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Tag: stream access

Waters of the US rule is about control, not conservation

It’s safe to say all Montanans enjoy our lakes, rivers and streams and wish to ensure that they remain healthy for years to come. No group values our water more than Montana’s agriculture producers. They’re the primary stewards of our water and their conservation efforts benefit all Montanans. That could all change, however, if the EPA gets their way. Their newly proposed “Waters of the United States” rule would flip our water conservation model, ultimately turning what landowners now consider an asset into a huge liability. History has shown when that happens, our environment pays the price. Let’s be clear on what this rule is about. It’s an attempt to expand the power of the federal bureaucracy to control what happens on private land. This rule is not about protecting water resources—in...

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Oped: Access for all but stewardship for not

By Terry L. Anderson and Reed Watson of PERC When the Montana Constitution was rewritten in 1972, no one would have thought that the clause stating all waters “are the property of the State for the use of its people” would lead to an erosion of private property rights to land. But it has as Montana’s activist Supreme Court has used the clause to favor stream access over private property rights. … With landowners outraged by the ruling, the legislature tried to slow the erosion of property rights in 1985 by passing the “Stream Access Law.” The law limits recreation to activities such as fishing, hunting, swimming and floating and limits access to areas between the high water marks, specifically excluding irrigation ditches. It also limits access across posted private property to gain...

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Oped: Stream access decision bad news for landowners

By Senator Debby Barrett The Montana Supreme Court’s recent ruling on an important stream access case represents an alarming expansion of access law at the detriment of property rights. But despite headlines announcing a win for stream access, the court all but ignored the 1,000-pound gorilla in the case: whether Montana’s stream access law is constitutional. Ultimately, if the appellants are successful in appealing to the U.S. Supreme Court, the case may yet prove to restore the property rights that were taken from Montana landowners 30 years ago.

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Montana landowners react to Supreme Court decision on road easements

Opportunity to appeal to U.S. Supreme Court could overturn Montana stream access law Montanans awoke today to find their Constitutional property rights further eroded by the Montana Supreme Court, which has upended over 100 years of established road law in a new decision released today. The implications of the ruling are far reaching for landowners throughout the state and a serious blow to the right of Montanans to own, use, and enjoy their property. The decision could ultimately lead to a bigger win for landowners, however, because it may give an opportunity to appeal to the U.S. Supreme Court on the larger issue of the Constitutionality of Montana’s stream access law. In a dissent to the decision, Justice Laurie McKinnon noted that the Montana Court had to import prescriptive road law...

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Oped: Court erodes foundation of state’s stream access

Professor James Huffman expalins how the United States Supreme Court’s PPL decision undermines the legal theory underlying Montana’s stream access law; click here for the full opinion in the Missoulian. Here’s an excerpt: “The unanimous United States Supreme Court decision in PPL v. Montana was a judicial smackdown of Montana’s attempt at a massive land grab. The decision dismantled a legal theory that would have led to the state’s expropriation of thousands of miles of privately owned streambeds. At the same time, it called into question the legal underpinnings of Montana’s 30-year-old stream access law.

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Helena IR: Justices hears arguments in stream access case

The Montana Supreme Court heard arguments Monday in a case that may affect whether anglers and recreationists can access easements across private property and certain rivers below the high-water mark. The Public Lands Access Association filed the lawsuit in 2004 after Madison County landowner James Cox Kennedy erected electric fences that blocked an easement across his land and leads to the Ruby River. No trespassing signs also were attached to three Madison County bridges. Montanans have the right to use the state’s streams below the high-water mark and the right to use Montana’s public roads to access those streams, Public Lands Access Association attorney Devlan Geddes argued. Kennedy’s attorney, Peter Coffman, disputed that, saying that not only was the public not...

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