Out of Bounds

Stream Access, if You Can Keep It

The Stream Access Law was approved in 1985, after a pair of 1984 rulings by the Montana Supreme Court affirmed the public’s right to access navigable rivers and streams

By Rob Breeding

At the conclusion of the Constitutional Convention of 1787, a woman inquired as to how the government of our new nation would be organized. Benjamin Franklin, that notorious foul-weather kite flier and Founding Father, replied, “A republic, if you can keep it.”

That phrase has since been woven into the fabric of our national Sunday best. It’s a statement of purpose and civic duty. The Founders gave us a government based not on the divine right of kings, but instead a divinely inspired constitution, with responsibility for its success placed in the hands of the people.

Franklin’s prescient, national fabric-weaving insight was bouncing around my brain the other day as I sat down with a copy of Michael Howell’s new book, “Saving the Mitchell: The struggle to save Montana’s rivers and streams from privatization.”

Howell is a former owner and publisher of the “Bitterroot Star,” a weekly newspaper in Stevensville. He is also a founding member of the Bitterroot River Protection Association, the group that led the fight to keep Mitchell Slough, a branch of the Bitterroot River, open to the public under Montana’s Stream Access Law.

Howell is also an old friend and my former boss when I worked for two years as a reporter and editor at the “Star.” This was one of the most consequential and rewarding periods of my journalism career and I don’t presume to be a neutral arbiter in this battle. 

I’m a partisan fanboy when it comes to stream access and its defenders. 

Much like Franklin’s gang of nation builders, the authors of Montana’s Constitution — drafted during the state’s 1972 constitutional convention, then approved by voters — laid out some important rights, none more important in the fight for access at Mitchell Slough than the public’s right to use the waters of Montana, water that is owned by all Montanans.

The Stream Access Law was approved in 1985, after a pair of 1984 rulings by the Montana Supreme Court affirmed the public’s right to access navigable rivers and streams. The law has been under assault ever since, and Mitchell Slough showed defending them wouldn’t be easy. 

Howell lays out the struggle, interspersing his contemporary reflections with news stories he and other journalists wrote as the fight proceeded from the day in 1991 when a pair of anglers — the Rose Brothers from Victor — showed up at the newspaper office and invited Howell to watch them go fishing on Mitchell Slough. 

The Rose brothers were arrested that day for trespass on property owned by Huey Lewis of 1980s pop music fame. A jury found the brothers not guilty.

While the story should have ended there, Lewis, and the other wealthy property owners along Mitchell Slough were about to demonstrate a new, advanced version of an old political tactic: throw money and a relentless stream of nonsense at the public process, confident you will eventually wear your opposition into submission.

You’ll have to read Howell’s book if you want the 17-year play-by-play. We know from our vantage point in 2022 that the Montana Supreme Court, in a unanimous 2008 decision, shredded the land owners’ claims, as well as an earlier District Court ruling in their favor, calling that judge’s decision an “absurdity.” If it stood it could have ended stream access rights across the state.

Still, as I read Howell’s book, I couldn’t shake the feeling none of this was over. 

The influx of wealthy newcomers has only accelerated in recent years, and these folks often arrive with a different perspective on stream access than the one that has served Montana so well for more than three decades. 

Add to that a governor and lieutenant governor with public records of hostility toward stream access rights and it’s easy to see how keeping them will be a perpetual duty.