Photo credit:  David Schott

Excerpt from an opinion by PERC’s Terry Anderson on the upcoming Montana Supreme Court hearing on stream access:

The openness of our legal system is especially important in this case. The plaintiff, now calling itself the Public Lands/Water Access Association, challenges the legality of Madison County’s resolution to permit James Kennedy, a landowner from Georgia, to attach a private wood rail fence to a bridge across the Ruby River.

Beyond the legal technicalities, this case is about the rights of a private landowner to limit access to his property. PLWA portrays itself as David—a local, citizen sportsmen group—against Goliath—a wealthy, out-of-state landowner. In fact, this is a long-standing campaign by the association, dressed up in public-interest clothing, to gain access to waterways across the state even if access means trespassing. Since the stream access judicial and legislative battles began in the 1980s, the question has been whether public access constitutes a taking of private property rights without compensation.

Secure private property rights are the bulwark of equality and justice in the United States. The blindfolded statue of Lady Justice holding her balance symbolizes our rule of law. Ours is not justice for hunters versus bird watchers, poor versus rich, or Montanans versus Georgians; it is justice for all.

Lest you doubt the pernicious effect that taking property has on habitat, consider what happened when the Bitterroot River Protective Association led the battle to access the Mitchell Slough, again pitting local, citizen sportsmen against rich, out-of-state landowners. The privately reclaimed waterway, once a ditch, was managed for both fish and irrigation. Because it became such a good fishery, it attracted the attention of the BRPA, which challenged the rights of landowners to restrict public access.

After the BRPA won its access challenge in the Montana Supreme Court, ditch owners stopped managing for fish and now manage primarily for irrigation. With the headgate shut in winter months, the upper portion has very little water and the lower portion is increasingly silted in. Yes, BRPA “won” the right to access the public’s water by walking on the privately owned beds and banks of the ditch, but the fish habitat that private owners created is disappearing.

Click here for the full opinion in the Billings Gazette.