Stream Access

Class War Brews Over Conservation

By Jonathan Weber, 7-26-05

	Caption: The Seyler Lane bridge over the Ruby River

One of the great conflicts playing out across the West is between our use of wildlands and waters, and our efforts to protect them. It stands to reason that the more people you have tromping through a delicate habitat, the less healthy that habitat will be - but of course many would argue that there is little point in protecting something if nobody is allowed to experience it.

Yet the interplay between human access and conservation is often even more complicated than it seems, and nowhere is that more evident then in the increasingly contentious disputes over stream access in Montana - and especially in the long-running fight over the Ruby River.

Montana's stream access law, among the most liberal anywhere, gives people extensive rights to use rivers and streams up to the high-water mark. Access advocates have been fighting for almost a decade for the removal of what they say are illegal fences along county bridges over the Ruby that keep people off the river. But landowners, notably James C. Kennedy, the chairman of Atlanta-based Cox Enterprises and the owner of 3800 acres on the Ruby, say the fences are legal - and that unfettered access to the Ruby would ruin a fragile fishery and a recovering riparian habitat.

Hostilities over the Ruby situation have intensified in the wake of the "float for stream access" that took place July 17; about 50 floaters in canoes and kayaks (including this reporter) climbed the fences in question and enjoyed an altogether bucolic afternoon on the water. But in the aftermath, one A. Reyes, in a letter to the Montana Standard, denounced the floaters as people with "no regard for the environment," asserting that the Ruby was so low as to be unnavigable and therefore floaters were damaging the river. (Not true: we scraped the bottom a few times in our canoe, mainly due to my lackadaisical steering, but it was certainly plenty navigable.) The letter also attacks float organizer Tony Schoonen in rather nasty terms, and defends Kennedy as a generous steward of the land.

I spoke to Kennedy on Friday, and I also had a long conversation with Bob Butler, who manages Kennedy's Ruby property. Kennedy and Butler both affirmed that protection of the Ruby fishery was a major concern, and that regular floating and the additional fishing pressure that would be created by more access points would be damaging to the habitat.

"It's all about access and not about protection of the resource," Butler said of the recent events. "We wouldn't even consider fishing the Ruby with water temperatures like this." Kennedy, he added, had all but saved the Ruby fishery through the drought by releasing portions of his irrigation allocation into the river.

"If the access groups prevail, and if the department (Fish Wildlife and Parks) doesn't do something to protect these fragile fisheries" than we will all lose, says Butler.

Kennedy defended his actions in similar terms. "I hope people would look at the effect on habitat when you open up places," he told New West. He predicted that if he loses the fight over access at the bridges, initially there would be a lot more use of the water, "until the fishing was decimated." The Ruby, he said "is not a floatable river."

But Dick Oswald, the area fisheries management biologist for Fish, Wildlife and Parks whose territory includes the Ruby, says there is no evidence that increased public access has had a negative impact on the fishery. "The data we have assembled shows unequivocally that the Ruby is capable of withstanding public fishing pressure," said Oswald. "Before we sought the access (in a 1996 proceedings which resulted in some public access sites upstream from the bridges) we had ample opportunity to compare reaches of the river that were open with areas under exclusive private ownership, and there was no difference. The fish were not more ample or abundant, nor were there more large fish."

After the 1996 access agreement, fishing pressure increased substantially, Oswald said, but since that coincided with a period of wet weather the fish counts actually increased dramatically.

"The Ruby already is managed under restricted regulations," Oswald said. "And it's mostly a Brown trout fishery, the species that is by far the most resistant to fishing pressure."

Oswald also said there was no evidence that float fishing was any more disruptive for fish than wade fishing. "I strongly dispute the claim that the Ruby is not sufficiently protected, and that stream access would destroy the fishery," he added.

Now intelligent and informed people can certainly disagree on issues like this, and I have no doubt that Kennedy and Butler believe what they are saying. Yet this also appears to be a situation where habitat protection dovetails nicely with other reasons for keeping people off the river, i.e. the desire of Kennedy to guard his privacy, and to maintain a unique and uncrowded experience for guests at the exclusive and extremely expensive Crane Meadow fishing lodge on the property.

Crane Meadow, which lies just a few hundred yards from one of the disputed access point at the Seyler Lane bridge, advertises "private water" for the "exclusive use of our guests." While the Crane Meadow Web site does not refer specifically to the Ruby - and Butler says the lodge guests do relatively little fishing there - it's only natural that people paying hundreds of dollars a night would rather not share with the public. I know I wouldn't.

