Stormy waters: Wading through the latest stream access debates

Montana’s Stream Access Law, which ensures public access to public waterways, is rightfully the envy of the nation. It is also, for all Montanans who seek to recreate on our rivers and streams, one of the real treasures of the Treasure State. But once again it is under attack, as it has been since its inception. In a sort of cosmic convergence, stream access is now being debated in the legislature and challenged in the courts. So it’s “once more into the breach,” fellow Montanans, to fight for and protect that which we hold so dear.

For those new to the state, a quick review of Montana’s Stream Access Law—and its many challenges—may prove helpful. Montana’s Constitution states: “All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people...” [Article IX, Sec. 3(3)]. Following a Montana Supreme Court decision in 1984 that held Montanans can use all waters capable of recreation for that purpose regardless of their navigability, the legislature passed the Stream Access Law which guarantees citizens the right to access our rivers for recreation between the normal high-water marks.

The law has been challenged in numerous lawsuits, but in the end, it was upheld by both the Montana Supreme Court and U.S. Supreme Court. As regular readers of the Independent may recall, one of the latest challenges involved the Mitchell Slough, which access proponents and the state’s Department of Fish, Wildlife & Parks (FWP) contend is actually a branch of the Bitterroot River. Opposing them is a group of landowners—including wealthy out-of-staters Charles Schwab, Ken Siebel and rocker Huey Lewis—who claim it’s an irrigation ditch and hence, not subject to the Stream Access Law.

That case went to District Judge Ted Mizner, who ruled that the waterway had undergone such significant physical changes over the years that it could no longer be defined as a natural waterway. Gov. Brian Schweitzer, who has been a tremendous advocate for the right of Montanans to access their waters for recreational use, declared at the time that Mizner’s decision: “opened a can of worms across Montana and we need to get this resolved.” To that end, the case is now pending before the Montana Supreme Court on appeal from the FWP and the Bitterroot River Protective Association.

While the Mitchell Slough decision could take years to decide, another controversy bubbled up on the Ruby River, where yet another wealthy, out-of-state landowner, James Cox Kennedy, made a determined effort to exclude public access to the river at public bridges by using electrified and barbed wire fencing attached to the bridges. The move enraged local access advocates and led to a public protest float that drew hundreds of river recreationists to defy Kennedy’s efforts to privatize the river.

Just last week, Kennedy filed suit against both Madison County and the Public Lands Access Association, Inc., the group of sportsman and access advocates who sponsored the protest float. Kennedy claims there is no legal access from the bridges and that the county is ignoring damages to his lands and property from river users who get to the Ruby from those bridges, thus constituting a “takings.”

While Kennedy’s suit works its way through the court system, the legislature is considering SB 78, a bill that would codify an attorney general’s opinion that says citizens have the right to access rivers from public bridges since they are using the publicly-owned right-of-way. Despite determined opposition from the Montana Stockgrowers Association and other landowners, the measure cleared the Senate and is now up for hearing before the House Fish, Wildlife & Parks committee.

Under the provisions of SB 78, landowners would be allowed to legally attach fences to public bridges on public rights-of-way as long as they provide a safe way to access the waters. The FWP, which has pledged tens of thousands of anglers’ license dollars to help build the safe passageways through the fences, has determined there are at least 131 such sites across the state where uncooperative landowners are fencing out the public from publicly-owned lands and waters.

If all this wasn’t enough, last week the national offices of Trout Unlimited (TU) announced the organization would no longer be involved in stream access issues, claiming their interest was primarily in habitat. That decision caused Montana Trout Unlimited members to revolt en masse. In the strongest of statements, the group’s Montana leaders and members declared that access was at the heart of the issue since without it, fewer people would be able to enjoy rivers, learn what makes them healthy and advocate for habitat preservation and restoration. Their efforts were successful and this week the national TU office rescinded its decision, saying it will appoint a task force to study the issue over the summer.

Montana’s floating and fishing season is upon us while our right to access our own waters from public land is besieged from all sides. So what can citizens do? Contacting your legislators to support the Bridge Access Bill would be a good first move. If you want to get together with other stream access advocates, there will be a joint Public Lands Access Association and Montana Trout Unlimited event held at Butte’s Copper King Inn on March 31 beginning at 1 p.m. Both Gov. Schweitzer and Attorney General Mike McGrath are scheduled to speak and, given the strong support for stream access by both, they should stoke the fires to preserve and enhance the long and proud Montana tradition of public access to public waters.

All too often we take our many blessings in Montana for granted. Given the power and money now concentrated in the wars against our Stream Access Law, Montanans must stand up, speak up and fight for our rights—or they may simply float away downstream.

Helena’s George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.
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