Bucky Ryan

September 17, 2008

After numerous postponements, the Public Land/Water Access Association, Inc. (PLAAI or PLWA) will likely have its stream access case heard by the 5th District Circuit Court of Montana before the year is out. Barring legislative resolution in the interim, the precedent set in this case will guide future landowners' decisions to create private waters by fencing out the public, and may determine the future application of the Montana Stream Access Law.

James Cox Kennedy (Atlanta media millionaire of Cox Newspapers fame) has joined as a defendant and filed countersuit to PLAAI's original claim against Madison County for allowing Mr. Kennedy to limit public access to the Ruby River by fencing off access bridges. The dispute arose in 2003 when Mr. Kennedy erected electric fences and other impassable barriers to discourage public access along county bridges at Seylor and Lewis Lane. Kennedy's countersuit alleges that the county's failure to halt public access at county bridges on his property violates his constitutional rights to privately owned property by granting public access without compensation. He seeks a judgment enjoining the public from accessing the Ruby River at any of the county bridges along his 4,000 acre ranch.

The case at bar is the latest in a line of disputes arising when wealthy nonresident landowners attempt to bar public access in Western states traditionally offering unfettered public access. This stance is sharply contrasted with typical Montana landowners' willingness to grant public trespass by permission to hunters, fishermen, and other recreational enthusiasts. Though the case pertains only to Ruby River Access near sparsely inhabited Virginia City, the decision may prove a harbinger for the future of the notably progressive Montana Stream Access Law. Scholars also believe the decision will have implications for the virility and enforceability of the Public Trust Doctrine.

PLAAI is comprised of Montana anglers, hunters, and environmental advocates concerned with public exclusion from traditionally accessible state lands and watersheds. Siding with PLAAI are a number of environmental grassroots organizations determined to overcome Cox's significant financial and legal resource advantage to protect public stream access in Montana.

District Judge Loren Tucker heard pre-trial arguments on July 25, 2008 and issued deadlines for parties to present more evidence and information on several of the bridges in question. He continues to encourage lawyers to submit briefs as the trial approaches.

Sources:

Board of Madison Country Commissioners, Minutes, January 8, 2008, available at http://madison.mt.gov/agendamins/minutes/2008/comm08/c010808min.pdf (last accessed Sept. 5, 2008).

Nick Gevock, Bridge Battle, The Montana Standard March 21, 2007 available at http://www.mtstandard.com/articles/2007/03/21/state_top/20070321_state_top.prt (last accessed Sept. 5, 2008).

Pat Munday, James Kennedy: Millionaire Media Mogul Challenges Montana Stream Access, Ecorover, March 21, 2007, http://ecorover.blogspot.com/2007/03/ james-kennedy-millionaire-media-mogul.html (last accessed Sept. 4, 2008).

Public Land/Water Access Association, The Bridges of Madison County: Lawsuit Demanding Stream Access, http://www.plwa.org/viewissue.php?id=12 (last accessed Sept. 4, 2008).

Public Land/Water Access Association, Ruby River Pre-Trial Hearing: PLWA vs. Madison County, http://www.plwa.org/viewarticle.php?id=59 (last accessed Sept. 3, 2008).