I find this issue especially fascinating because we have not even begun to see the warfare that could emerge over this issue as Montana becomes more crowded. In the Bitterroot Valley south of Missoula, wealthy landowners and access advocates are battling in court over the Mitchell Slough, which is essentially a spring creek augmented by water from the river. The landowners have spent a lot of time and money restoring it as a fishery, and they don't want to have hordes marching through their backyards. There are hundreds, if not thousands, of biologically similar situations all over Montana - and more and more of them involve land that is now (or will soon be) the property of wealthy out-of-state landowners. The potential for conflict is obvious.

As a public policy matter, the important thing will be to keep the biological arguments about habitat as separate as possible from the inherent conflict between the stream access law and the private property rights. As Kennedy says, "the people who can make that happen [conservation] are people who are more fortunate." But if conservation efforts become a tool for the wealthy to protect their own private playgrounds - or are seen that way by the majority of people who are not "more fortunate" - then such efforts are likely to face a grim future. [End of article]

This sounds a lot like a new Enclosure Movement.... Time for a refresher?

http://www.bbc.co.uk/history/lj/locallj/ff_thriplow_enclosures.shtml

Enclosures

The enclosure movement was the cause of one of the greatest changes in the landscape of rural England. It was the process whereby the system of communal exploitation and regulation of the arable land, open pastures, meadows and wastes (uncultivated land) was gradually replaced by a system of private land management. It involved both a legal change and a physical change.

The communal element was abolished and individual landowners and tenants took over separate private control of defined areas of land. The community no longer had rights over most of the land and the poorer members of village society were frequently disadvantaged in consequence. Physically, the great open fields, unfenced and unhedged meadows and pastures, and the expanses of fen, moor, common and heath were divided up into hedged, fenced or walled fields. The land was enclosed, instead of open.

In central England and much of southern England the process reached its peak in the 18th and early 19th centuries, when it was facilitated by a large number of Acts of Parliament, each relating to a single parish or locality. In other parts of England, such as the north-west, such legislation was rare, and instead the enclosure movement was conducted largely by private agreement between manorial lords and their tenants. Here it was already well under way by 1500 and had been largely completed by 1750. The effects of enclosure upon the English landscape are of major importance and in individual communities such as Thriplow it amounted to a full-scale remodelling of the whole pattern of landscape and economic activity.

Will

good for you to be fighting for such access and making this issue known to the public. When hiking in a beautiful park like Yellowstone, I have often thought that if the generations before us had been as selfish, lazy and unappreciative of the benefits of nature for the ordinary person as the one today appears to be, we'd have none of the places we take for granted. We have benefitted much from the past largesse of the rich and the far sightedness of politicians like Teddy Roosevelt. I hope we don't forget the value of this and lose what we have. I understand how private land owners like to keep what they have for themselves (live on a creek myself) but if people would think of the benefit to the culture at large, maybe they'd see it differently-- not that today seems to be much of a time for considering what is good for someone other than yourself...

HIS FOOT IN HIS MOUTH

It appears multi billionaire James Cox Kennedy of Atlanta, Georgia, has a real gift, one might say an unerring instinct for putting his foot in his mouth.

First, the amazing and tactless letter to the University of Montana a few weeks ago.

"As you may know, many Montana residents are making it known that they are not happy with nonresident landowners in their state. In addition, stream and river access issues are also being raised. Until these issues are resolved and our presence in the state is more appreciated, we have decided not to make any further contributions in Montana."

Not that Mr. Kennedy ever contributed anything in Montana and his use of the word "further" is a little confusing. I mean this is a guy who owes the state of Montana big bucks for illegally privatizing ten miles of one the state's blue-ribbon trout streams for a dozen years or so.

So, you would think that would be enough out of Mr. Kennedy in one lifetime.

Well, not quite. Apparently Mr. Kennedy is determined to be a household name in the Big Sky, and at that he continues to be very successful.

Now the story line out of Atlanta is of a noble soul who came to Montana just to save a river from the people that live in the state. At least, or not yet, Mr. Kennedy has not claimed it was a call from God.

"This doesn't have anything to do with stream access," Mr. Kennedy says of his Ruby River problem.

Of course, the problem is how you look at it.

The same high-tension fences that the ungrateful of Montana contend are blatantly lawless and illegal, and block county road and bridge right of ways, also keep the Big Sky low-life off the river, which is Mr. Kennedy's point.

