Tag: stream access

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.

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 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.

There are two sides to every story. Unfortunately, all too often there is one side that is championed by the media and one side that is downplayed. UPOM is dedicated to ensuring that the rights of Montanas landowners are protected in the ongoing battle to uphold private property rights.

The video on the Mitchell Slough controversy, produced by the Property and Environmental Research Center (PERC), gives a very good explanation of the Mitchell Slough case and what that case really meant for private property owners across the state of Montana.

Excerpt from an opinion by PERC’s Terry Anderson on the upcoming Montana Supreme Court hearing on stream access:

The openness of our legal system is especially important in this case. The plaintiff, now calling itself the Public Lands/Water Access Association, challenges the legality of Madison County’s resolution to permit James Kennedy, a landowner from Georgia, to attach a private wood rail fence to a bridge across the Ruby River.

Beyond the legal technicalities, this case is about the rights of a private landowner to limit access to his property. PLWA portrays itself as David—a local, citizen sportsmen group—against Goliath—a wealthy, out-of-state landowner. In fact, this is a long-standing campaign by the association, dressed up in public-interest clothing, to gain access to waterways across the state even if access means trespassing. Since the stream access judicial and legislative battles began in the 1980s, the question has been whether public access constitutes a taking of private property rights without compensation.

UPOM President Mark Robbins responds to a letter to the editor in the Helena IR this week:

Tony Schoonen says Madison County landowner James C. Kennedy has been in court since 2009 trying to destroy stream access (Helena IR, 4/10/13). Schoonen also claims that when Public Land/Water Access (PLWA) sued Kennedy and sponsored a “float-in,” Jim Kennedy had electrified fences at the bridge.

Judge Tucker didn’t see it that way when he dismissed PLWA’s legal claims against Jim Kennedy’s fences.  In fact, the court record proves that the fences that PLWA litigated and protested were made of wood posts and rails, not electric wire.  The judge said Jim Kennedy’s fences were lawful in all respects and did not block any public travel right, based in large part on testimony from Schoonen himself. I guess he wasn’t under oath when he wrote to the newspaper.