O’Dell Ck. Ranch…Ennis, Mt. Dam dug with back-hoe blocking off O’Dell Ck. Outlet from entering Madison R. Electrified rope strung around dam on O’Dell Ck. ranch View from top of dam showing where O’Dell Ck. flowed into Madison R. before being plugged up by O’Dell Ck. Ranch.
View looking back from Madison R. into dried up channel from O’Dell Ck. Outlet. Water used to flow freely into the Madison here before being dammed up and altered by O’Dell Ck. Ranch.
A berm was piled up along river’s edge blocking the flow, and also blocking the view of the dam from the public.
The Public Land/Water Assoc. is a citizen group organized and operated under the Montana Nonprofit Corporation Act. The following is a summary of stream access legal fights in the State of Montana and their outcomes. It is usually a fight between David and Goliath…the everyday Montana citizen up against wealthy, out-of-state landowners trying to push the little guy around and show off their muscle with money and high powered lawyers.
I know…not as exciting as some dude in a funny hat holding up a lunker brown trout and grinnin’ from ear to ear. But if you enjoy fishing, hunting, hiking and other outdoor activites it’s worth a read. (it’s a two cup of coffee article).
PLAAI / PLWA History of Montana Stream Access Law
History – Rivers and Streams February 11, 2014.
The Best in the West: Stream Access in Montana The Founding Cases through the Current Battle for Access at Bridges For the Public Land / Water Access Association By Brent Zundel.
Whether you are fly fishing one of the state’s blue ribbon trout streams, kayaking or canoeing through its cold, clear waters, or just “tubing” a lazy stretch of river with friends, Montana’s stream access laws are the envy of the nation, the “best in the west.” But it was not always this way. The benefits that we enjoy today stem from the tireless work of many individuals who began fighting for better public stream and river access in the late 1970s.
This group of dedicated citizens — mostly living in or around Butte at the time — left a legacy of the best and most egalitarian stream access law in the country. Since those early days, the mindset favoring expanded access has taken root across the state in the minds of its citizens. Many groups have fought to strengthen or protect stream access rights throughout the intervening decades, and members of the Public Land and Water Access Association (PLWA) have inherited much of the responsibility for preserving these cherished traditions.
Prior to 2007, this organization was known as the Public Land Access Association, Inc. or “PLAAI.” After the open range disappeared, fences and barriers in and around stream, rivers, and bridges have sometimes barred the way for fishermen and recreationalists. Landowners legitimately claimed that these were necessary to control cattle, but they were also starting to realize that “private” blue ribbon trout streams could prove extremely lucrative and valuable as a real estate amenity. In the late 1970s, reports of angler harassment on the Dearborn and Beaverhead Rivers in Western and Southwestern Montana reached a crescendo.
Butte fishermen Jerry Manley and Tom Bugni stepped forward to take on the battle. In 1979, the pair met with a young Bozeman lawyer named Jim Goetz at the Steer Inn near Three Forks. Goetz suggested that they form a statewide organization dedicated to expanding stream access. Just starting his law career at the time, Goetz agreed to represent the new organization for half the going rate. Tony Schoonen joined the group shortly thereafter, and the Montana Coalition for Stream Access was born.
At the time, Montana stream access law appeared straightforward: “The streambed between low water marks on navigable streams belonged to the state in trust for the people of the state” (Hunter). Title on adjacent lands belonged to the landowner, but this title was subject to easements acknowledging the public’s common law right to navigation, fishery, and commerce (Gibson). However, landowners with property bordering streams that did not fit the federal definition of “navigability” owned up to the middle of the stream with no right to public access.
All that changed with two groundbreaking legal victories in 1984. The Montana Coalition for Stream Access brought a pair of historic cases to district court and, from there, to the state Supreme Court: Montana Coalition for Stream Access, Inc. v. Curran and Montana Coalition for Stream Access, Inc. v. Hildreth. Usually referred to as Curran and Hildreth, these decisions laid the groundwork for stream access in the state.
The Curran Case: Public Trust Doctrine and the Montana Constitution.
