Stream Access on Trial

The Cox Heir and the Ruby River

By Jonathan Weber, 6-16-05

	Fencing on the Seyler Lane bridge.

When the furor over a letter from the Cox Foundation to the University of Montana erupted a few weeks ago, I began to poke around the issue that's ultimately at the heart of the matter: Cox heir James C. Kennedy's fight with stream access advocates in Montana's Ruby Valley. Kennedy, you may recall, is the man behind the letter, which said no Cox donations would be forthcoming until Montanans changed their attitudes on out-of-state landowners and stream access issues. J-School Dean Jerry Brown released the letter to the press, only to be berated for doing so by UM president George Dennison, who it later emerged had himself made the letter public by sending it to Gov. Brian Schweitzer.

The letter became a big story mainly because Montanans love their hunting and fishing almost as much as they hate rich out-of-staters telling them what to do. And Kennedy seemed to be setting himself up as a caricature of the obnoxious rich guy who expects the locals to kiss his butt and change their ways - and then maybe he'll deign to do something nice for them (like donate to the UM School of Journalism.) His family is worth more than $10 billion. He owns 3,200 acres on the Ruby River. He's been fighting with local fishermen over access for almost a decade. He's put up electric fences. Isn't that enough to make him a bad guy?

The short answer is yes. But the slightly longer answer is, it's complicated. And how the issues are resolved will help define the direction of Montana and the region on the critical public policy question of access to public lands and waterways.

The core issue in the Ruby River wrangle, which will be the subject of a hearing in Madison County court in Virginia City on June 20, has to do with public access to streams along bridges. Montana's stream access law - among the strongest in the nation - establishes a public easement along waterways up to the normal high-water mark, but it doesn't require landowners to allow people to cross their lands to reach the stream. Along bridges, though, there's a county road right of way, and sportsman can thus cross the county right of way to reach the river right of way without crossing private land.

But Kennedy has erected fences up the bridge abutments, thus crossing the county right of way and blocking access to the Ruby. Lance Lovell, a Billings attorney who represents Kennedy, says ranchers have always fenced up the bridge abutments and that it's the most practical way to keep the cattle in. But I took a drive over to the Ruby Valley last week to see for myself, and it sure looked to me like Kennedy's fences are intended to keep people out, not to keep cattle in. That's especially apparent on Seyler Lane, where Kennedy's side of the bridge features relatively new and well-reinforced posts and barbed wire and electric fencing.

For the moment the fencing is legal, thanks to a Madison County Commission ruling last year that allowed landowners to obtain "encroachment permits" to fence across county right of way, while leaving the door open for sportsmen's groups to request gates or other pass-throughs if they are willing to help pay for them. That ruling followed a battle in the late 1990s in which Kennedy and other landowners succeeded in rolling back a county ordinance requiring gates at the bridges. (Around the same time, another group of landowners sought unsuccessfully to have the stream access laws overturned entirely as an unconstitutional "taking"). Public Lands Access Inc. has now sued the Madison County commissioners, asserting they have no right to grant the encroachment permits and in fact are obliged to remove any right-of-way obstructions. There are lots of intricate legal arguments about the nature of the right of way, county road law, public safety, parking, historic uses and much else. But it's really about who uses the river and how.

When you stare at the river crossings in question, it's not too hard to see where the landowners are coming from. The Ruby isn't very big, and if you're standing on the bank you're above the high water mark. If more than a couple of fisherman were using the access along the bridges some of them would almost certainly end up on private land. There's litter near the bridge corners where people have gone over or around the fences; tramping along the banks clearly isn't good for the riparian habitat.

And the truth is, Kennedy and other wealthy New Westerners are hardly the first to keep hunters and fishermen off their property. Sure, lots of Montana ranchers have historically allowed sportsmen to use their land, but many have not. You don't have to go far in Madison County to find people who think private property rights are more important than public access.

Indeed, there is a deep divide in Montana over all of this: a legislative effort to clarify the stream access and easement issues and reinforce access rights failed this year on a party-line vote in committee. In the Bitterroot Valley, where the battle over the Mitchell Slough raises many of the same issues, rocker Huey Lewis has been portrayed as the bad guy, but how would you feel about a bunch of yahoos tromping around your backyard and killing lots of fish under the banner of public access?

Still, when you survey the majestic Ruby Valley and the miles of river flowing through Kennedy's property, it seems more than a little churlish of him to fight people who just want to use a little sliver of it. Kennedy has made much of his conservation efforts, and it's true that the ranch is in a conservation easement. But the easement is with Wetlands America Trust, an affiliate of Ducks Unlimited of which Kennedy happens to be president - a potential conflict of interest that's considered poor practice in the increasingly controversial world of easements. Montana isn't even in the area that Wetlands America identifies as critical to its mission.

The sad truth is, in most of the West there is little in the way of public access rights. In Colorado, for example, the battle is over whether rafters even have the right to float a river that goes through private property. If public lands advocates in Montana push too hard they may provoke a backlash; it's always dangerous to underestimate the ability of rich people to get their way on issues like this (and that little note from Dennison to Schweitzer accompanying the now-infamous letter is a great example of how they accomplish that).

But there are some encouraging precedents. In California, beach access advocates have fought for years to require owners of beachfront property to adhere to state law requiring public access to the sands up the high water mark, and they recently won a big victory over Malibu music mogul David Geffen. Despite the ambiguities and the risks, when it comes to the case of Kennedy and the Ruby River, my gut says we should not only err on the side of public access but fight like hell for it.

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