The Access Issue

By Beacon Staff

There’s a lot to like about living in Montana. Easy access to trout streams is high on my list.

If you spend any time talking to folks from other states in the region — Colorado and Wyoming come readily to mind — you’ll soon realize how good we’ve got it. In Montana, once we reach a river legally, whether it be via roadway, developed access site or the permission of a private landowner, we are free to travel up and down that waterway as long as we stay within the high-water marks.

Elsewhere in the Rocky Mountain region you can be nailed for a trespass violation for the act of stepping out of your raft to net a fish, or merely dropping anchor. Recreational floating and fishing is largely relegated to rivers flowing through national forests or other public lands in those states.

Think about that for a second. If Montanans hadn’t had the foresight to develop laws that protect our rights to access these waterways, much of the Flathead River, for instance, would be difficult to float. And forget about taking a dip on a hot summer day. Have you ever tried skinny dipping in the river without touching bottom? I haven’t either, but I’m guessing it would be difficult.

We’ve gotten so used to the good life here that I sometimes fear we’ve grown complacent. Folks tend to think that Montana’s 1985 Stream Access Law settled the matter and that we can take for granted that the access we all enjoy today will be there for future generations.

Unfortunately, that’s not the way everyone sees it. Montana’s citizen-friendly approach continues to be a target for anti-access forces. We learned last month that a district court judge has ruled against access at a bridge crossing on the Ruby River in Madison County. This dispute has been simmering for years, with landowners arguing that the right-of-way for roads narrows from a full 60-foot easement to just the width of the bridge where it crosses a river. In other words, there’s no public access at the bridge. A 2008 ruling protected access at two other bridges on the Ruby, but the same judge recently ruled against access at a third. The Public Land/Water Access Association, a Montana hunter/angler advocacy organization, plans to appeal.

I wish the Ruby River was the only pissing match in the state that threatens stream access. But there are others.

In the Ravalli County, wealthy landowners blocked access to a side channel of the Bitterroot River, known as Mitchell Slough. As in the case of the Ruby, they even convinced a district court judge to side with them. Along the way they obfuscated the issue enough to tie an often-compliant media in knots. More than one western Montana newspaper bent over backwards to portray the landowners as some sort of aggrieved victims set upon by crazed access extremists.

In fact the landowners orchestrated the most significant challenge to the Stream Access Law in its history, effectively convincing a judge to establish a blueprint for how future landowners could erect “No Trespassing” signs on rivers running through their trophy spreads.

Fortunately the Montana Supreme Court is stocked with smarter people than Montana’s newspapers, and in an unanimous decision tossed the lower court ruling, calling it absurd. Still, for more than 15 years the “No Trespassing” signs stood, and if not for the efforts of a rag-tag band of locals, they might be standing still.

What’s interesting about the Ruby and Bitterroot access fights is that they are both sort of oblique challenges to Stream Access. Even the most ardent property-rights types understand that going after the Stream Access Law head on is a fool’s errand. Instead, they attack from the periphery, hoping to chip away at the law until it’s practical impact is destroyed.

We’ve got our own “Slough” problem here in the Flathead as the fight for public access at Church Slough remains unresolved. Hopefully, we won’t end up losing access there the way we did for a long time on Mitchell Slough.

This is clear: If we take our citizen-friendly access laws for granted today, they might not be there tomorrow.

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