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The Montana Supreme Court on Thursday upheld the state’s steam access law as it reversed part of a District Court decision and ruled that the public can use a public prescriptive road to gain access to a river.

The dispute dates back to 2004 over the use of a public road to gain access to the Ruby River.

James Cox Kennedy, CEO of Cox Enterprises, an Atlanta-based media company, who owned the land under the road, had raised the challenge to the state stream access law in the appeal before the Supreme Court. The steam access law was passed in 1985 following several court decisions expanding the public’s right to access to certain streams.

Kennedy had erected fences, including an electrified one, and posted signs next to the guard rail along the road to tell the public it was not allowed access to the Ruby River from that site.

The Supreme Court rebuffed Kennedy’s challenge to the stream access law as part of its overall decision.

“Kennedy has offered no convincing reason to disrupt what has long been settled constitutional law in Montana,” Justice Mike Wheat wrote for the court.

In a 5-2 decision, the court ruled in favor of the Public Lands/Water Access Association and overturned part of District Judge Loren Tucker’s 2012 decision. Tucker had concluded there was no public prescriptive easement beyond the fences at Seyler Bridge to gain access to the Ruby River in Madison County.

The Supreme Court concluded that Tucker “erred by not finding a secondary easement that is independent and separate from the public easement.”

“The areas that are reasonably necessary to support and maintain Seyler Bridge, and to ensure the public’s safe and convenient use of it, are included in the Seyler Lane public road right-of-way,” Wheat wrote for the majority.

The court remanded to Tucker to consider the evidence in the record and conduct whatever additional proceedings he considers necessary “to establish a definite width of the public right-of-way, applying the principles stated in this opinion.”

“We further determine that the scope of use of the public road right-of-way is not limited to the adverse usage through which it was acquired and that any foreseeable uses of a public road right-of-say, including recreation use, are permitted,” the Supreme Court majority said.

The court also rejected the “takings” argument raised by Kennedy, who owns land adjacent to Seyler Lane and Lewis Lane and sought compensation for the property he claims was taken from him.

“Finally, Kennedy’s takings argument does not hold water,” the court majority said. “He presents no persuasive argument that a compensable property interest has been taken from him or that we should overturn our precedent and disrupt long-settled constitutional law.”

Joining Wheat in the majority were Supreme Court justices Patricia Cotter and Beth Baker and District Judges Kurt Krueger of Butte and Mike Menahan of Helena, substituting for former Justice Brian Morris and Chief Justice Mike McGrath, respectively.

Justices Laurie McKinnon and Jim Rice dissented in part from Wheat’s decision and concurred in part.

“In my view, the court’s opinion disregards more than a century of precedent governing prescriptive easements and undermines the balance the Legislature has struck between landowners and recreationists,” McKinnon said.

J. Devlan Geddes, the Bozeman attorney representing the Public Land/Water Access Association, was pleased by the ruling. He called it “a really important decision for Montanans across the board.”

“I think the Montana Supreme Court has dotted the ‘i,’ crossed the‘t’ and put the period on the stream access case in the state,” he said.

As for the decision itself, “the meat of it is that a public prescriptive road, once established, may be used by the public for all lawful purposes, including, most important to this case, accessing rivers and streams.”

He said county roads are established several ways.

The normal way is when someone petitions for a road and the county creates it.

Another way, Geddes said, is through subdivisions when the developer deeds easements to the county or state to make sure people have access.

A third way involves public perscriptive roads that have been in place for a long time. They are established after the public has used it for five or more years.

“Seyler Lane was in existence since the late 1880s, presumably by people on horseback and wagons and people trailing cattle and sheep,” Geddes said. “The court said once established, its uses may expand in the future.”

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Political and state government reporter for Lee Newspapers State Bureau.

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