The Dearborn River tumbles out of a gorge in the Lewis and Clark Range and, before reaching its confluence with the Missouri some 70 miles later, passed through six to seven miles of Dennis Curran and his Curran Oil Company’s land. Claiming ownership of the banks and streambed — and thus the right to restrict public access — Curran harassed and interfered with fishermen and floaters on the Dearborn, even running over a recreationalist’s inflated raft with his vehicle in one instance according to witnesses. Members of what would soon become the stream access coalition filed suit against Curran in 1977, and the case wound its way to the Montana Supreme Court in 1984. Using the “log-floating test,” the court determined that the Dearborn was navigable when Montana entered the Union in 1889 because it had previously been used to move logs and railroad ties downstream.
Under the federal definition of navigability, the state owned the riverbed and held it in trust for the good of the public (Curran). Perhaps the most crucial concept to emerge from the court’s decision was a broad definition of navigability of state waters: “any surface waters capable of use for recreational purposes are available for such purposes by the public. . . .” (Curran). The court based its reasoning on the public trust doctrine and Montana’s 1972 Constitution. The public trust doctrine, a concept dating back to Roman times, posits that the state must maintain certain resources, like “navigable waters and soils under them,” for the public’s use (Illinois Central Railroad). Montana’s 1972 Constitution states that “all surface, underground, flood and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law” (Montana Constitution). Importantly, the court held that “any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for nonrecreational purposes” (Curran).
The justices decided that if a river or stream can be used for recreational purposes, then that alone suffices to designate it as a “navigable” river for recreational uses. Further, they ruled that anyone may use the stream up to the normal high water mark for recreational purposes, and he or she also has the right to portage around stream barriers in the least intrusive manner.
The Hildreth Case: Recreational Use and Navigability.
The second case to lay the framework for the Stream Access Law dealt with another tributary of the Missouri: the Beaverhead River. Along its 69-mile length, the Beaverhead passed through about one and one-half miles of land owned by Lowell Hildreth. A second request took the fledgling coalition by surprise: A group of fishermen and outfitters asked the organization to take on a lawsuit against Hildreth, alleging that he had installed a fence blocking access to the river from the bridge and had planned to install a cable across the river in preparation for blocking floaters on the opening day of fishing season.
In 1981, the coalition filed a complaint against Hildreth. A few weeks after deciding Curran in 1984, the court ruled on Hildreth, its companion case. Their reasoning upheld the Curran case but did not address navigability for title, instead relying entirely upon the recreational use test. The justices advised that determining “navigability for title is not necessary or proper when the issue is one of navigability for use” (Hildreth). In short, if the stream is navigable for recreational purposes it can be used up to the high water mark without regard to ownership of surrounding lands.
The 1985 Stream Access Law: Within months of the historic Curran and Hildreth decisions, nine bills concerning stream access were introduced in the 1985 Montana Legislature. Developing legislation to codify the court’s reasoning into law was crucial. Tony Schoonen and Jerry Manley, both original members of the Montana Coalition for Stream Access and long-time members of the PLWA Board of Directors, were assigned to a sub-committee to help draft the law. A diverse group of legislators, landowners, stockmen, farmers, recreationalists, hunters, and anglers worked together to develop House Bill 265. In addition to the stream access coalition, members from organizations like the Montana Stockgrowers Association and 17 others helped develop the legislation. That bill, notable for its bipartisan support, eventually became the treasured Stream Access Law that Montanans continue to enjoy. The law distilled the court’s reasoning, based on the Montana Constitution and the public trust doctrine, into the West’s strongest law protecting public access.
In the most basic sense, the Stream Access Law allows full public use of most perennially flowing waterways between the ordinary high water marks. If a stream is capable of being used for recreation, it can be so used regardless of underlying streambed ownership. Recreationalists cannot cross private land to enter the river, but once in the river, they can portage around natural and man-made obstacles in the least intrusive manner.
In 1985 Montana senator and Martinsdale rancher Jack Galt, along with nine other landowners, asked a state district court to declare the new law unconstitutional. After the district court found against Galt, the case went to the Montana Supreme Court, where the justices agreed with the district court and reaffirmed their Curran and Hildreth decisions, stating that the public does have a recreational access right to use the state’s waters.
However, the court invalidated small parts of the newly passed law. The court held that some subsections, like those which provided for a right to build duck blinds and boat moorages, to camp overnight, and to hunt from below the high water mark, were too broad. The most important components of the law, however, remained untouched; in fact, they were strongly reaffirmed.
