Stream Access on Trial

The Cox Heir and the Ruby River

By Jonathan Weber, 6-16-05

	Caption: 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. [End of article]

Jonathan, a terrific piece that clarifies the stances on both sides of this controversial issue. As more and more of the West gets cut up into ranchettes the public-access laws are going to receive more and more scrutiny. Here in Colorado a string of recent court victories indicates that the public-access advocates are winning when it comes to floating rights. Let's hope the courts continue to strike a balance when it comes to deciding who gets to recreate where.

Agreed. A few years back, William Greider wrote a fascinating and very alarming piece for the Nation on the huge iceberg beneath the waterline that the principle of "takings" represents -- as well as conservative strategies to use it to advance their agendas.

Of course the situation on the lower Ruby is certainly more of the worldwide and relentless privatization of traditional public space and resources by big money and corrupt corporations.

Populism was always opposed to this before it fell out of favor in Montana.
In many ways that populism was replaced by the sacred truths of Montana's growing Jesus, Guns and Chainsaw belt and the legal strategies of the Mountain States Legal Foundation.


And the Ruby is real big money. There is nowhere else in Montana where this kind of money is concentrated.
Compared with the very secretive Cox Kennedy operations, Ted Turner, Schwab, Denny Washington are small change.

Why? - its not the fishing. It is the hunting, a large private game farm of connected private estates.


And then there is the decor. Not Western but rustic, in some cases like Kennedy's Trailsend Ranch between Sheridan and Twin Bridges, chemically treated wood to give the appearance of aged. Dreary earth-tones and subdued rustic structures and barbed and electric wire are some of the highlights of Brave New Montana.

But the big mover and shaker in the Ruby, is a Denver lad named Reid Rosenthal. (HIGH COUNTRY NEWS,Monday, May 30, 2005)

On one of Rosenthal's websites - Vigilante Land Southwest Montana homes, ranch properties, and land for sale - you can find this statement. Manifest destiny for billionaires is how I would put it.

Anyway what Reid says is this: http://www.vigilanteland.com/

"There are those who believe this area of Montana has a manifest destiny to become a 'destination resort area', unlike and unequal to that found anywhere else in the world, and without the gaudy commercial trappings and subdivisions formed in areas like Jackson Hole."

And the Rosenthal tactic in the privatization of the Ruby are the easement tax breaks that he emphasizes which make it easier for cash heavy out of staters to buy and hold land near rivers and then keeping the public out, stream access law or not. Which is what is happening right now in the lower Ruby.

Country Roads LLC of Sheridan, Montana is another Rosenthal operation. On this website there is an invaluable map pointing out the managed access and private Ruby waters that Rosenthal claims.
http://www.countryroadsinc.com/fishing/rubyrivermap.htm

I strongly recommend viewing this map.
From there you can see that Kennedy's holdings are just a small part of the privatization of the Ruby.

As for the law:

In 1984, the Montana Supreme Court held that any river or stream that has the capability to be used for recreation,
such as fishing and floating, can be used by the public regardless of whether or not the river is navigable and
who the owner of the streambed property is.

In 1985 the Montana legislature determined that a river is anything between a river's ordinary high water marks.

This has been upheld by the United States Supreme Court in a Ruby River challenge by Denver's right-wing Mountain States Legal Foundation on May 29, 2003.

Jackie Corr, Butte

I tend to agree with your conclusion, even though I am a not so wealthy (by Cox standards) owner of a small piece of land on a lovely river in MT. We have never encumbered access to the river through our property, and if litter was the only problem that would be great. But how about tramping across the private land to get back to your car and leaving gates open, allowing animals to escape. Or building a fire and not putting it out properly. These things have happened to us--and there is little practical recourse, when your not there to witness it in real time. Also, it is not a high priority of law enforcement.

It is not a simple question. My great fear is that one of these traspassers ends up burning down our house accidentally, or trips and gets hurt on our property and ends up suing us.

Thanks for the comments. Jackie, I wasn't aware of a game farm plan, that is indeed a whole 'nother can of worms. That piece you cited from Ray Ring at High Country is indeed a great story on the easement issues, Rosenthal had some issues and they are doing a bit of a skinback but the main points stand, I recommend it.

Paul, thanks for the perspective. You have thoughts on how to remedy that kind of problem? That would obviously be extremely frustrating, the flip side of access has to be responsibility and basic common courtesy at the very least. Hopefully Montana courts would take a dim view of liability lawsuits in this kind of situation, anyone know if there are precedents?

Ahhhhh...Ms Corr. There is something to be said for consistency, even, I suppose, if such consistency consists merely of a continuous stream of incorrect and misinformation. And in that regard you are most consistent.

Since this bridge thing is not, and has never been our fight, I will make this short and sweet.

As you are well aware, our outfits have not been involved with a piece of Ruby with a bridge on it for years, and we manage a grand total of one mile of the fifty miles of river below the dam.

And, nope, I am not from Denver. My ranch was quite a ways north of that, like counties away.

And nope, I am not an owner of, or in (and never have been) Vigilante Land Inc. And, nope, did not write their website, nor is their site "my very own."

And yep, we are in business to perpetually preserve the great land, water and agricultural resources of this place, and make a profit.

Ted will most distressed to hear his wealth does not hold a candle to Jim's. But thank you for putting my name on the same page with them. I consider that quite an honor.

The Game Preserve? Now you have intrigued me. Please send me, or post here, all the information on the Game Preserve. Could you also provide a link to any sentence, paragraph or page of our Ranches of the West or Country Roads websites that reccomends keeping public out of the Ruby? And while you are at it, how about a link for all of us inquisitive types to that 2003 UNITED STATES Supreme Court decision on the Ruby you mention? Thanks!

Mr Weber. To the devil his due. Good article!

Reid Rosenthal

Mr. Rosenthal, thanks for the compliment here and on the other piece, I appreciate it! And again I very much appreciate & respect your willingness to engage these issues publicy.

I lived in Dillon in '63 and fished the Rubye River a lot. It's my favorite river - period.

I think you badly underestimated the "high water mark".

But - the article is good, and makes the right conclusion.