Landowners challenge state's stream access law
By Perry Backus, of The Montana Standard, 06/14/2000
DILLON -- Three Montana landowners represented by a Denver law firm are hoping to overturn Montana's stream access law in a suit filed last week.
The Montana Fish, Wildlife and Parks Department and sportsmen are vowing to fight.
The Mountain States Legal Foundation and the landowners filed suit on May 31 in Montana federal district court alleging that the Montana Stream Access Law violates rights guaranteed under the U.S. Constitution, according to a foundation news release.
No one at Montana Fish, Wildlife and Parks had seen the lawsuit as of Monday afternoon.
The release said Harvey and Doris Madison of Absarokee, who own prop erty on the Stillwater River; Charles and Elena d'Autremont of Alder, prop erty owners on the Ruby River, and Harrison Saunders of Ennis, who owns property on the O'Dell Creek, filed the suit.
The landowners allege that the Stream Access Law deprives them of their privacy, denies them income for the use of their property while enriching others who use their prop erty, and subjects their property to abuse and mis use, including harassing and disturbing livestock and residents, leaving garbage and building fires. As a result, they allege the Stream Access Law vio lates the due process clause of the U.S. Constitution.
`` One of the constitution al hallmarks of private property ownership, regardless of how large or small that property may be, is the right to exclude others,'' said William Perry Pendley of the Mountain States Legal Foundation. `` The Montana Stream Access Law denies that constitutional right to prop erty owners along non-nav igable streams, turning their property into public parks. As a result, those property owners pay taxes on and maintain their prop erty, but all others may use that property as if it were their own.''
Montana's Stream Access allows access between the high water marks on a river or stream. It was established from a Montana Supreme Court ruling in 1984 and adopted by the Montana State Legislature in 1985. It was challenged again in the Montana Supreme Court in 1987 and except for a few minor changes is the same law as stands today.
The d'Autremonts from Tucson, Ariz., asked the state in 1998 to restrict recreational access on the portion of the Upper Ruby River that runs through their property, but their petition was denied.
The Bozeman Chronicle reported in November 1999 the Mountain States Legal Foundation was soliciting landowners to challenge the Stream Access Law. Pendley denied that in a December 1999 letter to the newspaper.
Tony Schoonen of the Public Lands Access Association said this is an issue that will bring sports men together.
`` I'm sure sportsmen will do whatever it takes to defend stream access,'' he said.
FWP Director Patrick Graham said he had yet to see a copy of the suit on Monday.
`` We will defend the Stream Access Law to the fullest extent of our capa bilities,'' he said. `` I do think it's unfortunate that the state has to go through this again. I thought we had put this behind us.''
`` Apparently not,'' he said.
Used with permission of the Montana Standard.
Groups rally to preserve access to state waters
By Perry Backus, of The Montana Standard , 07/27/2000
A coalition of river recreationists, conserva tion organizations and sportsmen groups announced Wednesday it will intervene in a law suit seeking to overturn Montana's Stream Access Law.
The suit was filed May 31 on behalf of three Montana landowners by the Mountain States Legal Foundation, a Denverbased group of lawyers. It claims the 1985 law violates the landowners' private property rights by depriving them of their privacy and denying them income potential from use of their property.
Montana's Stream Access Law allows people to access Montana's rivers and streams up to the ordinary high water mark.
The law dates back to 1984 when the Montana Supreme Court decided two separate challenges to the public's right to recreate on the state's rivers and streams. Based on those court decisions, the 1985 Montana Stream Access Law was enacted by the Legislature as a result of compromise between stockgrowers, landowners, river recreationists and the sporting public.
The newly formed coalition is comprised of members and affiliates of the Montana Wildlife Federation, Montana Trout Unlimited, Fishing Outfitters of Montana, Organization United for Rivers and Streams and the Montana Coalition for Stream Access.
The Montana Coalition for Stream Access played a pivotal role in the 1984 Montana Supreme Court rulings upon which the 1985 law was based. At that time, Bozeman lawyer Jim Goetz represented the coalition.
