Montana's stream access law stays strong
- by Chad Harder/Missoula Independent
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Stream access laws on private lands in the West
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Water is definitely for fighting in Montana
Wealthy landowners and locals wade into the ditch
NEWS - From the July 25, 2011 issue
By Matthew Frank
In late May, as melting La Niña-fed snowpack shoved western Montana's rivers over their banks, the state began closing fishing access sites, including several on the bloated Bitterroot River. Thus, floodwaters accomplished what some state lawmakers, earlier in the year, could not: Removing anglers from the Bitterroot and other streams.
The Republican-dominated state Legislature was extremely ambitious, with bills that strangled social programs and undermined bedrock environmental laws, but in the end it balked at weakening Montana's Stream Access Law, the most permissive such law in the West.
Despite being attacked in court and by conservative lawmakers for decades, Montana's 1985 law remains the West's high-water mark, the envy of recreationists in states like Utah and Colorado, where more restrictive stream-access laws rule the waves. Meanwhile, some irate landowners believe Montana's generous public access infringes on private-property rights.
Montana's law was passed in response to a 1984 state Supreme Court ruling that granted public access to all surface waters "capable of recreational use," regardless of who owns the streambed, because surface waters are state property, held in public trust. The stream-access law narrowed that ruling, allowing recreational access to all "natural water bodies" but exempting private irrigation ditches. The law was challenged in 1987, and the court confirmed its intent.
The law's language left legal openings, though, such as what constitutes a "private irrigation ditch." The Mitchell Slough, a historic fork of the Bitterroot River, served as the muddy nexus of that debate for years. Landowners there, including billionaire banker Charles Schwab and '80s pop star Huey Lewis, believed the slough, which crossed their property and had been extensively altered, was essentially a private ditch. A district court agreed. But the Montana Supreme Court, in 2008, unanimously ruled in favor of public access to the 16-mile-long Mitchell Slough.
This year, Rep. Jeffrey Welborn, a Republican from Dillon, tried another tack to curb the Stream Access Law: clarifying its prohibition on recreational access to ditches. The bill sought to broaden the definition of a private ditch to include many public waterways. It would have prevented anglers and floaters from using all waterways where the return flows from irrigation make up the majority of the flow, as well as side-channels of braided rivers and streams where irrigation controls are located at the head of the braid.
But the bill went too far, say critics, not only reversing the Mitchell Slough decision, but also seriously restricting Montanans' stream-access rights. Under it, even the Bitterroot River would be defined as a ditch, according to Bob Lane, chief legal counsel for Montana Fish, Wildlife and Parks, because of the amount of water diverted from it during irrigation season.
"In fact, almost all rivers and streams in Montana, except those in wilderness areas and the headwaters of streams on Forest Service land, could no longer be used by the public," Lane says. "(The bill) not only doesn't work, it just doesn't make any sense."
Former Montana U.S. Attorney Bill Mercer, hired to help draft the bill, says it simply aimed to restore the original purpose of the 1985 Stream Access Law, which was, he says, to preclude recreational use of water after it leaves the main body for irrigation.
A March committee hearing aroused the masses: About 350 anglers and floaters filled the Capitol to complain. "We have a lot of people with an extreme amount of money who have bought lands on and near these rivers, and some of these people are interested in having their own little private world out there where nothing but their rich friends can fish," testified John Rich of Divide. "I'm worried about the implications of this bill. It might make it easier for them to prevent people like myself from enjoying our waters." The bill won approval in the House, but died in the Senate Agriculture, Livestock and Irrigation Committee.
The bill was backed by deep pockets in the Bitterroot, opponents say, but singer Huey Lewis says they weren't his. Still, he laments that the Mitchell Slough is now public. He and his neighbors tried to restore it into a healthy fishery, he says: They narrowed the channel, dredged out silt, added streamside vegetation, and worked with irrigators to increase stream flow. But when the state Supreme Court said it was a natural and publicly accessible stream, their incentive to continue restoration efforts slipped downstream.
