UPOM President Mark Robbins responds to a letter to the editor in the Helena IR this week:
Tony Schoonen says Madison County landowner James C. Kennedy has been in court since 2009 trying to destroy stream access (Helena IR, 4/10/13). Schoonen also claims that when Public Land/Water Access (PLWA) sued Kennedy and sponsored a “float-in,” Jim Kennedy had electrified fences at the bridge.
Judge Tucker didn’t see it that way when he dismissed PLWA’s legal claims against Jim Kennedy’s fences. In fact, the court record proves that the fences that PLWA litigated and protested were made of wood posts and rails, not electric wire. The judge said Jim Kennedy’s fences were lawful in all respects and did not block any public travel right, based in large part on testimony from Schoonen himself. I guess he wasn’t under oath when he wrote to the newspaper.
Apart from Jim Kennedy’s complete vindication on the fence issue, PLWA also lost a prescriptive access claim involving Seyler Lane, one that would expand stream access beyond what we have today. That iswhat PLWA is dragging Jim Kennedy to the Supreme Court to appeal, and they are the ones driving the bus.
The irony is that by appealing the issue of prescriptive access, PLWA has put in play very broad issues whose defenses could prove fatal to stream access.
The game changer that poses the most risk for stream access is the US Supreme Court decision last year in PPL v. Montana. The Court’s 9-0 decision left no doubt that Montana must follow federal rules used to determine when states own streambed. In addition, it ruled that the state can’t charge rent on streambed it doesn’t own.
It stands to reason, then, that Montana also can’t create public access on private streambeds it doesn’t own.
Now, thanks to PLWA’s appeal, the courts may decide whether Montana’s stream access statutes can be tolerated any longer in the wake of the new precedent. It is PLWA who should be held to account for putting this issue before the appellate courts, not Jim Kennedy.
As for Jim Kennedy, he is only defending himself. In that way, he’s just like any of us who have been targeted by this group. PLWA is suing me personally, too. I am glad to see Jim Kennedy using his resources to defend his property rights, as in the end it will protect every Montanan’s property rights.
A group of us formed a grassroots organization to support private property rights and help defend against the likes of PLWA. We have filed a friend of the court brief urging the court not to expand prescriptive use law. You can find our website at www.upom.org if you want more detail on this bridge access lawsuit.
Mark Robbins is a co-founder and president of United Property Owners of Montana.