Stream access preserved again

It is a marvel that someone had the audacity to challenge Montana’s 1985 stream-access law, considering the state’s populist nature and a general dislike for people who think they can lock up public resources.

In this case, that someone was James Cox Kennedy, chairman of an Atlanta-based media company who owns about 10 miles along the Ruby River in south-central Montana.

Kennedy maintained that the stream-access law amounted to “an unconstitutional taking” of his property rights. Well the Montana Supreme Court saw things differently, and so do we.

The law was passed precisely because there are people like Kennedy who would wantonly claim sections of the state’s navigable rivers and streams to be their own. Kennedy argued that because he owns the riverbed, he has the right to exclude people from wading or floating on the water above.

And because he felt that way, he fenced off public right-of-ways along county roads and bridges to prevent people from accessing the Ruby River. It’s surprising he didn’t string fencing across the river with “no trespassing” signs to stake his unrightful and entirely unneighborly claim.

 “In Montana, waters within the state are state property held in trust for the people,” Justice Mike Wheat wrote. “To assert he may control use of the water overlying the section of riverbed he owns is misplaced.”

Furthermore, the court ruled that there are easements along public roads and bridges for maintenance, and determined that those are to be considered part of the public right-of-way. The court also directed that recreational uses can be factored into the determination of how wide rights-of-way should be.

Montanans are passionate about public resources, and over the years, they have seen access to those resources disappear. Sure enough, property owners have rights, but too often those rights are applied in ways that block access to public land and water.

Editorials represent the majority opinion of the Daily Inter Lake’s editorial board.