This goes way beyond Kennedy and his property and some little property dispute.
I was hired to do some research for a documentary film maker recently, who wanted access laws and the quotes from the MT Supreme Court hearing that took place here in Bozeman, at MSU, on April 29, 2013, which btw, ruled in favor of PLWA. It took awhile, but I found a video recording of the hearing and transcribed part of it. I will be getting this rendered and online soon for people to be able to see for themselves. Also, the case is not PLWA against Kennedy, it was against Madison County, Kennedy joined as an intervenor.
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 stated, "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 replied "yes".
This is our Montana Constitution and our Stream Access we are talking about.
I just had a permission request by King of the Mountain, by way of Kimber USA, to run this article. Based on comments, they are not too happy about this either.