencing that prevented access to the river from the bridges on Seyler Lane and Lewis Lane. Kennedy intervened in the case on behalf of the county.
The other bridge in question, not on Kennedy’s property, was on Duncan District Road.
The court ruled in favor of the PLWA in 2008 for two of the bridges, Duncan District Road and Lewis Lane, saying the public had a right to access the river from the bridges because the bridges were on established county roads. The case prompted the passage of the law by the Montana Legislature that guaranteed bridge access from established county roads.
However, in 2012, Tucker ruled against the PLWA in the Seyler Lane portion of the case. Seyler Lane is a road by prescriptive easement, in other words, through historic public use, and Tucker ruled that access to the river for recreational use from the bridge on that road was not guaranteed.
This led to the appeal by the PLWA, and then the cross-appeal from Kennedy on the Lewis Lane portion of the case.
At the hearing on Monday, PLWA’s attorney Devlin Geddes argued that the public should have access to the Ruby River from Seyler Lane. He argued, counter to Tucker’s ruling, that the public should have right to more than the surface of the bridge, thus allowing it to reach the high-water mark of the river and have access to the river for recreational use.
That access, according to Geddes, should be gained for variety of reasons, including the certificate of survey, the county’s maintenance of the bridge, cattle trails, and through the public’s historic use for recreational purposes.
Coffman, on the other hand, argued that a public easement to use waters above “private streambed” was an invasion of private property. The attorney for Kennedy argued that “Montana cannot retroactively confiscate the private right to control who wades and floats on a privately titled, non-navigable stream.”
Coffman said the right to exclude the public from private property is a right that can’t be taken away. He went on to argue that the “state can’t change the law to retroactively take riparian rights that are already vested.”
Kennedy’s attorney based his argument on federal law, as well as state law prior to 1984, specifically the 1925 Montana case, Herrin versus Sutherland, which ruled that a landowner had the right to the airspace above his land.
Two justices had recused themselves from the case, Justice Brian Morris and Chief Justice Mike McGrath. And one of their replacements, District Judge Kurt Krueger of Butte, questioned Coffman by asking how he expected the court to overturn over 25 years of established law.
Coffman countered by saying that the U.S. Supreme Court has ruled “there is no expiration date on the taken clause. If the state acted unconstitutionally in taking the land, then that action is void … the passage of time does not fix it.”
The court specifically addressed the two 1984 cases that are the basis for the 1985 Stream Access Law asking Coffman, “You’re asking us to overturn Curran and Hildreth and also declare the Stream Access Law unconstitutional?”
Coffman responded, “That’s correct.”
Justice Patricia Cotter introduced the water rights written into the state Constitution by asking, “Aren’t you asking us to declare a portion of Montana Constitution unconstitutional, (Article IX, sec III)?”
Coffman said that provision should not extend to the bed and the banks and to do so is “unconstitutional,” referring to the U.S. Constitution.
In his rebuttal, Geddes said it was unfair for Kennedy to bring in the constitutionality of the 1985 law at this stage of the appeal.
Geddes said, “(Kennedy’s) attacks of Hildreth and Curran, and almost 30 years of settled expectations, shouldn’t be considered by this court because it was not raised below.”
Susan Swimley, the attorney for Madison County, spoke only briefly at the appeal hearing. She said Madison County’s interest in the case only extended to the county’s right to maintain the bridge and the road leading to the bridge, as well as to the right for the public to travel on the paved portion of the road and the bridge.
Swimley said, “(Madison county) has not taken a position on any of the other possible arguments in this case.”
Acting Supreme Court Chief Justice Mike Wheat said the court would take the case under advisement and likely have a decision within the next two months.
— Reporter Francis Davis can be reached at firstname.lastname@example.org