January 19, 2017
By Jonathan Wright
A major lawsuit regarding public access to fishing water that was in contention for nearly 20 years has been brought to resolution. With the potential to set legal precedent in both it's home state and across the US, the fight to defend historical entry to the Ruby River in southwestern Montana was a classic battle of popular vs. private interests.
A tributary of the Beaverhead River, the Ruby is a small steam with a long legacy as a fly fishing resource, and has bridges crossing it dating back to the Gold Rush. Public access to streams and rivers in Montana is protected by one of the most progressive laws in the country, which mandates that the public has the right to walk, wade and float most natural waterways up to the high water mark. As a western fisherman, I've always admired the foresight that this statute represented in protection of the public good, and envied the access that it provided to anglers in Montana. The legislative vision has proved to be a clear one, as fishing is now a major driver of the economy in the state, and plays a strong role in the culture and values of the people there.
At issue is the matter of access to the water. While anglers in Montana have the right to be in the stream channel, getting to it is another matter entirely. Across the west, private lands in the form of historical ranches are being bought up and accreted into vast holdings with monolithic trespass policies, a departure from the historical accommodation that ranchers typically afforded to fishermen when they were polite–and brave enough–to ask for it. In my time in the Rocky Mountains, more often than not, if I asked for permission from a landowner to fish a property with a promise to pinch my barbs, release my fish, pick up trash and report any problems I saw, it was granted. The few times I wasn't, I respected it, and never made the decision to jump fence. This was, admittedly, as much a consideration of getting a scatter-gun load of rock salt in the ass as it was of good manners.
The legal representation of the incorporated holdings that are spreading across the region are much less approachable than historical land users, and are of considerably more litigious nature. The case of the Ruby River issue appears to be a textbook example in this regard, with the current landowner of the surrounding property, James Cox Kennedy–principle shareholder of Cox Communications, with a corporate net worth estimated at $18 billion–versus advocates the Public Land / Water Access Association (PLWA).
When Kennedy bought the land surrounding the Ruby in the 1990's, he apparently directed barbed wire and electric fencing to be strung across historical access points alongside bridges and other put-in's, immediately raising the ire of locals and provoking the PLWA involvement. During the course of the 12 year battle to resolve the dispute, at one point an attorney for the Kennedy estate stated that his client "owned the rights to the ground, the water and the air over the river", a claim that resulted in PLWA to file suit against the County that was in charge of management of the bridges in question, to invoke the question of public right of way associated with the publicly funded infrastructures.
Interestingly, Kennedy himself has cited his participation in environmental initiatives through the incorporation of a negotiated Conservation Easement associated with the Ruby River property, a legal apparatus traditionally intended to keep natural resources intact while providing benefits such as modest publicly funded financial supports and tax breaks to working ranchers and farmers who otherwise might be forced to sell or subdivide their holdings. However, Mr. Kennedy's sprawling vanity would seem to not have required any additional public incentives to maintain private fishing resources for himself and his friends. In this case, the installation of a Conservation Easement may have been merely a PR strategy on the part of his legal team, or could have intended to reinforce access restrictions.
Turnabout being strategic fair play, PLWA attorneys called for clarification of the legal standard regarding appropriate right of way being necessary for the maintenance and upkeep of the support elements and abutments of the bridges, which arguably could not be conducted without access to a reasonable amount of space on either side of the structures. After almost two decades of wrangling and the ultimate involvement of the Montana Supreme Court–which remanded final elements of the case back down to the county level–the issue has finally been resolved without fanfare by the recent passing of a deadline for appeals going uncontested. Anglers can now legally walk to the water via narrow ingress provided directly alongside the bridges.
"This is a milestone. It's a rebuttal of the attempt of a very rich individual to control access to streams in Montana. He was defeated by a bunch of volunteers." said John Gibson, president of the Public Land/water Access Association.
When personal venality starts to affect the rights and resources of the people, it's good to see that the resolve the PLWA showed in ultimately prevailing benefitted us all. A legal standard was set, but more importantly, so was an example. With the new upcoming federal adminstration likely to tilt the political terrain in regards to public lands management, it may make the kind of battle required to save the Ruby River look like a dress rehearsal.