Goetz has been retained by the new coalition.
Dick Dolan, a lawyer with Goetz's firm, said Wednesday that the firm is preparing the motion to intervene.
`` This is the most insidious challenge confronting Montana floaters and anglers since the early 1980s,'' said Tony Schoonen of Ramsay. Schoonen was one of the first members of the original Montana Coalition for Stream Access. `` The 1985 Stream Access Law has worked exceptionally well and it is a travesty to allow some out-of-state law group to engineer this new attack on the public's right to recreate on Montana's public waters.''
The Denver-based lawyers are representing Harvey and Doris Madison of Absarokee, who own property on the Stillwater River; Charles and Elena d'Autremont of Alder, property owners on the Ruby River; and Harrison Saunders of Ennis, who owns property on O'Dell Creek.
`` One of the constitutional hallmarks of private property ownership, regardless of how large or small that property may be, is the right to exclude others,'' William Pendley of the Mountain States Legal Foundation said when the suit was filed. `` The Montana Stream Access Law denies that constitu tional right to property owners along non-navigable streams, turning their property into public parks. As a result, those property owners pay taxes on and maintain their property, but all others may use that property as if it were their own.''
Bill Janecke, board member with the Organization United for Rivers and Streams, said he knows of new Montana residents who've moved from Colorado because they can no longer gain access to fish on many of that state's rivers and streams. Montanans are fortunate to have a law that allows use of the state's public waters, he said.
`` The law has since been widely accepted as a part of our `Montana way of life' by all but a few antago nists,'' said Janecke. `` Right now we have a wonder ful law in place that we need to work to ensure that it stays intact.''
There is danger that the stream access law could be slowly chipped away by legal haggling and `` once it's lost, it's lost forever,'' Janecke said. `` All that has to happen is that we lose once. We will have to defend this very important law forever.''
Used with permission of the Montana Standard.
Judge backs state case on stream access
Judge throws out lawsuit challenging 15-year-old law
BY BOB ANEZ, Associated Press writer 12/14/2000
HELENA -- A federal judge Wednesday threw out a portion of a lawsuit challenging Montana's stream access law and appeared to agree with lawyers for the state and conservation groups that the remainder of the suit has little chance of survival.
In a hearing here, U.S. District Judge Charles C. Lovell of Helena hinted that those filing the suit may have waited too long to challenge the law and he may not have authority to con sider the complaint.
Lovell summarily dismissed as a defendant the state Department of Fish, Wildlife and Parks by agreeing with gov ernment lawyers that the U.S. Constitution prohibits states from being sued in federal court.
But he left in place the other defendants: department Director Pat Graham and members of the Fish, Wildlife and Parks Commission.
The suit, filed last May by three landowners, contends the 1985 law permitting public recre ational use of rivers and streams between the high-water marks violates their due process rights under the U.S. Constitution.
The complaint contends the law deprives the owners of their property and subjects their land to misuse. It targets a portion of the access law that allows public use of non-navigable rivers and streams and does not challenge the law permit ting public use of navigable waters.
Executive Assistant Attorney General Steve Bullock argued that the law cannot violate the landowners' rights so long as the state has a ratio nal basis for enacting such a law.
He said the law must be upheld as the state's legitimate efforts to define the public's ability to use a public resource and to strike a balance between the rights of private landowners and those wanting to use public waters.
The lawyer for the Montana Wildlife Federation, Montana Council of Trout Unlimited, Montana Coalition for Stream Access and the Fishing Outfitters Association of Montana offered Lovell other reasons to reject the suit.
James Goetz of Bozeman said the complaint comes long after a three-year time limit for filing such a suit. He also said the same issue raised in the case already was settled in a Montana Supreme Court case challenging the law shortly after it passed.
Lovell suggested opponents of public access to waterways were even more tardy than Goetz believes. The 1972 Montana Constitution, which declared all waters in the state are `` the property of the state for the use of its people,'' provided notice of the public nature of rivers and streams, he said.
