Many Montana river lovers celebrated when the Montana Supreme Court ruled in favor of stream access on the Ruby River. But recent developments indicate that it may be a long time before the case is over.
After the Montana Supreme Court ruled in January that the public could use county roads and the adjoining right of way to access the Ruby River near the property of millionaire James Cox Kennedy, Kennedy petitioned the high court for a rehearing.
In the meantime, the plaintiffs, the Public Land-Water Access Association, are requesting a new judge.
Kennedy claimed the court had essentially created a “judicial taking” by retroactively changing state prescriptive easement law and had overlooked some facts.
On March 3, the Supreme Court refused a rehearing because Kennedy's petition didn't present evidence for his claims.
“This court has not retroactively changed state law… it has clarified the state of existing law on public road right of ways established by prescriptive easements,” wrote Justice Michael Wheat.
On Jan. 16, the Supreme Court, on a 5-2 vote, sided with the Public Lands Access Association and reversed the decision of Madison County District Judge Loren Tucker. Tucker had ruled that the county could use roads plus their adjacent rights of way for maintenance, but the public was restricted to staying on the road.
That meant fishermen could no longer legally use the right of way to get down to the high-water mark of the river.
The roads were based on prescriptive easements across private property, which means the state could show there was a history of steady public use on the roads but no public easement was formalized.
That's what allowed Kennedy to challenge public access.
The Supreme Court ruled that the public could use the right of way. Plus, they gave more weight to the fact that fishermen have been using that access route for years.
“The Supreme Court has said, ‘Yes, occasional recreational use isn’t good enough to establish a prescriptive easement. But when combined with other uses, it may count,'” said Public Land-Water Access Association attorney Devlan Geddes.
The Supreme Court sent the decision back to Tucker to rule on the width of the prescriptive easement so the case isn't over.
The Public Land-Water Access Association has asked the Supreme Court to assign the case to a new judge, but Kennedy is fighting to keep Tucker.
“The width has to accommodate all the uses that the public would need, but it's up to the judge to determine what that is. We had two bad judgments with Tucker so we're asking for someone else,” said PLWA president John Gibson.
Gibson said he didn't know when the Supreme Court would make that decision.