A new organization, called the Montana Public Trust Coalition, has been created by the same old leftist activists groups who have for years been attacking Montanans’ property rights. Expanding the public trust doctrine to apply to wildlife has been the north star for these activists since the 1970s. If wildlife were to be held in a public trust, all private property rights would be superseded, allowing hunters to trespass without recourse.
Two public trust proposals were introduced during the 1972 Constitutional Convention, and both were wisely rejected. Contrary to the claims of some, a public trust doctrine for wildlife is not the law in Montana.
We’ve created a fact sheet to knock down the myths of the public trust doctrine. You can download it by clicking here.
In a recent ruling in an important case involving stream access, District Court Judge Loren Tucker in Madison County determined that issues concerning the balance of private property rights and prescriptive easements must be determined on a case-by-case basis, using evidence of County maintenance needs.The public’s desire for access is not a factor.
Judge Tucker’s determination was made at the request of the Montana Supreme Court, which concluded that a public right-of-way exists on the Seyler Lane bridge which crosses the Ruby River in Madison County. While the Public Land/Water Access Association (“PLWAA”) have been eager to claim that Judge Tucker’s ruling was a victory for anti-property rights groups, the decision and its consequences are not so clear-cut.
In the dispute between PLWAA and Madison County it was noted that while most county roads have a right-of-way of 60 feet that is established through dedication of a public easement, Seyler Bridge was established through prescription (i.e. continuous public use) not dedication.PLWAA argued that the public should be granted a 60-foot easement to be used for public access to the river.Judge Tucker rejected that claim and instead granted a 5-foot easement on either side of the bridge, stating:
“Madison County and the State of Montana via their agents have traveled upon a strip of ground between the abutments and the high water marks of the river extending an average of approximately 5 feet upstream and downstream from the ends of the bridge abutments. These distances inform the court of that which is reasonably necessary for use, maintenance and enjoyment.”
Often times the first casualty in politics is the truth. Currently, the Democrats are using out-of-state dark money to bastardize the truth relating to Greg Gianforte and stream access issues. In reality, Gianforte’s approach to stream access is the ideal balance between public access and property rights, which is where most Montanans position themselves.
Yes, it is correct that in 2009 Gianforte filed to Quiet Title against the Montana Fish, Wildlife and Parks (“FWP”) due to a factual and legal discrepancy of where the public access should be on Gianforte’s property. This type of suit is a common tool for landowners to use in order to allow the courts to sort out these types of factual and legal issues. Instead of serving the suit, Gianforte’s attorney sent FWP letters and emails. FWP corrected their mistake, moved the access point, provided fencing and worked with Gianforte to allow public access and protection of private property rights.
Instead of being against public access, as the Democrats are alleging in ads, and as proclaimed by Governor Steve Bullock, Gianforte actually worked to provide the public with better access while protecting his property rights. This the real Montanan position.
It is Governor Bullock who is out of touch with Montanans. In 2012, Governor Bullock used his position as Attorney General to bully a rancher in White Sulphur Springs to provide public access over his private property where public access does not exist. This issue is still being litigated. It is Governor Bullock who has sided with out-of-state interests and money to work against rural Montanans who are part of Montanans’ agricultural tradition. Agriculture is still the number one contributor to the economy in Montana.
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 fact it would have the opposite effect. But the outcome for the environment doesn’t matter for supporters of this rule, they just want more control.
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.
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.
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.
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 allowed to use the easement across Kennedy’s land to get to the river, but that portion of the river itself belongs to Kennedy because it is classified as a non-navigable stream.
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.
