By now you’ve probably heard, the most recent attack on Montana’s Stream Access Law has been tossed out by the state Supreme Court. It’s still safe to plan on fishing your favorite river this summer.
This time the battle was down on the Ruby River in southwest Montana. The basic contours of the fight have become cliché: a wealthy out-of-state landowner buys a piece of Montana along one of the state’s magnificent rivers and decides they don’t like all the riffraff (that’s you and me) floating downstream. Up go the “No Trespassing” signs and off to the courtroom we go.
In this case, the landowner decided that the right-of-ways along the roads that cross the Ruby, and where the riffraff accessed the stream, weren’t really right-of-ways at all. Instead, they were sort of “suggestions” that the landowner got to modify as he saw fit. In this case the modifications were that once the public road easement reached the river, it narrowed from 60 feet to the width of the pavement. Electric fences were installed to block access at the crossings.
Unless you were willing to jump from the bridge to reach the water, you were trespassing, at least as far as the anti-access brigade saw things.
There’s a word for what happened on the Ruby, and the earlier anti-access battle on Mitchell Slough down in the Bitterroot, and that word is “takings.” Any Montanan who has attended a public meeting in the last few decades is familiar with the phrase. The “takings” charge is usually pinned on folks working for the government who are suggesting some new legislation or regulations that others consider an infringement on property rights.
But on the Ruby and Bitterroot it was individuals doing the taking, and what they were taking was the constitutional right Montanans have to float and wade the navigable waterways of the state between the high water marks. That public right was denied for more than a decade on the Bitterroot, and nearly as long down on the Ruby. If not for the efforts of citizens groups who fought long, costly legal battles, the “No Trespassing” signs might still be up.
The anti-access zealots view Montana’s Stream Access Law the way the good elves and hobbits of Middle Earth regard Sauron. For these types, folks floating or fishing a river is a manifestation of all that is evil in the world. Check the website of a group called the “United Property Owners of Montana,” which has characterized defeat on the Ruby as an opportunity to get the Stream Access Law to the U.S. Supreme Court on appeal. There they envision this abomination will be overturned forever.
I split my time between Montana and Wyoming these days, so I have some idea what the Treasure State would look like if the anti-access forces get their wish. Say you want to float the Flathead River from Teakettle to Pressentine. Well, you still could if Wyoming law was applied to Montana, but you wouldn’t be able to stop on the bank for shore lunch. And neither would you be able to drop anchor, or hop out of the boat to wade fish a run.
Things would be much worse for folks who can’t afford a raft or boat. They would be limited to wading no farther than the boundaries of the access site.
The anti-access forces see a future where it will be difficult, if not impossible, for average folk to fish the Flathead River and say, “Let’s make that happen. That’s the future we want for Montana.”
The fights on Mitchell Slough and the Ruby River were always about more than just access to those, in some ways, inconsequential streams. The fight was about protecting an ideal, an ideal enshrined in the constitution of Montana that rivers are resources — similar to fish and wildlife — owned by no one and managed for the public (the owners, in a sense) by the state.
It’s called the Public Trust Doctrine, and it is under constant assault. For there are some who will never abide the riffraff having too much freedom.
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