`` The parties have slept on their rights for some 20 to 30 years,'' Lovell said.
He also questioned whether he has the authori ty to overturn Montana Supreme Court rulings upholding the stream access law, as the suit seems to request.
William Pendley, a Denver lawyer working for the Mountain States Legal Foundation and repre senting the landowners, argued that Montana's Constitution never warned property owners adja cent to streams that the riverbeds and banks also were considered available for public use.
He said the issue being raised in the suit is dif ferent than those addressed in the state Supreme Court case, so Lovell would not have to overturn any of the high court's rulings.
This suit claims the law violates the federal Constitution; the earlier court case claimed a vio lation of the Montana Constitution, Pendley said.
`` All we seek is an answer as to whether the law is consistent with the federal Constitution,'' he told Lovell.
The judge did not indicate when he will rule.
Used with permission of the Montana Standard.
State's stream access law stands
Judge throws out lawsuit challenging 15-year-old law
BY BOB ANEZ, Associated Press writer 01/05/2001
HELENA - A federal judge on Thursday threw out a lawsuit challenging part of a 15-year-old law giving Montanans the right to use the state's rivers and streams for recreation.
The decision by U.S. District Judge Charles C. Lovell accepted all the arguments from lawyers for the state and conservation and outfitting groups.
Landowners filing the complaint waited too long to contest the law or the Montana Constitution's provision on which the law was based, Lovell said. He also said the suit failed to show the state did not have a legitimate public purpose for enacting the stream access law and that his court has no authority to review a 1987 Montana Supreme Court decision upholding the law.
"The decision makes mincemeat of the complaint," said James Goetz, a Bozeman attorney fighting the lawsuit for the Montana Wildlife Federation, Montana Coalition for Stream Access, Montana chapter of Trout Unlimited, and the Fishing Outfitters Association of Montana. "It's unusual that you get such a sweeping, comprehensive victory. This is a total rout."
Attorney General Mike McGrath called Lovell's ruling an "extraordinarily broad-based decision."
"It's a major victory for the people of the state of Montana and I would hope that this is the end of it," he said. "It's clear from the decision that it's a suit that doesn't have any merit."
William Perry Pendley, attorney for the Denver-based Mountain States Legal Foundation, said the ruling likely will be appealed to 9th U.S. Circuit Court of Appeals.
He represented the three Montana landowners who argued that the 1985 law permitting public recreational use of rivers and streams between the high-water marks violates their due process rights under the U.S. Constitution.
The complaint said the law deprives the owners of their property and subjects their land to misuse. It targeted a portion of the access law that allows public use of non-navigable rivers and streams and did not challenge provisions permitting public use of navigable waters.
To have a chance of winning their case, the landowners had to show that the state acted irrationally and arbitrarily in passing the law and could have no possible public purpose in doing so, Lovell noted.
"It is abundantly clear that the plaintiffs cannot show that the stream access law has no public purpose and, in point of fact, plaintiffs have not made any real effort so to do," he said.
Lovell said the state provided plenty of obvious, rational reasons for the law, including serving the public's desire to use waterways for recreation, promoting tourism and the economy, and managing Montana's natural resources and wildlife.
The law "clearly and substantially advances a legitimate government interest and cannot be said to be irrational or arbitrary," he wrote.
He chided the landowners for waiting so long to go to court, missing by a dozen years the three-year deadline for such a lawsuit to be filed.
What's more, the 1972 Montana Constitution actually gave the first warning that public ownership of rivers and streams could affect the rights of adjacent property owners, yet no legal action was taken in the nearly 30 years since that document was adopted, Lovell said.
He said that "it appears to this court that the plaintiffs have slept on their rights far too long."
Lovell said the constitutionality of the stream access law was upheld in the state Supreme Court's decision 13 years ago and opponents did not appeal that loss to the U.S. Supreme Court, as was their option. He said his court does not have the power to second-guess the state's high court.
