No more “Keep Out” signs – Bridge Access Decision Explained

Montana Code Annotated:   23-2-302. Recreational use permitted — limitations — exceptions. (1) Except as provided in subsections (2) through (5), all surface waters that are capable of recreational use may be so used by the public without regard to the ownership of the land underlying the waters.

On January 16, 2014 the Montana Supreme Court affirmed the Montana stream access law in PLWA v. Madison County ( And James Cox Kennedy). John Gibson, president of the Public Land/Water Access Association explained the case this way. . . “”My client not only owns the land under the Ruby River in Montana. He owns the water in the river and the air above it. So, no member of the public has the right to be on the river running through Mr. Kennedy’s property without his permission.” This is what I heard the lawyer for James Cox Kennedy say at the Montana Supreme Court hearing in Bozeman on April 29..”

The following is an explanation of the case outcome by Montana Trout Unlimited Executive Director, Bruce Farling;

28 January 2013

From: Bruce Farling, executive director, Montana TU

About: Recent Montana Supreme Court decision on Ruby River Bridge Access

Background

The Montana Supreme Court issued an opinion January 16, 2014, in the long running legal dispute created by Atlanta media mogul Jim Kennedy’s challenges of recreational access from bridges over the Ruby River. The recent decision affected two court actions: 1.) An appeal brought by the Public Land and Water Access Association (PLWA and formerly known as PLAA) of a lower court decision regarding the nature of the prescriptive easement on the county road/bridge at Seyler Lane; and, 2.) A cross-appeal filed by Kennedy challenging a previous lower court ruling that affirmed recreational access as being legal within a recorded easement on Lewis Lane.

Montana TU filed a separate amicus brief bolstering PLWA’s arguments for access.

The opinion overturning the Seyler Lane decision and denying the cross-appeal affecting Lewis Lane is very strong. In the Seyler Lane case the lower court had made the unprecedented ruling that there are two prescriptive easements there, one for the county that is wider than the bridge, but which only allows access to the county for purposes of maintaining the bridge; and another that is only as wide as the roadway, which is for the public, but only for travel across the bridge. (Simply put for those not familiar with road easements, prescriptive easements are established through continuous public use along a travelway that occurs over time without either the explicit permission or opposition from the landowner).  The lower court further ruled that in no case could continuous recreational use be the basis for establishing a prescriptive easement.  The Supreme Court rejected these findings by a 5-2 vote.

In the case of Lewis Lane, Kennedy argued that the easement there could not be used for access to the river because Montana’s stream access law is unconstitutional, supposedly because it is a taking of private property without just compensation.  Ignoring settled law that says because the public owns the water it has a right to use it for recreational purposes, Kennedy claimed the public could not have access from a bridge to the river because he owns the riverbed. He claimed only he has the right to use the river. By a 7-0 margin, the high court rejected Kennedy’s claims. The court pointed out that our stream access law is settled law (having been affirmed by the Montana Supreme Court and rejected for review by the U.S. Supreme Court in previous cases). The justices noted, among other things, that Kennedy purchased his property after the stream access law was already in place, and therefore something had not been taken from him.

What the recent ruling does

• Rejects the lower court’s claims that there are supposedly two prescriptive easements at Seyler Lane bridge on the Ruby River.

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• Does not foreclose the possibility that prescriptive easements can be established through continuous recreational use.

• Says that once a public easement is established on a county road and bridge it can be used for all foreseeable uses, including recreation

• Says that a prescriptive easement constitutes the width of land wider beyond the immediate roadway that is necessary for construction, repair, maintenance and whatever is necessary for safe use of the road. In most cases, the width of such easements should, as a practical matter, be sufficient to accommodate public access to rivers and streams.

• Told Kennedy his takings claim in his cross-appeal regarding Lewis Lane is invalid because it is clearly settled law and there is no property to take. In fact, the previous landowner had agreed, by deed, to the easement.

• Remanded the Seyler Lane easement issue back to the lower court to establish the appropriate width of the easement there. That easement can be used for all foreseeable uses, including recreational access to the river.

The basic outcome is this: 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.

Importantly, the ruling also affirms the bridge access bill – while clarifying how prescriptive easements should be treated -– that Montana TU worked to pass in the 2009 Legislature. The ruling does not change that legislation’s intent to ensure that when landowners need to build fencing to constrain livestock within bridge easements, the public and landowner will work together to find mutually agreeable approaches to accommodate access and landowner needs.

One last note: A recent opinion piece signed by Sen. Debby Barrett (R-Dillon) and published in Montana newspapers decries the recent Ruby bridge ruling as unconstitutional. She further claims, as have other anti-access folks previously, that the 2012 U.S. Supreme Court decision in the case PPL v. Montana was some sort of precedent that will unravel Montana’s stream access law. These claims are manifestly wrong. The PPL decision was limited to establishing what is “navigable” for commerce purposes under a federal test to determine who owns a riverbed – the state or adjacent property owners. It aimed to guide whether PPL might owe the state rent for dams it owns on the Missouri, Madison and Clark Fork Rivers. Sen. Barrett and other public access critics continually miss this point: Montana’s stream access law is not predicated on navigability and streambed ownership. The Montana Supreme Court ruled in the 1980s that the public has legal access between the high water marks of all rivers and streams capable of supporting recreation, irrespective of who owns the bed or banks. Further, in the PPL case, the U.S. Supreme Court specifically stated that its ruling did not interfere with stream access, which is a matter of settled state law.

You can read the Supreme Court synopsis of the case HERE. Here is a response to the victory by the PLWA.