James Kennedy: Millionaire Media Mogul challenges Montana Stream Access

Atlanta, Georgia, based media millionaire James Cox Kennedy is at it again, trying to halt public stream access at county roads & bridges that pass through his property on the Ruby River in southwest Montana.

This time, Kennedy has filed a legal suit against Madison County and Public Lands Access Association, Inc. (PLAAI). Kennedy alleges that Madison County is failing to stop the public from accessing the river at the county bridges, thus violating his property rights. PLAAI is an organization of concerned anglers, sporstmen and -women, and others who are concerned over the public being locked out of traditional access to public land and water. For the story on Kennedy's latest lawsuit, see the article by Nick Gevock of the Montana Standard at http://www.mtstandard.com/articles/2007/03/21/state_top/20070321_state_top.prt .

Kennedy's efforts to block public access on the Ruby River extend back at least to 2003. At that time, Kennedy began stringing electric fences and erecting other imassable barriers at the county bridges along Seylor and Lewis Lanes. Generally, Madison County has been gutless in this issue--trying to duck both the fanatical private property rights claims of James Kennedy and the demands to uphold the law by PLAAI.

The law is clear on this issue, as reified in a statement by Montana Attorney General Joe Mazurek in May 2000. Mazurek ruled that (Backus 2004):

• Use of county road right-of-way to access streams and rivers is consistent with and reasonably incidental to the public's right to travel on county roads.
• A bridge and its abutments are a part of the public right highway, and are subject to the same public easement of passage as the highway to which they are attached. Therefore, recreationists can access streams and rivers by using the bridge, its right-of-way, and its abutments.
• A recreationist must stay within the road and bridge easement to access streams and rivers. Absent definition in the easement or deed to the contrary, the width of the bridge right-of-way easement is the same as the public highway to which it is attached.
• Access to streams and rivers from county roads and bridges is subject to the exercise of the county commission's police power. However, this power is not without limitation.
• Access to streams and rivers from county roads and bridges created by prescription is dependent upon the uses of the road during prescriptive period.

Neither the law nor public rights seem to matter to James Kennedy and certain other wealthy landowners in Montana. It must be noted that Kennedy-types are the exception: most Montana landowners, whether newcomers or traditional family ranchers, respect the law and public rights. Furthermore, most Montana landowners are incredibly generous about granting public trespass by permission for hunting, fishing, and other recreational activities.

For those who care about public access to the streams and river of Montana, please please please support PLAAI in this David vs. Goliath battle. Go to http://plwa.org/.

So who is this James Cox Kennedy?

Well, to begin with, he was born with a silver spoon in his mouth. Today, he is chair and CEO of the privated media corporation Cox Enterprises, Inc. His grandfather was James M. Cox, a three term Ohio governor, 1920 presidential candidate, and newspaper owner. James M. Cox had two daughters--Anne Cox Chambers and Barbara Cox Anthony. The sisters are still alive, each have a net worth of #12.5 billion, and share ownership of the vast Cox empire. Both are major players in the Democratic party.

"Jimmy," as James Cox Kennedy was known as a boy, grew up in Hawaii. Here's a brief resume of his life:

• 1972 graduate of the University of Denver at age 24
• following college, spent several years racing motorcycles--apparently uninterested in the family business
• 1979 named president of Grand Junction Newspapers, a family owned business
• 1985 named vice-president of Cox Newspapers in Atlanta
• under Jimmy's direction, the Atlanta Journal Constitution's reputation went downhill because of budget cuts and newsroom staff cuts; this has continued with Cox's purge of over-55 year old employees (Sugg 2007)
• 1988 named chair of Cox Enterprises
• national board member of Ducks Unlimited
• president of Wetlands America Trust, Inc.

No one can alledge that Kennedy is not a conservationist. But supporting wildlife conservation does not necessarily coincide with respecting the law, acknowledging public rights, or getting along with your neighbors under the Montana Big Sky.

---------------------------------------------------------------

To float the river through James Cox Kennedy's land:

"Put in at Seyler Lane Bridge, drive through Twin Bridges to Seyler or Tash lane, then turn right and drive 1.75 miles to the bridge. For a longer float, drive to Sheridan, turn right at the IGA store and follow to an intersection known as Four Corners. Follow the foliage line for four miles to the river. Both floats end in Jesson Park in Twin Bridges across from the Madison County Fairgrounds. " (Billings Outpost 2005)

Sources

Backus, Perry (2004). "Fishing access battle continues," Montana Standard newspaper, 12.Jan.2004.

Billings Outpost (2005). Twin Bridges news item, Billings Outpost weekly newspaper, 17.July.2005. Available at http://www.billingsnews.com/story?storyid=17653&issue=270.

"Cox Empire Seeks Growth (on Its Own Terms)" (2002). New York Times, 14.April.2002.