Pendley said an appeal would challenge all of Lovell's findings, including the conclusion that property ownership is not a fundamental constitutional right. He also said Lovell was wrong to decide Montana's law does not conflict with other court rulings that even minimal intrusion on another's property is not allowed.
Used with permission of the Montana Standard.
Stream Access Law -- Landowners challenges fading away
By Perry Backus, of The Montana Standard, 01/06/2001
DILLON -- A lawsuit chal lenging Montana's 15-year-old law that allows recreationists to use the state's rivers and streams may be the last gasp for those seeking to overturn it, according to a lead lawyer for the Montana Department of Fish, Wildlife and Parks.
On Thursday, U.S. District Judge Charles C. Lovell threw out a lawsuit challenging a por tion of the Montana Stream Access Law. Lovell said the landowners filing the suit wait ed too long to contest it. They also failed to show the state didn't have a legitimate public purpose for enacting the law. He also said his court didn't have authority to review a 1987 Montana Supreme Court deci sion upholding the law.
However, William Perry Pendley, lawyer for the Denver-based Mountain States Legal Foundation, said he believes Lovell's ruling on six sepa rate points `` are in error.'' He said an appeal would be filed `` in days, not weeks,'' to the Ninth U.S. Circuit Court of Appeals.
Fish, Wildlife and Parks lawyer Bob Lane said that while it's hard to predict what a court might decide, `` we've always felt the state's case was solid. Judge Lovell's decision does nothing to change that opinion, especially considering he upheld every argument we had.''
If Lovell's ruling holds, Lane said this could mark the end of the legitimate challenges to the state's stream access law.
The complaint challenged a portion of the access law that allowed the public to use non-navigable rivers and streams. The landowners said the law deprived them of their property and allows it to be misused. The landowners filing the law suit were Harvey and Doris Madison of Absarokee, who own property on the Stillwater River; Charles and Elena d'Autremont of Alder, property owners on the Ruby River; and Harrison Saunders of Ennis, who owns property on the O'Dell Creek.
Pendley said he plans to challenge Lovell's ruling, including his conclusion that property ownership is not a funda mental constitutional right under the U.S. Constitution.
Tony Schoonen of the Montana Coalition for Stream Access said sports men groups around the state are `` tick led'' with Lovell's decision.
`` We're really elated that this impor tant law that's been in place for 15 years has been upheld,'' said Schoonen.
Schoonen said he doesn't believe this will be the last time the law will be chal lenged.
`` There are too many wealthy, non-resi dents who can spend the kind of money it takes to challenge it,'' he said. `` This has been a good law, a comprise that started right here in Butte. I'd like to see it fin ished once in for all.''
The coalition was one of four groups that intervened in the case.
The Montana Wildlife Federation was another. Its field operations director, Brian Logan, said Lovell's decision `` is something that Montana's sportsmen and general recreationists should be very pleased with '85 it ensures that the public trust will be preserved for the people of the state.''
Used with permission of the Montana Standard.
Stream access law upheld
By Bob Anez of The Associated Press, 12/27/2002
HELENA -- A 17-year-old state law that guarantees Montanans the right to use the state's rivers and streams for recreation has survived another legal challenge.
The 9th U.S. Circuit Court of Appeals in San Francisco upheld a lower-court ruling nearly two years ago that threw out a lawsuit claiming the stream access law violated several landowners' constitutional rights.
The three-judge panel unanimously agreed with U.S. District Judge Charles C. Lovell of Helena that the complaint was technically flawed and, therefore, had to be dismissed.
Amanda Koehler, a lawyer for the landowners, did not immediately return a phone call seeking comment Thursday on whether an appeal was being considered.
`` It's nice Christmas news for the recreation ists of Montana,'' Jim Goetz, a Bozeman lawyer who represented conservation and sportsmen groups defending the law, said Thursday.
`` I think it's solidly based and it's going to be hard for them to get (the ruling) overturned,'' he added.
