Photo credit: Dave Bezaire & Susi Havens-Bezaire

The Montana Supreme Court heard arguments Monday in a case that may affect whether anglers and recreationists can access easements across private property and certain rivers below the high-water mark.

The Public Lands Access Association filed the lawsuit in 2004 after Madison County landowner James Cox Kennedy erected electric fences that blocked an easement across his land and leads to the Ruby River.

No trespassing signs also were attached to three Madison County bridges.

Montanans have the right to use the state’s streams below the high-water mark and the right to use Montana’s public roads to access those streams, Public Lands Access Association attorney Devlan Geddes argued.

Kennedy’s attorney, Peter Coffman, disputed that, saying that not only was the public not allowed to use the easement across Kennedy’s land to get to the river, but that portion of the river itself belongs to Kennedy because it is classified as a non-navigable stream.

District Court Judge Loren Tucker previously ruled that the public could use the paved part of the easement through Kennedy’s property, but only the county could use the adjacent right of way for maintenance. That means anglers can’t access the high-water line without trespassing.

The Public Lands Access Association appealed the ruling, and the state’s high court held a hearing before a standing-room only crowd at Montana State University’s Strand Union Ballroom, the Bozeman Daily Chronicle reported (http://bit.ly/ZNdr8D).

“We’re saying, once the width (of an easement) is established, it can then be used for all lawful public purposes,” Geddes said. “This is the same reasoning from the supreme courts of Idaho, Colorado and Wyoming.”

The justices will have to weigh that argument, and whether the public has the right to access a non-navigable stream, which means boats weren’t using the waterway when Montana became a state.

Kennedy owns the river streambed and the water above it, so the state was taking the land when it gave Montanans the right to use state streams, Coffman said.

Justice Patricia O’Brien Cotter asked Coffman if his argument meant the part of the Montana Constitution granting those rights was unconstitutional.

“All waters are the property of the state for the use of its people,” Cotter said. “Your position would reject that provision of the constitution.”

Coffman responded the court has included the streambed and banks in that definition, which violates the U.S. Constitution.

Coffman hadn’t brought up the constitutional argument in the lower court, so it couldn’t be introduced in an appeal, Geddes and state attorney Matt Cochenour said.

“We shouldn’t be upending 30 years of law with something the district court didn’t get a chance to rule on,” Cochenour said. “When Kennedy started buying land in Montana, this court had already ruled that the stream-access law was constitutional. The remedy for that isn’t to wait 20 years and try again.”

The justices will consider the arguments and make a decision later.