Out of Bounds

Is Access Still Montana’s Third Rail?

I hope I’m wrong, but I worry that Montana pride about access might have diminished

By Rob Breeding

Is public access still an untouchable issue in Montana politics? Is it still the Treasure State’s third rail? I long thought so, but in the next few years we may learn otherwise.

The third rail is a metaphor for a political issue that kills all who touch it. It derives from the high-voltage third rail in some electric train systems. Touch the rail and you’re electrocuted.

The phrase was coined by a staffer of former House Speaker Tip O’Neill, who used it to describe Social Security, suggesting the politician who messes with the retirement program can expect death, of their political career at least.

I knew nothing of Montana’s Stream Access Law before I moved to the Bitterroot Valley 31 years ago, but I was soon indoctrinated. Montanans seemed legitimately proud of the law and  state constitution — a working-person’s blue-collar manifesto if I’ve ever read one — as well as the freedom they afforded river users. That pride was quite broad, reaching across political boundaries that have become more deeply entrenched in subsequent decades.

While we wait to see how the U.S. District Court of Appeals will rule in the Wyoming corner-crossing case, United Property Owners of Montana, one of the state’s most notorious opponents of public access and public property rights, recently weighed in with an amicus brief. Not surprisingly, they’re against Americans briefly moving through the air space above a corner pin so they can use property they own. 

They also told us they’re stepping up for beleaguered law enforcement officials who have more serious criminal matters to address, as well as landowners who will face negative publicity if they try to keep Americans from using their land. 

Law enforcement officials everywhere feel a deep sense of gratitude, I’m sure.

The brief tells us property owners have a right to the air space immediately above their property, meaning the brief moment a ladder-climbing hunter’s derrière was suspended over a few square inches of Elk Mountain Ranch owner Fred Eshelman’s property in Wyoming was a trespass.

How far up should this protected airspace extend? Will United Property Owners go after United Airlines next?

Also, drone-type vehicles large enough to carry humans are on the horizon. The company that builds the Jetson ONE passenger drone is taking deposits for its aircraft that will sell for about $100,000 in 2024. At that price I don’t expect it to become standard equipment for elk hunters, but if the Wyoming corner crossers had used a vehicle like the Jetson One to traverse that remote corner pin, would this case have even made it to charges?

Jetson ONE will be a highly impractical aircraft for an elk hunt, but I suspect a revolution in personal aircraft technology may soon render the corner-crossing controversy moot.

What’s most disturbing about the United Property Owners brief is how it casts the issue in absolutist terms, making compromise impossible. The group is arguing that if even the shadow of a hunter’s buttocks briefly fills airspace measured in inches, this case must be contested to the highest court in the land. 

Sorry, but the sanctity of private property rights isn’t that fragile.

Reasonable people can see both parties in the Wyoming case have legitimate interests. Eshelman’s private property rights and every other American’s public property rights. The only harm in a compromise is Eshelman loses exclusive access to property owned by all of us. Maybe he shouldn’t have tried to claim it in the first place.

I hope I’m wrong, but I worry that Montana pride about access might have diminished. A lot has changed in the state since I wandered up from California in 1992 and not every newcomer took in the lay of the place and decided to leave it as it was.

One final political metaphor: when it comes to public access Montana is a bellwether. Montanans must choose wisely.