The lawsuit was filed by the Denver-based Mountain States Legal Foundation on behalf of three Montana landowners who argued the 1985 law deprives them of liberty and property with out due process.
The law says the banks of streams and rivers -- from the water's edge to the high-water mark on the banks -- must be open to the public, even when the river or stream cuts through pri vate property.
The appeals court agreed with Lovell, however, that the lawsuit should have been based on another constitutional provision that prohibits private property from being taken for public use without proper com pensation. That is referred to as the `` tak ings clause.''
The court said the harm alleged in the lawsuit comes from the landowners' inabil ity to exclude others from using their property. Therefore, the legal issue was not due process rights on which the landowners erroneously built their claims, Judge Stephen Trott wrote for the court.
The appeals court also agreed with Lovell that the stream access law is not unconstitutionally vague because it allows portage around artificial barriers, but doesn't mention what happens when floaters or anglers encounter natural bar riers.
That claim by the landowners must fail because they did not prove any such natur al barriers exist along the waters crossing their properties, the judges said.
But even if they had shown such barri ers can be found, the law still would stand because `` we see nothing vague about the statute,'' the court added. `` The state Legislature simply decided not to address the issue of natural barriers.''
In addition to the state, those defending the stream access law were the Montana Wildlife Federation, Montana Coalition for Stream Access, Montana chapter of Trout Unlimited, and the Fishing Outfitters Association of Montana.
Used with permission of the Montana Standard.
Stream access law upheld
By Matt Gouras of The Associated Press, 05/29/2003
HELENA - Montana's stream access law has survived an appeal to the U.S. Supreme Court, the state's attorney general said Wednesday.
The 1985 law, praised by many anglers and boaters for letting them get at streams that run through private property as long as they stay within the ''high water'' mark, was challenged by landowners who said it deprived them of liberty and property without due process.
The U.S. Supreme Court decided Tuesday it was not going to hear an appeal from the same landowners, who first had their case dismissed in District Court in Helena.
That decision was first appealed to the 9th U.S. Circuit Court of Appeals in San Francisco, which in December upheld U.S. District Court Judge Charles Lovell's decision that the law was constitutional.
Now that nation's highest court has decided to leave it alone, the case is over, officials said.
''I'm glad this issue is finally put to rest,'' said Montana Attorney General Mike McGrath. ''It is good news for all anglers in Montana.''
He said the state's stream access law would probably be safe from future challenges, now that a broad appeal has been shot down by the nation's highest court.
''It is a done deal,'' he said.
In addition to the state, the Montana Wildlife Federation, Montana Coalition for Stream Access, Montana chapter of Trout Unlimited, and the Fishing Outfitters Association of Montana, had defended the 17-year-old state law, which guarantees Montanans the right to use the state's rivers and streams for recreation.
The law says the banks of streams and rivers - from the water's edge to the high-water mark on the banks - must be open to the public, even when the river or stream cuts through private property.
The lawsuit was originally filed by the Denver-based Mountain States Legal Foundation on behalf of three Montana landowners.
Used with permission of the Montana Standard.
Montana's stream access law appreciated in its 20th year
By Perry Backus of The Montana Standard, 05/02/2005
Tony Schoonen and Tom Bugni, in photo at right, were instrumental in getting Montana's stream access law through the courts and the Montana Legislature. |
DILLON - Every year, thousands pack up their gear each spring and head to Montana's rivers and streams to enjoy a day of fishing.
They'll pull on their waders and ease into the water, careful to stay within the high water marks. Others will pile into a boat and drift downstream, stopping along an occasional gravel bar to try a cast or two into a likely looking pool.
All of them will be taking advantage of Montana's unique stream access law, which celebrates its 20th anniversary this year.
For most, the law is old hat - something to be taken for granted. But it wasn't always that way.
Thirty years ago, fishing on some of Montana's rivers could be a dangerous experience.
Back then, landowners were just starting to understand the recreational value of property bordering blue ribbon trout streams, especially if there was any chance that the public could be excluded. A few took measures to the extreme to keep anglers out.