Forbes 400 (2005). Entries for Anned Cox Chambers and Barbara Cox Anthony, at http://forbes.com/lists/2005/54/.

Mack Robinson College of Business (2004). "Twentieth Annual Business Hall of Fame Celebration," at http://robinson.gsu.edu/corporate/hof/2004/Kennedy.html.

Sugg, John F. (2007). "Why did Cox employees in Ohio get a better buyout deal than those in Atlanta? One word: union." 13.March.2007 at JohnSugg.com http://blogs.creativeloafing.com/johnsugg/.

Trout Unlimited & Stream Access

"National Trout Unlimited has proposed a resolution to prohibit Trout Unlimited Chapters and State Councils from involvement in any Stream Access disputes involving private property rights. The reasons given for this proposal are that the Stream Access issue is divisive, is not in line with the mission of the organization, and continued involvement will likely hamstring the ability of the National organization to raise money for new conservation initiatives in the future."
I received the above message from Montana Trout Unlimited. There has been quite a reaction to it.

Stream Access has been a cause celebre that has united Montana's rank and file anglers since the 1970s, when an ad hoc group of activists used the state constitution and the public trust doctrine to challenge private landowners who thought they owned the rivers. Since the 1984 court ruling, Montana anglers have had the right to recreate within the high water mark and to acess streams at all public road and bridge crossings.

We should note, however, that in the 1970s that even Montana Trout Unlimited would not carry the Stream Access ball. Though the ad hoc coalition, the Montana Coalition for Stream Access, was supported by many TU chapters and members, it was politically too hot button an issue for Montana TU to take the lead. Since that time, Stream Access has been well accepted as law and common practice, and Montana TU has worked actively to defend the law against the frequent challenges by Huey Lewis and other wealthy landowners who want to own it all and exclude the public. Even today, though, it has been primarily groups such as Public Lands/Water Access Association, Inc. http://plwa.org and Montana River Action http://www.montanariveraction.org that are leading the Stream Access charge.

The general explanation for National TU's anti-access position is that it is run by a board of wealthy donors who have little sympathy for the unwashed masses. Many wealthy anglers own riverfront property and would like to exclude the rabble from their front yard.

James Cox Kennedy of Atlanta, Georgia, is one such wealthy landowner. He owns property on the Ruby River here in southwest Montana, and his hired goons (aka security force) have done everything they can to intimidate the public from the river that runs through Kennedy's 3,200 acres of land. This has included stringing electric fencing at the two public bridges that cross the river on Kennedy's land. Rumor has it that Kennedy is holding out a $70 million carrot to National TU if the group will force local and state chapters to back off on the stream access issue.
Montana TU chapters and members are threatening everything from a national campaign to expose National TU's position to a secession from the national group.

As a TU member from Butte, I well understand the TU National concern. It is not unlike the pressure George Grant TU felt with issues such as the ballot initiative to stop open-pit, cyanide heap-leach gold mines. As I recall, GGTU feared taking a position that would alienate local donors.

It is also not unlike the pressure individuals or groups feel when they become tightly woven into the fabric of "mainstream" or "consensus-based" organizations such as watershed committees. There will be issues such as "the sanctity of water rights as private property rights" that prohibit one from taking an activist position while remaining part of the larger group. Montana TU and each individual chapter (and ultimately each individual chapter member) will need to make this decision. In my book, anytime we must sacrifice our core values (for me this includes public access, minimum stream flows, and endangered species) in order to get along & go along, it's time to walk away from the sandbox.

There is a larger issue here, and that is the Public Trust Doctrine. Just as the PTD guaranteed a legal basis for public access to streams and rivers, the PTD also guarantees minimal flows for fish. In California, the Audubon Society won a court decision in 1983 that forced the Los Angeles Department of Water and Power to leave enough water in Mono Lake to sustain its natural resources. This is because natural resources are held as a public trust by the state. Nevermind that LA had legally acquired water rights permitting it to dewater tributaries of Mono Lake and hence the lake itself. The bottom line: "water rights that affect public trust resources are inherently nonvested property interests; that is, they are revocable by the state." (Blumm and Schwartz, 2003)

Montana TU and chapters such as George Grant TU are a long way from supporting legally-required minimal instream flow rights for fish. But they might some day reach that goal that lies along the path of the Public Trust Doctrine. Nonetheless, in the meantime Stream Access is an important milestone on the Public Trust Doctrine path. If Montana TU, its chapters, and its rank-and-file members get pushed off that path, there will be little hope for the conservation future. Trout Unlimited will degenerate into what it was for the most part in the early 1970s--what Butte conservationist George Grant called "an Ernie Schwiebert travelogue club" where members showed off slides of their latest fishing safari.

Source:
Michael Blumm and Thea Schwartz (2003), "Mono Lake and the Evolving Public Trust in Western Water," Issues in Legal Scholarship. Available at http://www.bepress.com/ils/iss4/art3/.