The next year, on March 26, 1986, Gene Hawks, a former Gallatin National Forest supervisor, founded Public Lands Access Association, Inc. — PLWA’s first name — as a nonprofit corporation. The nine individuals who attended the meeting at the Bozeman Library became the original board of directors. At first the group focused on public lands issues, but their approach soon expanded to include rivers and streams. Membership with the stream access coalition also overlapped — as Schoonen said, “We’re all fighting the same fight.”
Challenges to the Stream Access Law: Later challenges to the Stream Access Law emerged, such as the 2001 Madison v. Graham, a case that sought to overturn the entire law. Instead, the case was dismissed in district court. The Montana Supreme Court held that touching the streambed underneath the water, by a wader or a boat’s oar, for example, “causes no more interference with private property rights than does a floater” and is thus permissible under the Stream Access Law (Harmon). The U.S. 9th Circuit of Appeals affirmed the district court’s dismissal.
At the same time, The Mountain States Legal Foundation, a conservative organization funded in large part with money from Coors Brewing Co., had begun soliciting disgruntled landowners hoping to sue Montana in federal court. They filed suit in 2000 on behalf of landowners on the Ruby and Stillwater Rivers and the Madison tributary Odell Creek in an effort to destroy the Stream Access Law. The case was dismissed in district court and dismissed by the 9th Circuit of Appeals. Finally in 2003, the U.S. Supreme Court refused to hear their appeal and let the 9th Circuit decision stand. The nation’s highest court shot down a very broad challenge.
The Supreme Court’s refusal to hear the appeal is tantamount to finding against the appealing party and should signify that the law is safe from future challenge. Afterward, former Montana Attorney General Mike McGrath said, “I’m glad this issue is finally put to rest.”
Through the constant vigilance of dedicated sportsmen and recreationalists, Montana’s Stream Access Law has withstood every challenge from those who would deny the public access to their own lands and waters.
Stream Access at Bridges: The Current Battle for Public Waters
With the Stream Access Law well established, the battle turned to access at bridges and is being waged primarily by out-of-state landowners. Hundreds of river miles in Montana flow through private property, and sometimes the only access point is a bridge crossing. Anglers and recreationalists rely on these bridges to get to public streams and have done so, in many cases, since the bridge was built. In some instances, people who grew up fishing a certain river now found they could no longer even get on the river. As wealthy out-of-staters bought up ranches along prime trout streams and leased exclusive “trespass rights” to commercial outfitters, more and more average Montanans were getting locked out. Some landowners “erroneously are trying to lay claim to a public resource,” Dick Oswald, a Montana Department of Fish, Wildlife, and Parks fisheries biologist in Dillon, said as the conflict was intensifying in the late 1990s. “I suspect they didn’t do their homework before they bought land. This is America, not feudal Europe.”
At the forefront of the conflict over stream access at bridges runs the Ruby River, a small tributary of the Beaverhead that flows through four iconic, pine-covered mountain ranges in Madison County. Access to the Ruby has been challenging since early problems in 1995. Those problems persisted, and in 2000 another Montana Attorney General Joseph Mazurek issued an Opinion on stream access at bridges specifically to address the controversies stemming from access at the Ruby River. In it, he upheld the legal concepts for which PLWA and other groups have been fighting for years. In essence, Mazurek held that the public “may gain access to streams and rivers by using the bridge, its right-of-way, and its abutments” (Mont. Op. Attn’y Gen.).
In other words, the public has a right to access streams and rivers at bridges along publicly owned roads. Furthermore, Mazurek clarified that without a definition in the easement or a deed to the contrary, the width of the right-of-way easement of a bridge is the same as the width of the public road easement to which it is attached and does not narrow at the bridge (Mont. Op. Attn’y Gen.). This provision was a very crucial legal pillar of the opinion. Easements for most county roads are 60 feet wide, which extends well beyond just the paved surface. This width includes land necessary for access and maintenance, like the borrow pit. Because of the Stream Access Law, there is also an implied recreational easement up to the high water mark in rivers and streams. Thus, where these two easements intersect, the public may legally move from one to another. All this is a complicated legal way of saying that the public can access streams at bridges.
Barbed Wire and Electric Fences: Access along the Ruby River.
