There was a big win for stream access advocates in Utah last week. A state court judge ruled the cynically titled “Public Waters Access Act,” a law that effectively blocked public access to 2,700 miles of rivers and streams, violated that state’s constitution.
It’s a Utah decision so for Montanans it may have limited direct impact. Montanans generally don’t travel to Utah for trout, though I’m told there’s some pretty decent fishing there. For me, Utah is mostly drive-through country.
Still, this serves as a reminder that public access is under assault across the West. Montana’s Stream Access Law, the gold standard against which all other state access laws are measured, remains a target for anti-access groups across the country. Things are still tied up on the Ruby River in the southwestern part of the state, despite the Montana Supreme Court’s decision on access there.
The Utah case centers on a blue-ribbon trout stream, the Provo River, and access on the stretch where the Victory Ranch, a high-end development, is planned. After the Utah Supreme Court ruled that the public has the right to touch the beds of rivers that flow across private lands, the state passed the “Access Act” in 2010. The law allowed only incidental contact with the stream bottom, making wade fishing impossible, and floating difficult.
Victory Ranch was selling its development with claims it offered residents exclusive access to a four-mile stretch of the Provo. “Exclusive access” has become the mantra developers and outfitters use to sell homes or hunts in the Northern Rockies. Unfortunately, that marketing pitch sets up a conflict — what has become the conflict in the rural West — over who gets to hunt and fish, and where.
Derek P. Pullan, the judge in the Utah case, is an appointee of former Gov. Mike Leavitt, a Republican who went on to serve in the EPA and as Secretary of Health and Human Services during the Bush administration. In addition to Pullan’s judgeship, he also works as an adjunct professor at Brigham Young University where he teaches the law of evidence.
The judicial appointees of conservative Republican governors are often the most forceful advocates for constitutionally guaranteed public access rights. Such was the case in Montana when Supreme Court Judge Jim Rice wrote the unanimous opinion affirming the public’s right to access a branch of the Bitterroot River known as Mitchell Slough. Rice was formerly a Republican legislator and Montana House majority whip. He was appointed to the Supreme Court by former Republican Gov. Judy Martz.
Montana’s Stream Access Law prevents those who would prefer to block, or in some cases sell, access. It’s the mentality of the private toll road superimposed over the right of way the public owns on rivers and streams.
I may never need to access the Provo, but I will fish the Bitterroot and the Missouri and Yellowstone, among other Montana rivers, and soon I hope. A law such as the one in Utah might put a stop to that. Fortunately, Montana’s divided government and active hunting and fishing communities have kept the pressure on in Helena and have stopped cold efforts to rewrite access laws or sell off public lands.
I say divided government, but to a certain degree that means elected Democrats. Despite the example of conservative judges recognizing the public’s access rights, Republican legislators often — though not exclusively — lead the charge opposing public access or for the selling of state lands. That was certainly the case earlier this year when public land advocates crowded the capitol in Helena challenging efforts led by Republican to transfer federal lands to the state, a process that would inevitably lead to those lands being sold into private ownership.
This fight, unfortunately, is not going away anytime soon.