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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Supreme Court’s bison transfer decision a big win for landowners

The Montana Supreme Court recently decided a lawsuit brought by landowner and multiple-use groups, including UPOM, against FWP for their transfer of Yellowstone Park bison to the Fort Peck Indian Tribe.  Our objection wasn’t that the bison were transferred, per se, but that FWP did not follow the law requiring landowner notification and collaborative planning before bison could be transferred.  We ultimately lost the case on the grounds that the legislature did not specify that that law applied to transfers to tribal property, in addition to public and private property. However, we won on a much bigger issue.  In the decision, the Court pointed out that the bison in question were placed in captivity, and therefore no longer fit the definition of “wild bison.” Environmental...

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Oped: Property rights trump ‘public trust doctrine’ in Turner bison dispute

By Professor James L. Huffman In her report on Judge Holly Brown’s dismissal of a challenge to the Department of Fish, Wildlife & Parks agreement with Ted Turner on the management of Yellowstone Park bison (Bozeman Chronicle, May 12, 2013), the Chronicle article states the following: “Under the public trust doctrine, which applies nationwide, the state has the responsibility to manage and maintain resources like water and land for public use and future generations.” Only in the dreams of the petitioners does that summary of the public trust doctrine have any relation to the law. Even in Montana, where the public trust doctrine was dramatically revised 30 years ago in two Montana Supreme Court cases, the doctrine has never been found to apply to wildlife or beyond the waters of the state. The...

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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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The PPL decision explained, and what it means for stream access

The U.S. Supreme Court’s unanimous decision in PPL v. Montana, a case dealing with the state’s attempt to charge rent for the use of streambed property it did not own, is now at the core of arguments against Montana’s stream access laws.  Why? James L. Huffman, Dean Emeritus at the Lewis & Clark Law School and Member of the Hoover Institution Task Force on Property Rights, Freedom, and Prosperity, wrote an excellent piece for the Cato Institute:  “PPL Montana v. Montana: A Unanimous Smackdown of a State Land Grab.”  Read the full article here.  We’ve summarized the high points below.

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Consequences of the “Public Trust” doctrine

In the debate over stream access we often hear about the “public trust” doctrine as justification for impeding on private property rights.  Our friends at PERC offer an explanation of how this judicial precedent took on a new life in Montana…and the consequences that it’s had.  Here’s an excerpt: The idea that the public has rights to access resources such as water and wildlife—even if those resources are found on private property—found its way into Montana law through the public trust doctrine. Legal scholars and judges have expanded this historical doctrine beyond its constitutional limits to mean that landowners cannot deny access to resources owned by the public. This expansion infringes on private property rights by taking away the owner’s ability to restrict...

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