An already tense situation boiled over in 2003 when James Cox Kennedy, an Atlanta media mogul with $7 billion in his own pockets who heads a media conglomerate worth $25 billion, began trying to warp Montana’s laws to suit his own personal whims. And none of those whims includes allowing the public anywhere near what he considers his own private river.
In addition to owning more than 3,000 acres of land, including eight miles along the Ruby itself, Kennedy owns the elaborate and expensive Crane Meadow Lodge, which advertises “private water … lease[d] for the exclusive use of our guests” and lies barely a mile from the Ruby. Kennedy had repeatedly and illegally blocked public access to the river for two decades. In 2003, he began erecting well-reinforced barriers with barbed wire at bridges on Seyler Lane and Lewis Lane. He even went so far as to string electric wires across the public right of way and attach them directly to the guard rails, blocking access. Perhaps big-city Atlanta is different, but in Montana electrocuting fishermen is considered bad form.
Fed up with Kennedy’s harassment of recreationists, PLWA filed a lawsuit against Madison County in 2004 over its lack of action, attempting to gain access to the Ruby at the Seyler Lane Bridge. As noted, Seyler Lane and Lewis Lane were the two roads with barricaded bridges bordering Kennedy’s property. Kennedy and the Hamilton Ranches expanded the suit to include the bridges at Lewis Lane and Duncan District Road, the latter of which did not border Kennedy’s property. PLWA contended that since these bridges are on established public or county roads, the public had a right to access.
On July 17, 2005, nearly 200 anglers and recreationalists turned out to float the contested stretch of the Ruby right below Seyler Lane. Organized by Tony Schoonen, a member of the PLWA Board of Directors, and billed as the “Stream Access Celebration Day Float,” the event drew public attention to fences that Kennedy had erected to restrict access to the stream. Schoonen said, “We had families, legislators, anglers and non-anglers, kayakers, and business owners. The overwhelming support was a great display of people who wanted to celebrate the stream access law and who wanted to protest what we believe are illegal fence restrictions at county bridges.”
Seyler Lane is what is known as a prescriptive easement — that is, a right-of-way that is created by regular, historic use over a period of at least five years. The original landowner, Bud Seyler, allowed people to travel across his land to reach the stream, creating the easement. It also follows, essentially unchanged, an important stagecoach route from Salt Lake City to Helena, dating from the 1860s and 1870s.
In March of 2007, Kennedy intervened in the lawsuit and issued a counterclaim asking for the judge to bar all public access at the bridges in question. The hearing took place during 2008 with Montana District Judge Loren Tucker for Madison, Beaverhead, and Jefferson Counties presiding. He ruled in favor of PLWA for two of the bridges, Lewis Lane and Duncan District Road, in September 2008. Tucker agreed that they were located on established county roads with the standard 60-foot county road easement, and acknowledged that “the public may utilize any portion of the 60-foot right-of-way regardless of the Ruby River intersection with it . . . .”
Tucker’s finding that the road right-of-way is not restricted or narrowed at the bridges was crucial and, as discussed later, resulted in a change to Montana law. However, Tucker did not rule on access at Seyler Lane Bridge because it is located on a prescriptive road easement, and he believed a separate hearing was required to determine the facts and law.
The 2009 Bridge Access Law: In the intervening years, Montana’s legislators acted to codify Montanans’ right to access streams and rivers at bridges by passing the 2009 Bridge Access Law. A varied group of stakeholders met during 2007-08 to craft a solution to the controversies that had arisen around stream access. Kennedy’s efforts to fence off access at the Ruby River hung heavily over the state, making clear the need for such a law. In the 2007 Legislature an almost identical bill was killed on a party-line vote, but during the next session, the bill’s sponsor, Billings Sen. Kendall Van Dyke, worked with all sides to reach consensus and pass the bill with overwhelming bipartisan support.
PLWA, along with other like-minded organizations, mustered a considerable group of sportsmen and recreationists, urging Montanans and our legislators to support the bill. It was the first piece of stream access legislation that Montana had seen in 24 years. It stated that the public must be able to access streams and rivers from public roads and bridges (Mont. Code Ann. § 23-2-312). The law also allows landowners to string fence along that public right of way to the bridge abutment, something landowners believed necessary for livestock control.
