After hearing oral arguments Monday in Bozeman, the Montana Supreme Court will consider a case touted as a stream-access challenge but which may redefine how public easements can cross private property.

For Montana State University’s Law Day 2013, the Supreme Court heard a Public Lands Access Association attorney defend his case against Madison County commissioners and Madison County landowner James Cox Kennedy.

MSU’s Strand Union Ballroom was standing-room-only as hundreds of sportsmen and landowners from nearby counties swelled the usual crowd of students and attorneys to hear the case that could affect both stream and land access.

Public Lands Access Association attorney Devlan Geddes said the case addressed two existing public rights: the right of Montanans to use the state’s streams below the high-water mark and the right to use Montana’s public roads to access those streams.

“This all relates to one overarching question: May Montanans use the Seyler Lane right-of-way, a prescriptive right-of way, to access the Ruby River?” Geddes said.

Geddes filed his case in 2004 after association members were denied access to the Ruby River by electric fences and no trespassing signs on three Madison County bridges. Geddes sued the county to have the barriers removed.

Kennedy owns land adjacent to two of the bridges and had erected the electrical fences, which he later removed. He joined the lawsuit opposing the Public Lands Access Association.

Seyler Lane was created from a public easement when original landowner, Bud Seyler, allowed people to travel across his land. Road easements usually include right-of-way land on either side to allow for maintenance and, in this case, barrow pits.

Geddes argued recreationalists and workers had historically used the right-of-way to get to the land below the high-water mark of the Ruby River.

District Judge Tucker ruled that the public could use the paved center part of the Seyler Lane easement, but that only the county could use the adjacent right-of-way for maintenance. That means fishermen can no longer access the high-water line without trespassing.

“We’re saying, once the width (of an easement) is established, it can then be used for all lawful public purposes,” Geddes said. “This is the same reasoning from the supreme courts of Idaho, Colorado and Wyoming.”

Kennedy’s attorney Peter Coffman drew several questions from the justices when he argued that not only was Tucker right in his easement ruling, but that the state of Montana has been wrong for decades by allowing anglers to wade in streams like the Ruby River.

The Ruby River is classified as a non-navigable stream since boats weren’t using it when Montana became a state. That means landowners own the land below the stream; on larger rivers, the state owns the streambed.

Coffman said Kennedy owns the river streambed and access to the water above it, so the state was taking the land when it gave Montanans the right to use state streams. That violated the U.S. Constitution.

Justice Patricia O’Brien Cotter asked if Coffman was asking the court to declare part of the Montana Constitution unconstitutional.

“All waters are the property of the state for the use of its people,” Cotter said. “Your position would reject that provision of the constitution.”

Coffman said the court has included the streambed and banks in that definition, which is unconstitutional.

In response, Geddes and state attorney Matt Cochenour said that Coffman hadn’t brought up the constitutional argument in the lower court, so it couldn’t be introduced in an appeal.

“We shouldn’t be upending 30 years of law with something the district court didn’t get a chance to rule on,” Cochenour said. “When Kennedy started buying land in Montana, this court had already ruled that the stream-access law was constitutional. The remedy for that isn’t to wait 20 years and try again.”

Justice Mike Wheat presided over the case because Chief Justice Mike McGrath and Justice Brian Morris recused themselves. As attorney general, McGrath argued against Kennedy in a previous case. District judges Kurt Krueger of Silver Bow County and Mike Menahan of Lewis and Clark County replaced the justices.

Laura Lundquist can be reached at 582-2638 or Follow her on Twitter at @llundquist.


The original version of this story said Kennedy claims to own the streambed and water above it. However, Kennedy only claims to own the streambed and access to the water above it.

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