Missoulian: Property rights, conservation groups join Montana stream access lawsuit

Conservative property rights groups and conservation organizations have become involved in the bitter, eight-year legal fight over access to Montana streams from bridges.

Two conservative groups – the United Property Owners of Montana and the Political Economy Research Center – have filed friend-of-the-court briefs in the case between a sportsmen’s group and Madison County. In addition, Montana Trout Unlimited has entered the fray on the other side to support the Public Lands Access Association in the case.

The lawsuit, originally filed in 2004, was against the county over access to the Ruby River, near Sheridan, from a bridge on the property of James Cox Kennedy, a billionaire media heir. The case prompted the passage of a law by the Legislature that guaranteed bridge access from established county roads, but this year a Madison County district judge ruled that access for recreational use is not guaranteed on roads established by a historic use through a prescriptive easement.

Bruce Farling, Montana Trout Unlimited executive director, said the case has become the latest in a series of attempts to overturn the state’s stream access law. That law guarantees anglers and recreationists the right to access public waters by staying within the ordinary high water mark of rivers and streams.

“They want to wreck the stream access law to keep people off of three bridges,” he said. “It could have some pretty big implications around the state.”

But Reed Watson, a Political Economy Research Center research fellow and applied programs director, said his group filed the brief as a statement that allowing public access to all waters can harm a fishery. That was at issue in the Mitchell Slough case, where rock star Huey Lewis had made major habitat improvements on a side channel of the Bitterroot River – before the Montana Supreme Court ultimately ruled the public had access to the waterway after a legal fight with sportsmen.

“In some instances, private ownership leads to good stewardship of environmental resources,” he said. “In many cases, such as the Mitchell, there were measurable, definite public benefits that flowed out of the private land and into the public river – the Bitterroot River.”

Watson added that the slough is a spawning ground for trout and anglers can step on the eggs. And he said that as public access to water is continually expanded, it takes away the incentive for private landowners to make improvements.

“Having public access to a lot of water is not driving the fact that there’s a lot of good fishing,” he said.

Margot Ogburn, a Bozeman lawyer representing the United Property Owners of Montana, said her client filed its brief because it wants to protect property owners’ rights in Montana.

“We were just asking the Supreme Court to affirm the district court’s most recent decision,” she said.

Farling, however, disputed the assertion from Watson that private ownership of waters is a recipe for better habitat. He said Montana has the most liberal stream access law in the nation and the best trout fishing and that’s because when the public has a stake – it cares for the resource.

Matt Clifford, a lawyer who filed the brief for Trout Unlimited, said the case and how it could affect the stream access law also could have implications for Montana’s trout fishing industry.

“We’ve got a huge recreational fishing industry that’s established here that’s built up around stream access,” he said. “This is just the latest challenge and we certainly hope this puts it to bed once and for all.”

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