However, the law provides that if fencing makes access difficult, landowners are to be notified and asked to provide access with structures such as stiles, gates, or walkovers. If the landowner and the Montana Department of Fish, Wildlife, and Parks (FWP) cannot resolve the situation, FWP will provide the landowner with options. If that still does not work, FWP may then install the structure themselves, with funds from their department or other sources (Mont. Code Ann. § 23-2-312).
A bipartisan, common-sense triumph, the Bridge Access Law stems directly from PLWA’s tireless efforts to provide public access on the Ruby River. Billings Rep. Robyn Driscoll called the law the “real highlight of this session.”
Within a year of its passage, FWP had already completed over 23 projects to improve public access using funds it received from the Legislature specifically for that purpose. Jim Kropp, law enforcement chief for FWP, said that they have had good cooperation among all involved parties. Many requests came from private landowners looking to fix gates on their land, while others came from sportsmen hoping to improve the safety of some sites. Still others came directly from FWP personnel with previous experience in locations that need improved public access.
Bridge over Troubled Waters: Access on Trial at the Supreme Court.
The Seyler Lane portion of the Madison County lawsuit, upon which Judge Tucker initially declined to rule, was heard in January 2012. A few months later, in April, Tucker ruled against PLWA, creating a fallacious two-easement legal theory. He essentially decided that two easements exist on Seyler Lane: one for the county to use and another separate one for the public. The county’s easement was a normal easement width and allowed access to road components like the borrow pit for maintenance. The public easement, however, included only the paved surface of the road itself. Such a concept would mean that the county could perform road maintenance or bridge inspections, but that, since the road lies along a school bus route, children standing on the side of the road for the bus would technically be trespassing, as would someone who pulled over to change a flat tire, for example.
In May 2012, PLWA appealed the Seyler Lane decision to the Montana Supreme Court. Kennedy cross-appealed and, in a strange move, challenged the entire Stream Access Law as an unconstitutional taking of his property. The court heard the case in front of a large crowd on the Montana State University campus on April 29, 2013. Devlan Geddes, the attorney representing PLWA, argued that Seyler Lane constituted a prescriptive easement and that “once the width (of an easement) is established, it can then be used for all lawful public purposes,” like stream access. The supreme courts of Idaho, Colorado, and Wyoming have all used that same reasoning, he noted.
While both sides agreed that Seyler Lane is a prescriptive road, Peter Coffman, Kennedy’s Atlanta lawyer, claimed that the road right-of-way on a prescriptive road narrows at the bridge. Thus, no access at the abutments would be allowed. Coffman further claimed that Kennedy owns not only the land below the Ruby, but also the water and the air above it. Justice Patricia O’Brien Cotter immediately asked if he was requesting that the court declare part of the Montana Constitution unconstitutional. “Yes,” he said.
Coffman went on to admit that his client was seeking to overturn Montana’s 28-year-old Stream Access Law, which relied on the court’s own Curran and Hildreth decisions, and to nullify Article IX, Section 3 of the Montana Constitution, which defines water ownership in Montana.
An audible gasp escaped the mouths of disbelieving recreationalists and landowners that had packed every chair and formed rows that wrapped around the room twice. Such an assertion is truly breathtaking. Like the robber-barons from Montana’s earliest days, who pillaged the resources of our state for personal profit and then retreated to faraway cities, Kennedy apparently believes he controls all rights to the soil, the water, and everything above them.
A Victory for Public Access at the Supreme Court: After sportsmen across the state endured nearly eight months of nervous waiting, the Montana Supreme Court delivered a resounding victory for public access and a stinging defeat for Kennedy in January 2014. The court upheld the Stream Access Law and clarified the public’s rights to use certain rights-of-way. In unanimously rejecting Kennedy’s challenge of the Stream Access Law, not even the normally reserved court could resist an easy pun, noting that his “argument does not hold water.”
The court told Kennedy his claim that the Stream Access Law was a taking of private property was invalid because there was no property to take. When he bought the property, it was subject to the recreational access easement agreed to by the previous landowner in deed. In a 5-2 decision, the court also rejected District Judge Tucker’s previous two-easement ruling on Seyler Lane. Instead, they found that only one easement exists, an easement that extends beyond the width of the paved surface. The case was remanded to the district court in order to determine the actual width of the easement. Once a public prescriptive right-of-way is established, the justices held, it may be used from edge to edge for all reasonable purposes, including access to rivers and streams.