After reports of harassment of anglers on the Deerborn and Smith rivers filtered back to Butte in the late 1970s, some folks got together and started talking about what could be done. Tom Bugni and Jerry Manley stepped forward to start a fledgling organization called the Montana Coalition for Stream Access.
And the fight was on.
The pair met with a young Bozeman lawyer named Jim Goetz at the Steer Inn by Three Forks. Goetz was just starting his law career and after the meeting agreed to go to work for the new organization at the fee of $35 an hour-- half the going rate.
"He suggested that we form an organization throughout the state," remembers Bugni. "We had meetings with groups from all over Montana. People agreed to help."
At the time, Montana Fish, Wildlife and Parks (then called Montana Fish and Game) didn't want to take a lead role in the controversial cause, Bugni said. The state did offer quite a lot of behind the scenes help, he said.
"We were working closely with Don Bianchi behind the scenes," Bugni said. "The Fish and Game was concerned about what was happening, but they didn't want to take it on... Bianchi helped us quite a lot."
In 1977, the coalition filed its first lawsuit against Michael Curran, a landowner on the Deerborn River. Curran controlled some six or seven miles of lands bordering the Deerborn River and claimed title to its banks and streambed.
"We thought we had enough money, barely, to work our way through the suit," said Bugni. "Just barely enough though."
Money was always an issue. There were times when bills from Goetz would come in and there wouldn't be enough in the bank to cover it. After all, it took a lot of $25 pins and membership fees to raise the thousands needed to cover mounting legal bills.
"We'd get bills for $3,000 to $4,000 and I'd call up Jerry and ask him what in the world are we going to do now," remembers Bugni.
And so when some outfitters and fishermen came to the group asking for them to take another lawsuit against a Beaverhead River landowner just downstream from Clark Canyon Reservoir, Bugni said he hesitated a bit.
"I remember Monte Hankinson calling up and asking us to hold a meeting in Butte. He wanted to know if we'd take on the Beaverhead as well," said Bugni.
Hankinson promised to help raise the necessary funds and Bugni said he did just that.
"He and some others down there did a great job," Bugni said.
The legislature considered the issue on two separate occasions. The first time around, it was a bill that covered only the rivers considered navigable. That bill died.
In the meantime, the court cases made their way to the Montana Supreme Court.
In 1984 the court ruled in a six-to-one decision that "The public has the right to use Montana's rivers and streams that are capable of recreation use, up to the ordinary high water mark."
Stream access advocates were overjoyed.
"The Supreme Court gave us way more than we ever expected," said Tony Schoonen, another longtime advocate for stream access.
"I was incredibly happy to hear that decision," said Bugni. "It meant that I'd be able to fish on all the rivers and streams that I'd enjoyed all my life."
The very next year, the Montana legislature passed the landmark stream access law.
The law, passed by the Montana legislature in 1985, allows recreation access between the ordinary high water mark of rivers and streams. It states "that the public, without regard of the ownership of the land underlying the waters, may use rivers and streams for recreational use up to the ordinary high water mark."
"Everything fell together just right," Bugni said. "Along the way there were so many people who stepped up to help us."
In total, Bugni said the coalition raised somewhere between $75,000 and $80,000 for legal bills--which was money well spent.
"Jim Goetz was just a piece of work. He was just brilliant at being able to look at the whole picture," Bugni said. "We couldn't have found a better attorney."
The law has survived a number of court challenges over the years.
"Stream access opened the eyes of a lot of people," Schoonen said. "It never really was the old time landowners that caused the problems. The old guys never did care if you went fishing on their property."
The law can trace its roots back to an 1892 Supreme Court case that defined the basis of the Public Trust Doctrine by stating "the State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them under the use and control of private parties..."
"This goes a long ways back and these newcomers don't realize that," said Schoonen. "It goes clear back to the Louisiana Purchase."
Used with permission of the Montana Standard.
