Montana landowners react to Supreme Court decision on road easements

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Opportunity to appeal to U.S. Supreme Court could overturn Montana stream access law

Montanans awoke today to find their Constitutional property rights further eroded by the Montana Supreme Court, which has upended over 100 years of established road law in a new decision released today. The implications of the ruling are far reaching for landowners throughout the state and a serious blow to the right of Montanans to own, use, and enjoy their property. The decision could ultimately lead to a bigger win for landowners, however, because it may give an opportunity to appeal to the U.S. Supreme Court on the larger issue of the Constitutionality of Montana’s stream access law.

In a dissent to the decision, Justice Laurie McKinnon noted that the Montana Court had to import prescriptive road law from other states to justify their decision. In fact, the decision overturns a recent law passed in Montana that specifies that specifically did not give the public the right to trespass from prescriptive easements.

Oped: Court erodes foundation of state’s stream access

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Professor James Huffman expalins how the United States Supreme Court’s PPL decision undermines the legal theory underlying Montana’s stream access law; click here for the full opinion in the Missoulian. Here’s an excerpt:

“The unanimous United States Supreme Court decision in PPL v. Montana was a judicial smackdown of Montana’s attempt at a massive land grab. The decision dismantled a legal theory that would have led to the state’s expropriation of thousands of miles of privately owned streambeds. At the same time, it called into question the legal underpinnings of Montana’s 30-year-old stream access law.

Helena IR: Justices hears arguments in stream access case

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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.

The PPL decision explained, and what it means for stream access

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The U.S. Supreme Court’s unanimous decision in PPL v. Montana, a case dealing with the state’s attempt to charge rent for the use of streambed property it did not own, is now at the core of arguments against Montana’s stream access laws.  Why?

James L. Huffman, Dean Emeritus at the Lewis & Clark Law School and Member of the Hoover Institution Task Force on Property Rights, Freedom, and Prosperity, wrote an excellent piece for the Cato Institute:  “PPL Montana v. Montana: A Unanimous Smackdown of a State Land Grab.”  Read the full article here.  We’ve summarized the high points below.

Consequences of the “Public Trust” doctrine

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In the debate over stream access we often hear about the “public trust” doctrine as justification for impeding on private property rights.  Our friends at PERC offer an explanation of how this judicial precedent took on a new life in Montana…and the consequences that it’s had.  Here’s an excerpt:

The idea that the public has rights to access resources such as water and wildlife—even if those resources are found on private property—found its way into Montana law through the public trust doctrine. Legal scholars and judges have expanded this historical doctrine beyond its constitutional limits to mean that landowners cannot deny access to resources owned by the public. This expansion infringes on private property rights by taking away the owner’s ability to restrict access and reduces the incentive for water and wildlife stewardship by private landowners.