In the debate over stream access we often hear about the “public trust” doctrine as justification for impeding on private property rights. Our friends at PERC offer an explanation of how this judicial precedent took on a new life in Montana…and the consequences that it’s had. Here’s an excerpt:
The idea that the public has rights to access resources such as water and wildlife—even if those resources are found on private property—found its way into Montana law through the public trust doctrine. Legal scholars and judges have expanded this historical doctrine beyond its constitutional limits to mean that landowners cannot deny access to resources owned by the public. This expansion infringes on private property rights by taking away the owner’s ability to restrict access and reduces the incentive for water and wildlife stewardship by private landowners.