"It ruined the Mitchell," Lewis says. "The idea of that becoming a good fishery is over. It was becoming a spawning area -- kind of a nursery -- for the Bitterroot River, that's gone. ... It's going to become the mud ditch it was when we first found it."
That's because ownership encourages stewardship, says Reed Watson, of the Bozeman-based free-market think tank Property and Environment Research Center, or PERC. We tend to take better care of our own cars than we might of rentals, he adds, because we bear the consequences of our good -- or bad -- treatment.
"There are some positive things that can happen for restoration or the quality of streams from the environmental perspective that I think might go away if every single waterway is open to public access, including irrigation ditches," Watson says. He notes that landowners in Utah also halted stream restoration work when the state Supreme Court, in 2008, ruled in favor of public access.
In other Western states, stream-access laws vary widely, from Montana's wide-open model to Colorado's, which warns that anglers and floaters risk trespassing if they touch privately owned streambeds and banks. PERC calls Nevada, Alaska and Wyoming "battleground states" because of ambiguities in laws and court opinions. Idaho's and Oregon's laws are nearly as liberal as Montana's.
Utah remains in stream-access flux. In 2008, the Utah Supreme Court ruled that, as in Montana, the public could legally touch all streambeds regardless of streambed ownership. That victory was short-lived: In 2010, the Utah Legislature essentially reversed the court's decision, passing House Bill 141 to restrict access to streambeds on private lands unless recreationists have a landowner's permission. Frank Hugelmeyer of the Outdoor Industry Association predicted that the law, called the Public Waters Access Act, would be "devastating" to the fishing industry, roughly a tenth of Utah's $5.8 billion outdoor recreation economy.
Steve Schmidt, owner of Western Rivers Flyfisher in Salt Lake City, says he felt the effects of the bill's impact within a month of its passage. The law has discouraged out-of-state clients from booking trips, he says, and locals are buying fewer fishing licenses. Between poor weather and the new law, he estimates his guiding business is down 30 percent this year. "This is a motivation for people not to fish in Utah," he says.
Schmidt hopes legal action will change that. Last November, the pro-recreation Utah Stream Access Coalition challenged the constitutionality of the Public Waters Access Act, arguing that it violates the state's obligation to hold Utah's waters in trust for the public. That case has yet to be heard. Meanwhile, the coalition filed another suit in May, seeking to have the Weber, a blue-ribbon trout stream, designated as navigable. In Utah, the beds of navigable rivers are public property, and a river is deemed navigable if it's ever been used for commerce.
"If we win the first lawsuit, we'll have a Montana-like law again," says Utah Stream Access Coalition President David Serdar. But there's probably a workable compromise that wouldn't be quite as permissive, he says: "In the long term, we would like to see no less than Idaho's (law)." In Idaho, a river is navigable -- and therefore publicly accessible -- as long as you can float a six-inch-diameter log down it.
The debate has risen to the surface in Colorado, too, though a controversial legislative effort in 2010 to clarify the rights of rafters ultimately failed after landowners voiced opposition. John Cantamessa, chairman of the Colorado River Outfitters Association, says recreationists are currently stuck with the status quo -- a law more protective of private-property rights than any other river-access law in the West. That law is good enough for rafting access, though, he says, and his organization sees no need to change it.
That is, "Until the next guy gets locked out (from floating the river)," says Brenda Worley, co-owner of Yampa-based Colorado River Guides. She sympathizes with riverfront landowners, but says everyone should have access to rivers. "I don't think it's over with in the state of Colorado by any stretch of the imagination," she says.
Nor will the debate likely ever end in Montana.
"There's a reason why we have the best trout fishing in the United States and the best access law," says Bruce Farling, director of Montana Trout Unlimited. "It isn't coincidental: When people have access to rivers for fishing, they are motivated to protect and restore them."
