A Lawsuit Runs Through It 

Governor’s race divided by debate over stream access

The legal challenge to Montana’s stream access law—a “revered” law, according to a former president of Bitterroot Trout Unlimited—is rooted more in politics than law.

The 16-year-old law, which allows public access to Montana’s rivers and streams, is being challenged by the Mountain States Legal Foundation (MSLF), a law firm based in Denver with ties to Judy Martz’s gubernatorial campaign.

MSLF is an ultra-conservative firm dedicated, according to its own website, “to individual liberty, the right to use and own property, and limited government and free enterprise.”

The law firm filed the lawsuit last May seeking to overturn a particular section of the state’s stream access law. The Montana Department of Justice and the Department of Fish, Wildlife and Parks are both charged with defending the law. Last week, the state Land Board, which consists of Gov. Marc Racicot, Attorney General Joe Mazurek, Secretary of State Mike Cooney, Superintendent of Public Instruction Nancy Keenan and Auditor O’Keefe, voted to direct lawyers from the state Department of Natural Resources and Conservation to help defend the law.

Spokesmen for Martz, the Republican gubernatorial candidate, and her Democratic challenger Mark O’Keefe disagree about the extent of Martz’s involvement with MSLF. But it’s clear in talking to both campaigns that the stream access legal challenge is one very hot issue in this campaign.

According to the O’Keefe campaign, Martz’s contributors include several people on the MSLF’s board of directors, including MSLF board chairman David Rovig, who also is president and CEO of Greystar Resources, a Vancouver, B.C.-based company doing business in Billings. Other contributors include David McClure, treasurer for the MSLF board and president of the Montana Farm Bureau; Thomas Hauptman and John Burke, member and past member, respectively, of the MSLF board; and Rebecca Watson, a member of the MSLF board of litigation and spokesperson for People for Montana, a group of corporations that recently spent at least $350,000 on O’Keefe attack ads.

Martz’s contributors, says O’Keefe press spokesman Bill Lombardi, want to overturn Montana’s stream access law. “These are the people who are challenging our stream access law,” Lombardi says. “Actions speak louder than words here, and the people who are supporting Judy Martz want to overturn the stream access law.”

Martz’s campaign spokesman, Shane Hedges, says he doesn’t know the affiliations of all 5,100 contributors to Martz’s campaign, but it’s an issue that clearly rankles. “The fact of the matter is,” he says when asked whether MSLF supports Martz, “I don’t know that.” He then adds, “There’s zero connection between Mountain States Legal Foundation to our campaign. None. Zero. Zip. Nada.”

Linking the MSLF to Martz is an attempt to harm Martz’s campaign and is being fostered by “radical environmental groups,” Hedges says. “These groups—not the regular environmentalists, [but] the radical groups—are trying to equate political issues” with Martz’s campaign. “No candidate should have to try to [know where] every one of their 5,100 contributors stands on each issue. We unequivocally, unequivocally, unequivocally support the stream access law.”

Hedges’s reply, unequivocal as it sounds, isn’t enough to convince Eric Grove, chairman of the Montana Hunters and Anglers Political Action Committee. His organization has endorsed O’Keefe because Martz’s stance on the stream access law is fuzzy.

The PAC sent questionnaires to both candidates, asking them whether they would defend the law if it faced a legal or legislative challenge. O’Keefe said he would, but there was no reply from Martz. Though Grove says he has tried to elicit a response from Martz, he’s been unsuccessful. “She hasn’t been exactly clear about it,” he says. “We need some clarification and we’re not getting it.”

Hedges says Martz’s proposal is quite clear. Martz supports spending $1.5 million of angler fees to pay landowners to open their land to fishermen who otherwise are limited to public fishing accesses.

“Perhaps that would be the case,” answers Grove. “But this whole thing erupted over her support of private landowners.” Regardless of the merits of Martz’s plan, Grove is still disturbed that Martz won’t commit to defending the stream access law.

Three Montana landowners from Absarokee, Alder and Ennis are challenging the law, and are being represented at no charge by MSLF.

That challenge pertains to non-navigable Class II streams only, according to Jack Lynch, an attorney with Fish, Wildlife and Parks, and does not seek to overturn the entire law which guarantees Montanans access to navigable Class I rivers and streams. If the lawsuit is successful, Lynch says, Montana anglers would be prohibited from walking up Class II streams from public access sites.

The firm reportedly solicited the three clients through a flyer looking for Montana landowners interested in challenging the stream access law. The flyer, according to the O’Keefe campaign, was circulated through southwest Montana and in the pages of the Dillon Tribune. William Perry Pendley, president and chief legal counsel of MSLF, denies that his firm solicited the clients. The Independent, however, has obtained a copy of the flyer.

Marshall Bloom, a former president of the Bitterroot Chapter of Trout Unlimited, finds the Colorado law firm’s involvement in Montana law “worrisome.” And it’s ironic, he says, that a right-wing organization would make an argument against the stream access law—a state law—based on federal law (MSLF claims that the state law violates the due process clause of the U.S. Constitution). Nonetheless, the recent decision by the state Land Board directing more state defense “is a very good thing,” Bloom says. “But there’s something very worrisome about this.”

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