For you see, the visionary Mr. Kennedy now predicts that if he loses the struggle over access at the bridges, initially there would be a more use of the water, "until the fishing is decimated." So the Ruby, Mr. Kennedy, (Is he also the Solomon of the South?), declares, "is not a floatable river." And it is now up to Mr. Kennedy to save it.

In other words, the people of Montana better start waking up and find another river before its too late.

Funny how the Ruby survived before Kennedy arrived. And studies by Montana Fish, Wildlife and Parks, come to a quite different conclusion.


Mr. Kennedy also says the bridge fences were already there. Strange how people that have lived in Sheridan and Twin Bridges all their lives can't remember such fencing.

Nor can anybody remember electric fencing anywhere before Mr. Kennedy's arrival.

Nor can anybody ever remember seeing Kennedy in Sheridan or Twin Bridges.

Then, there are the two contested bridges and the roads they are on, Lewis Lane and Seyler Road.

Mr. Kennedy glibly disposes of that problem also. "The roads in question are not the kinds of roads that by law have wide rights-of-way." And why is that? The evidence, and the only evidence is, because Mr. Kennedy and his lawyers say so.

But this is Montana where a public road is any road under the jurisdiction of the Montana Department of Transportation, county government or municipal government.

In addition, the width of the bridge right of way easement is the same as the public road to which it is attached. Since statehood, 1889, the width of county roads has been 60 feet. But now, Mr. Kennedy has decided to change all that.

And despite the fact that both roads, Lewis Lane and Seyler Lane are two of the oldest roads in Montana, in use long before statehood.

Lewis Lane was part of the old 1860's stagecoach route from Virginia City to Bannack. Seyler Lane was the original Twin Bridges road to Dillon, in use from 1882 or so.

But what is Montana history, law and tradition when it comes to Mr. Kennedy and his noble pursuit of what is best for the state of Montana?

Then there are the sufferings of Mr. Kennedy.

"I own 20,000 acres in Montana, and as a landowner I have to apply for a [non-resident] hunting license. I have no guarantee that I can even hunt on my own property. That does not seem welcoming."

Not mentioned, of course, is Montana landowners have lived with this for decades and are under the same hunting rules and restrictions as Mr Kennedy. Montana residents also pay income taxes in the state, unlike Mr. Kennedy who visits his trophy ranch for a month or so a year.

Nor, no mention of the blatantly illegal practice of running electric wire over the water and across stream. And how bad is that?

Well, even Ted Turner has never been accused of that little trick. And when you are one up on Turner in Montana, as Mr. Kennedy is, you have truly earned your reputation.

And what about his high priced luxury lodge, Crane Meadows, on the same river on which Montana residents are verboten? No mention of that in the NewWest interview.

Then there is the land trust/conservation easement racket.

Of course, Mr. Kennedy hints that several land trust groups are recruiting him and his Montana Smith River property. "They would love to have me put in an easement."

Well - if you believe that then I will sell you a Ruby River bridge.

The fact is that his conservation easement on the Ruby River is filed under Wetland's America Trust created shortly before Mr. Kennedy came to Montana.

And Wetlands is a trust of which Kennedy (Atlanta) is president and Ted Turner's son, Bo (Atlanta) is on the Board of Directors.

So I doubt if Mr. Kennedy was hard to recruit.

And yesterday (Tuesday, July 26) I visited the Ruby with state legislator James Keane who brought his tape measure. Keane was on the assembly committee in 1999, the year the current state fencing law was passed..

A number of things Representative Keane noted. One being state law says no strand or wire may be below 15 inches from the ground. Yet all Kennedy fencing is not only high but only 12 inches or less above ground at the bottom, a violation of state law and a practice that brings slow death, cruel suffering and starvation to Montana's far ranging migratory herds of antelope, deer, elk and moose.

Mr. Keane also noted the Kennedy practice of anchoring electric fencing off the public bridges, clearly a violation of state law. Keane also thought the claim that two of Montana oldest and established public roads did not have 60 feet right -of-way rights was "preposterous."

Jackie Corr, Butte

how are people going to learn to appreciate the land and be good stewards if they cannot enjoy the land themselves? it is doubtful that the ruby river will become as crowded and ugly as, say, the jersey shore. we need to let future generations, as well as our own generation, learn the pleasures of the natural outdoors - otherwise how will people be able to care as battles over public land grow fiercer and fiercer?
-JAY