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By Terry L. Anderson and Reed Watson of PERC

When the Montana Constitution was rewritten in 1972, no one would have thought that the clause stating all waters “are the property of the State for the use of its people” would lead to an erosion of private property rights to land. But it has as Montana’s activist Supreme Court has used the clause to favor stream access over private property rights.

With landowners outraged by the ruling, the legislature tried to slow the erosion of property rights in 1985 by passing the “Stream Access Law.” The law limits recreation to activities such as fishing, hunting, swimming and floating and limits access to areas between the high water marks, specifically excluding irrigation ditches. It also limits access across posted private property to gain access. The legislature provided further sideboards regarding access at bridges, saying, “absent definition in an easement or deed to the contrary, the width of a bridge right-of-way is the same width as the right-of-way of the road to which the bridge is attached.” In other words, stay on the bridge unless the government owns the land around it.

Who would have thought that the Montana Supreme Court would do end-runs around the legislature’s intent? Answer: public access groups such as the Bitterroot River Protective Association (BRPA) and the Public Lands Access Association (PLAA). They ignore the distinction between private and public land, and use litigation to take private land without compensation.

Such a taking occurred in 2008 when the BRPA convinced the Montana Supreme Court that a ditch, hand dug by pioneers in the 1860s, was a natural stream and therefore open to public access. Pressure to open access came mainly because landowners along the ditch spent millions of private dollars to create trout habitat. The Supreme Court deemed the ditch a natural waterway, reversing the district court and county conservation district finding of fact that the Mitchell is a ditch.

Click here for the full opinion in the Helena Independent Record.