Geddes explained that this decision applies to every public prescriptive right-of-way in Montana. Long-time PLWA President John Gibson threw the importance of this finding into stark relief. “A lot of the roads in central and eastern Montana in particular are not county roads, but people use them as if they are county roads; but they have never gone through the formal process of becoming a county road,” he said. “Some of them have been here for 100 years.”
While no official count exists, some estimates place the number of these roads in the hundreds. Furthermore, the court ruled that when establishing the width of a public prescriptive right-of-way, the width extends beyond the traveled way to include all areas necessary to maintain and safely use the right-of-way. None of this allows trespassing across private property — only access through legal easements.
Finally, this decision confirmed that recreational use can help establish a prescriptive easement. On its own, it is likely not sufficient, but recreational use is an important factor that should be considered in addition to other public uses.
Geddes called this ruling one of the most important public road law decisions ever made in Montana. “It’s going to have a profound impact on public access to publicly owned lands and water in the future,” he said. The most important concept in the decision is that once a public road is established, that easement may then be used for all “lawful and reasonable” purposes.
Justice Michael Wheat authored the majority decision. Joining Wheat were Justices Beth Baker and Patricia Cotter, as well as District Judges Kurt Krueger and Mike Menehan, who replaced Justice Brian Morris and Chief Justice Mike McGrath, both of whom recused themselves from the case.
Justices Jim Rice and Laurie McKinnon partially dissented. Rice concurred with the majority that recreational use should be considered in determining an easement, but disagreed that the easement could then be expanded to include “all uses that are permissible” because he feared the easement could then be expanded forever.
McKinnon argued that Seyler Lane is not actually a county road because county roads cannot be established by prescriptive use; only public highways can. Bruce Farling, Executive Director of Montana Trout Unlimited, summed up the decision: “If there is a public easement on a county bridge, whether it’s through a deed, petition, or prescriptive, the public can use that easement to access the stream, provided it is physically possible to reach the area below the high water mark from within the easement.
No more ‘Keep Out’ signs: Gibson captured the spirit of the decision, saying, “We all won this one. Everyone that fishes or floats or enjoys the streams — it’s a great victory for the public trust.”
The Future of Stream Access in Montana: How did we get to where Montana is now? PLWA and its predecessor organizations certainly have done much of the heavy lifting — especially with respect to the Bridge Access Law — but there have been many other key players. Without the genius and dedication of the Goetz law firm in Bozeman, many of these efforts would have died an early death. Jim Goetz personally argued both the Curran and Hildreth cases, and Devlan Geddes, an attorney at the same firm, has worked with PLWA on important cases since 2004. The modest personal financial contributions and the thousands of hours of volunteer effort from grassroots members and donors have kept the effort to preserve and expand stream access rolling in the face of big outside money and political opposition.
Furthermore, many local and state sporting and conservation organizations — such as Montana Trout Unlimited, the Montana Wildlife Federation, and others too numerous to list in this writing — have advanced these goals.
And finally, little indeed would have been accomplished without the legislators, judges, and other officials involved who have converted raw materials and public support into law.
John Gibson, long-time president of PLWA, believes that Kennedy’s ambitions might include a federal appeal of Montana’s fabled Stream Access Law. However, as discussed earlier, the 9th Circuit of Appeals and the U.S. Supreme Court have both refused to hear challenges to this law, which is already well settled in this state.
Throughout all of this, PLWA continues to fight tirelessly for public access. Oftentimes, that work takes place behind the scenes — the public access fight can often become seemingly endless and tedious litigation, but it is crucial to protecting every Montanan’s right to access their rivers and streams.
The Supreme Court’s decision in the Ruby River case carries wide-ranging repercussions for Montana and possibly the whole country. Not only will it impact bridges like Seyler Lane, but it could alter the entire foundation of the Stream Access Law and the day-to-day lives of our citizens.
In short, what Kennedy challenged was the very fabric of our state. If nothing else has been certain throughout the nearly three decades of the Stream Access Law’s existence, then one thing surely is: Stream access is here to stay in Montana, and we’ll fight to keep it that way.