Montana stream law still hot
By Susan Gallagher of the Associated Press, 08/13/2005
Tom Bugni is seen Thursday at his home in Butte. The law that Bugni and others helped bring about in the 1980s put Montana out front in the West on the issue of access to natural resources, access that some people cite as the very reason for living in the state, known for extraordinary fishing and hunting. Walter Hinick photo. |
HELENA - The 1980s lapel buttons had been stored for years in Tom Bugni's home, leftovers from the successful campaign for a Montana law guaranteeing public access to streams for fishing and floating.
But this summer, Bugni, of Butte, retrieved the Montana Coalition for Stream Access buttons, handing them out to some of the dozens of people who descended on the Ruby River in southwestern Montana last month to reassert the public's right to be on the water.
They rafted about 10 miles, passing through private land where access to the Ruby is under dispute - some fishing lodges advertise the Ruby as a "private river" - even as the stream access law marks its 20th anniversary.
Reduced to its simplest, the statute says that even where they flow through private land, Montana's rivers and streams are open to all if reached from public property; the land between the normal high-water marks belongs to the public. The law has been challenged in court with little success and continues to provide fodder for politicians.
Stream Access Float Day, which took place peacefully, was intended to show that disputes still surface regularly.
"Some people think they own the streams,'' Bugni said.
Critics say the law, on the books since 1985, violated private-property rights, increased streams' risk of environmental damage from heavy use, served the special interests of commercial fishing guides and hurt landowner-sportsmen relations.
The law that Bugni and others helped bring about in the 1980s put Montana out front in the West on the issue of access to natural resources, access that some people cite as the very reason for living in the state, known for extraordinary fishing and hunting.
"Montana is truly the last best place, not only because of our landscapes but because of what we're allowed to do on that landscape as citizens of this state,'' said J.W. Westman, a Park City oil company worker and avid fisherman.
But not everyone sees the law as a good thing, including landowners who have streams running through their property.
"There wasn't anything constitutional about it,'' said Lowell Hildreth of Dillon, who owned Beaverhead River property when the stream-access law took shape and was named in one of the lawsuits that gave rise to it.
One of the high-profile ongoing disputes involves the Bitterroot Valley's Mitchell Slough.
Landowners, among them 1980s rocker Huey Lewis, say it is a private irrigation ditch made hospitable to trout through costly restoration that landowners financed. Access advocates, with the Montana Department of Fish, Wildlife and Parks on their side, maintain Mitchell Slough is a public stream. About 50 participating in a 2003 ''fish-in'' were led to the barricaded water by a legislator and a retired justice of the peace with an emphatic, "Let's do it!'' Access disputes happen all over the country, even in states with strong laws, said Eric Leaper, executive director of the Colorado-based National Organization for Rivers.
"People say, 'Well, that doesn't apply on this little river,''' said Leaper, who calls Montana's law one of the more commendable.
"Whether it's the best in the country we should be better able to evaluate after we have all 50 of them lying in front of us,'' he said.
Montana's law gives people the right to use streams up to the normal high-water mark. Since Montana stream levels fluctuate a great deal each year with spring snowmelt runoff, that means that for most of the year there are dry channels and banks, and sand and gravel bars, that legally are public land.
Some anglers and others obtain permission to cross private property so they can get to streams. But a popular alternative is to reach a stream from a public access point - often a bridge along a public road.
That alternative is at the heart of another high-profile dispute on the Ruby River, involving Atlanta businessman James C. Kennedy. He owns about 3,200 acres along the prized trout stream and last year filed a lawsuit challenging access from bridges.
Hildreth said the stream law has increased trespassing and heightened tension between sportsmen and landowners, some of whom become more protective of their property by placing new restrictions on its use.
"You stop and think, 'If they're going to take my stream bed, I'm going to protect what I can,''' he said.
Another critic, Martinsdale rancher Jack Galt, said he has not experienced problems with trespassers but still believes ''there are still some bad things about that law.''
