Ruby Access Battle Over, For Now

The people won this round down on the Ruby, but sadly, the war for public access has only just begun

By Rob Breeding

We all ought to take a moment to celebrate that the access fight on the Ruby River — one of the most significant threats to Montana’s Stream Access Law in that law’s history — is finally over. After losing, repeatedly, before the Montana Supreme Court, the landowners who have tried to block access to the river from three bridges that cross the Ruby in Madison County have finally relented.

Last week, the deadlines for appeals to the Montana Supreme Court or federal courts passed. That means the rulings there will stand. The fate of access at two of the three disputed bridges was long ago settled as those bridges were on county roads. There the courts ruled early on that county roads have 60-foot wide easements and that the public was entitled to use those easements to access the river.

The third bridge, on Seyler Lane, remained in dispute because Seyler wasn’t originally a county road. Seyler became public through a prescriptive easement created by decades of continuous, and uninterrupted, public use. Since the county remains responsible for maintaining the safety and maintenance of the bridge, the easement had to be wide enough to allow for that maintenance.

In the case of Seyler Lane, that’s 47 feet, which means access will be tight, but the public can reach the river.

As far as fishing the Ruby goes, that’s not high on my to-do list. The same goes for Mitchell Slough down on the Bitterroot River, where maybe an even more dire threat to the Stream Access Law raged until 2008 when the Supreme Court ruled decisively in favor of public access.

Now that the law is clear, I have little interest in fishing either water. Who wants to fish in a place where you’re looking over your shoulder worried about hostile anti-access zealots waiting to pounce at the first misstep?

The principles involved in both cases, however, were central to preserving the integrity of the public’s right to access rivers between the high-water marks. Neither case, if the ruling had gone the wrong way, would have undermined the law entirely. But an adverse ruling in either case would have opened a path to undermine the law that surely would have been exploited by wealthy opponents of stream access.

It would be nice to think we’ve now heard the last of the legal wrangling over stream access, but that would be hopelessly naive. At a hearing before the Supreme Court, lawyers for the Ruby River landowner, James Cox Kennedy, basically told the court that Montana’s Constitution was unconstitutional. His lawyers claimed Kennedy owned the water in the stream and the land below and the sky above.

Kennedy lost this round, but I doubt he’s given up the fight. And unlike the groups fighting on behalf of Montanans for access — primarily the Public Land/Water Access Association — Kennedy has the kind of deep pockets that will allow him to sustain his anti-access crusade indefinitely.

In November, Montanans rejected a Supreme Court candidate who would have almost certainly been a vote against the Stream Access Law if seated on the bench. The state also elected a governor who has a long history of fighting for the Stream Access Law specifically, and public lands in general. But for the next four years (at least), the federal government will be wholly in the hands of opponents of access, and enemies of the concept of public lands in general.

Add to that the jury decision letting the Malheur Wildlife Refuge armed occupiers off the hook, and the relentless energy of the land transfer movement, funded again by deep-pocketed opponents, and it seems clear the threat to access and public lands has never been greater.

It’s nice that the people won this round down on the Ruby, but sadly, the war for public access has only just begun.

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