Public Lands/Water Access Association ( PLWA ) Seyler Bridge Montana Supreme Court Appellate Hearing on April 29, 2013.
The Oral Argument was heard at Montana State University, Strand Union Bldg., before a standing room audience.
This video was obtained from the Montana Law Library, no other video could be found, nor any audio or transcript of the hearing. Whoever was video tapping, a passerby knocked the camera down and the last few minutes of James Cox Kennedy’s attorney’s rebuttal is lost and the first few of PLWA’s attorney’s closing.
The following is a transcript segment of James Cox Kennedy’s (Intervenor) attorney, Mr. Kaufman, arguing that Montana’s Stream Access laws and that part of our Constitution was unconstitutional. Besides Kennedy’s attorney stating that Kennedy owns the air space above the river, that stream access was a “taking”, he also stated, “This court said that unconstitutional actions are void and the passage of time does not render them okay, does not render them constitutional.”
At which point Justice Patricia Cotter asked, “You’re asking us to overturn Curran & Hildreth, aren’t you, and also to declare the stream access bill unconstitutional?”
Kennedy’s attorney replied, “That’s correct.”
Cotter then asked, “Counsel, aren’t you also asking us to declare a portion of the Montana Constitution unconstitutional? (Kennedy’s attorney interjected “Yes”) Article Nine, Section 3 provides paragraph 3 that, ‘All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.’ If your position is, we were to accept it, would reject that provision of the constitution?”
Again, Kennedy’s attorney answered “yes”.
This is not a small land dispute taking place, it is a portion of our Montana Constitution and our Stream Access law that Kennedy is attacking.