The Access Dilemma

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Thanks!!! Charley Pike

Overheard the other day:

“I can explain it to you—but I sure as hell can’t understand it for you!”

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• The Access Dilemma—Starting with streams…

• Where’s This Picture?

• On Charley’s Mind

Under the Montana Stream Access Law, the public may use rivers and streams for recreational purposes up to the ordinary high-water mark without regard to the ownership of the land underlying the waters.

Stream access in the Treasure State today is relatively easy to define. Forty-some years ago though, we didn’t think it was a piece of cake. Two landmark fights over stream access triggered litigation that slogged through the Montana court system during the late 1970s and into the mid-1980s.

The Rafter Battles

First, Mike Curran got into a scrap with rafters trying to float the Dearborn River that runs through his ranch west of Great Falls. Soon after, rancher Lowell Hildreth built a fence across the Beaverhead River, preventing rafters from passing through his property.

By 1984 the Montana Supreme Court settled the cases in favor of the rafter’s advocacy group, the Coalition for Stream Access (now morphed into the Public Land & Water Access Assoc.).

The Coalition was formed to help protect the public's right to recreate on the state's natural waterways.

The defendants, supported by production agriculture and landowner groups, argued they of were protecting their farming and ranching investments while preserving private property rights.

Public Trust Doctrine Applied

The root of the plaintiffs arguments is the 1972 Montana Constitution which clarifies that all Montana waters belong to the State—drawing from the Public Trust Doctrine. This doctrine maintains that governments can hold certain portions of navigable water for public use, regardless of who owns the land under or around those waters.

In response to the Court’s ruling, the Montana Legislature passed the 1985 Montana Stream Access Law codifying the right to use rivers and streams for water-related recreation. The Montana Stream Access Law though, does not allow “unfettered” access as the plaintiffs sought.

Most importantly the public cannot enter posted lands bordering rivers and streams or cross through private lands to gain access to the waterways.

The law differentiates between larger rivers with publicly owned stream beds, and smaller rivers with privately owned stream beds, by categorizing them as either Class I or Class II, respectively. Recreational access is allowed for both, but significant restrictions apply to the smaller streams.

Not Really A Piece Of Cake

Defining stream access in Montana hasn’t exactly been a piece of cake… Take the 2008 Mitchell Slough for example. The Montana Supreme Court determined that a portion of the east side of the Bitterroot River is a natural branch of the river versus a man-made “canal” as argued by landowners rocker/actor Huey Lewis, and finance magnate Charles Schwab.

Then there is House Bill 190, passed by the 2009 Montana Legislature, confirming that the public has access to surface waters by public bridge or county road right-of-way.

Further, the definition of “high water mark” can be nebulous and sometimes subjective.

Last fall two local duck hunters were ticketed for accessing the Gallatin River at what had long been a well-used “high water mark” point. The land had recently been purchased by a California couple who fenced off the access site. The case is still under litigation.

To date the Montana stream access decisions basically gave the recreation community wading and floating rights to the state’s streams and rivers. But they didn’t get the full-meal deal—fulfilment of their overarching mission to “maintain, restore and perpetuate access to all public lands and waters.”

So the beat goes on…

The Montana Stream Access Law:

• Is fully explained in the “Stream Access in Montana” pamphlet.

• Does not allow access through private lands to gain access to streams and rivers.

• Applies only to natural waterways.

• Allows recreational use only up to the ordinary high water mark of a river or stream, except for necessary portage purposes.

• Does not provide access to floodplains, ditches, canals or private water impoundments.

• Does not allow instream use of motorized wheeled vehicles (motorcycles or ATVs).

• Strictly limits areas where camping and hunting is allowed.

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You can email [email protected] with your guess! See the answer in next week’s post. And there will be another one…

Last week’s photo was of the swinging suspension bridge over the Kootenai River near Troy.

Built by the U.S. Forest Service to access forest fires, the original foot bridge was destroyed by a flood in 1948. This bridge is now protected from flooding by Libby Dam. It offers a breathtaking view of the Kootenai River gorge directly below Kootenai Falls.

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Land and water access fights are not going away… They are only going to increase and become more intense. And, at the end of the day it’s a supply and demand problem. People migrate to Montana largely because of the lifestyle—the Last Best Place, right? It’s much the reason native Montanans and their kids choose to stay.

But, the supply in terms of the land and water resources is inelastic—much a microcosm of global growth.

The more the state grows in population, the more pressure the land and water resources receive. Simply that. Recreationists are like the water, they will follow the path of least resistance. But, the resistance is growing, obviously, as more and more people and money pour into the state and those already here put up barriers.

Landowners—old and new, large and small—have in one way or another invested in their property. They have a right to protect their investments.

It’s monetary, but not necessarily a matter of greed.

For the thousands of Montana farmers and ranchers who aren’t billionaire landowners, encumbrances can be a severe financial blow. In nearly every case easements devalue the land. By the way, Montana has been “For Sale” since the first settlers pushed their way across the plains and staked their claims.

And to say that “Montana is not for sale” is pure political rhetoric designed to fool you into believing everyone has an unfettered right to the state’s land and water!

Yes, the U.S. Constitution protects all property owners through the Fifth and Fourteenth Amendments’ Due Process Clauses and, more directly, through the Fifth Amendment’s Takings Clause. But, those Amendments like all the others are subject to being chipped away by the courts.

Some efforts like the Crazy Mountain Access Project are helping open access to public land. Of course we need more of those kind of collaborative agreements.

Before long the only people who’ll be able to recreate in Montana will be the Rambos and the Rockefellers.

Access to private and public land and water resources will continue to be a subject swirling around these posts. If you want to keep track of the ongoing debate, go to our archives at www.montanacharley.com. And of course reasonable and respectful arguments and commentary are always appreciated—email [email protected].