Month: January 2014

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.

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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 access. The legislature provided further sideboards regarding access at bridges, saying, “absent definition in an easement or deed to the contrary, the width of a bridge right-of-way is the same width as the right-of-way of the road to which the bridge is attached.” In other words, stay on the bridge unless the government owns the land around it.

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.

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 from other states to justify their decision. In fact, the decision overturns a recent law passed in Montana that specifies that specifically did not give the public the right to trespass from prescriptive easements.