Daily Drakemontana

montanaOn Monday, anglers and access stakeholders packed MSU Bozeman’s Strand Union building for Montana’s High Court hearing on the James Cox Kennedy v. State Stream Access Law snafu that will play a precedent setting role for future recreational river use across the state and beyond.

In a nutshell: Kennedy’s lawyer, Peter Coffman, argued that Montana screwed up for decades by allowing anglers to access and wade rivers such as the Ruby. Moreover, he said Kennedy owns the streambed and the water above it, and that Montana violated the U.S. Constitution by taking land when it gave Montanans the right to use state streams.

Justice Patricia O’Brien Cotter, on the flip side, asked if Coffman was asking the court to declare part of the Montana Constitution unconstitutional. (Good question.)

“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.”

Yep, Coffman confirmed.

Public Lands/Waters Access Association (PLWA) attorney Devlan Geddes said the case addresses two predetermined public rights: the right of Montanans to use the state’s streams below the high-water mark and the right to use Montana’s public roads to access those streams.

“This all relates to one overarching question: May Montanans use the Seyler Lane right-of-way, a prescriptive right-of way, to access the Ruby River?” Geddes added.

And this from state attorney Matt Cochenour, “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.”

For now, the court is taking the case under advisement. A decision within the next two months is pending.

Bottom line: Tony Schoonen, a leading state stream access advocate and president of the Montana Coalition for Stream Access, tells us, “If the Supreme Court rules against us, it will obliterate all state rights and the right to recreate up to the high-water mark. We’re talking about the potential for catastrophic results.”

More, via the Bozeman Daily Chronicle

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Tom Bie is the founder, editor, and publisher of The Drake. He started the magazine in 1998 as an annual newsprint publication based in Jackson Hole, Wyoming. He then moved it to Steamboat, Colorado (1999), Boulder, Colorado (2001), and San Clemente, California (2004), as he took jobs as managing editor at Paddler, Senior Editor at Skiing, and Editor-in-Chief at Powder, respectively. Tom and The Drake are now both based in Denver, Colorado, where The Drake is finally all grows up(Swingers, 1996) to a quarterly magazine.

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