Landowners should have a say about access because often they pay taxes on stream beds, said Galt, a member of the Legislature when it passed the stream law in 1985. He opposed the legislation while it was pending, and after its passage he filed a court case charging the new law was overly broad.
Galt won some restrictions on public use of stream beds. Provisions the court struck down included an overnight camping clause and a requirement that landowners be responsible for constructing portage routes. But the core of the law stood.
In 2003, the U.S. Supreme Court refused to hear a case in which the Mountain States Legal Foundation challenged the law on behalf of Montana landowners claiming their private-property rights were violated. A federal judge in Helena had found the stream law constitutional and dismissed the case.
The first major legal battle over stream access came in the late 1970s, after Bugni and some other people from the Butte area raised the possibility of litigation and retained lawyer Jim Goetz of Bozeman to pursue it.
"I grew up in Ennis and as a kid, my brother and I used to float down the Madison in an old Army surplus rubber raft,'' Goetz said. ''This was in the '50s. Nobody ever questioned the right of people to float down the river.''
Goetz's clients prevailed in two cases. One involved the Dearborn River, where the late D. Michael Curran of Wolf Creek disputed access, and the other the Beaverhead, where anglers had a quarrel with Hildreth.
In 1984, the Montana Supreme Court held the public is entitled to use streams capable of supporting recreational activity, and the following year the Legislature put the access law on the books.
Westman finds the stream law always facing a challenge, but he sees ''a constant rising of the citizenry to combat that.''
"I think we should have cake and ice cream and punch to celebrate'' the law, Westman said. "We should celebrate ... every day of the year.''
Used with permission of the Montana Standard.
Rivers to stay open, AG says
By John Grant Emeigh of the The Montana Standard - 04/01/2007
Montana's rivers and streams are owned by the public and will remain open to the public, according to the state's top officials.
Gov. Brian Schweitzer and Attorney General Mike McGrath assured the members of the Public Land/Water Access Association Inc. (PLAAI) in Butte Saturday that the public will not be denied access to the state's waters.
The right for the public to access the state's streams and rivers without harassment from landowners was at the epicenter of the PLAAI's annual meeting at the Copper King Hotel Saturday.
McGrath, the state's top law enforcer, told the audience of nearly 100 members that he is on their side.
"The Montana Constitution makes it very clear that the public owns the rivers and streams," McGrath said.
McGrath noted that he grew up in Butte and regularly fished the Big Hole River with his father.
He said this issue isn't about "private property right," but it's about "public property rights." The state is involved in a hailstorm of lawsuits and debate by wealthy landowners attempting to block the public from getting access to Montana's free waterways.
Schweitzer, dressed in jeans, a canvas shirt and tennis shoes, told the PLAAI he wholeheartedly supports open access to rivers and public land. In a brief but rousing speech, the governor said he will only support legislation that keeps public access open to the state's rivers and streams.
"With this Legislature, I know you just assume it's going to hell in a handbasket, but it's not," Schweitzer said.
Schweitzer said he will not endorse legislation that blocks public access, because open rivers and streams are what keeps Montana's economy strong. He noted that "quality of life" in this state is spurting population and economic growth here.
Schweitzer said construction is the main enterprise that is driving the state's economy due to more people moving to the state. He claims people are coming to Montana to enjoy the public access to outdoor recreation.
"Do not shut down Montana's economy - make sure the gates are open" to the state's waterways, the governor said.
Schweitzer's comments drew a standing ovation from the PLAAI members.
John Gibson, president of the PLAAI, warned members that people must be vigilant in opposing landowners who attempt to block public access to waters. He said some landowners are using their money and status to block access.
"Their money is not only talking, it's screaming," Gibson said.
He warned the PLAAI will not hesitate to sue landowners that try to challenge the state's constitution on river and land access.
Representatives for Sens. Max Baucus, D-Mont., and Jon Tester, D-Mont., were at the meeting to read letters from the senators expressing their support of open access.
"We need more access, not less access," Tester representative Connie Daniels read from Tester's letter.
Used with permission of the Montana Standard.
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