Another SCOTUS win for property rights

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Mud puddles like this will fall under EPA jurisdiction due to the WOTUS rule. Photo Ccredit: peasap on Flickr

Since it’s implementation the Clean Water Act has developed a reputation as being ambiguous and arbitrarily implemented, and has plagued property owners and agriculture producers across the U.S.  The EPA is now attempting to expand the scope of that Act through the controversial Waters of the United States (WOTUS) rule, which would place all bodies of waters—including puddles and stock ponds—under federal regulatory jurisdiction.

But a recent U.S. Supreme Court decision has added a degree of clarity to the Clean Water Act, and more importantly an opinion by Justice Kennedy in the case signals good news on a multi-state challenge to the WOTUS rule.

One June 1st, the Supreme Court ruled unanimously to allow landowners the ability to challenge in Court the EPA’s Clean Water Act “jurisdictional determinations,” which are used by landowners to determine if their project falls under Clean Water Act jurisdiction before going through costly permitting.  The government contended that jurisdictional determinations did not constitute final agency action, and therefore landowners should not be able to sue for relief in Court.  The Court unanimously ruled against the EPA in the case, enabled landowners like Andy Johnson to successfully challenge the EPA.

Fergus County asks to be left out of Upper Missouri River Heritage Area designation

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Opposition is growing to a proposal to designate a huge area of land as the Upper Missouri River Heritage Area.  Recently, the Fergus County Commission unanimously voted to be left out of the proposal being pushed by Cascade County Commissioner Jane Weber.

National Heritage Areas are designations connected to the National Parks Service.  Though administered locally, and not by the NPS, Heritage Area designations can have implications on private property rights for landowners in and near the Area designation.  Examples from other Heritage Areas around the country show that local governments are often pressured to change land use policies after a Heritage Area has been designated.  Additionally, the Heritage Board, the new layer of government set up to administer the Heritage Area, has the authority (and funding provided by the federal government) to make land purchases, which eliminate those properties from the tax rolls.


The Fergus County Commission discussed the Upper Missouri River Heritage Area at their April 22 meeting.  “It’s alarming to me that someone draws a circle around Fergus County and no one here is consulted or asked to give input,” said Commissioner Ross Butcher.

“We already have a Monument boundary and the Wild and Scenic River designation.  Why do we need another designation on top of what’s already there?” added Commissioner Carl Seilstad.

The proposed Area boundaries include land in Fergus, Chouteau, Cascade, and Lewis & Clark counties, most of it private property.

Elections Matter, Ep. 1 – Legislative attempts to seize your property

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Photo credit: Kelly Minars

Elections Matter is a series of articles about issues from the 2015 Montana Legislature that were decided by only a few votes.  The objective of the Elections Matter series is to underscore why it’s so vitally important to elect officeholders who support our rights to own, use, and enjoy our property.

Should landowners in Montana have to apply for permission from their county governments before placing a new gate on their property?  Of course not, such a scenario seems nonsensical.  But that’s exactly what would have resulted had legislation by a pair of Great Falls lawmakers been enacted last year.

House Bill 286, sponsored by Rep. Tom Jacobson (D), would have required a landowner to file a notice of intent with the county commission for any planned “fence, barrier, or sign” to be installed on a road on his property.  From there, the law would have required the landowner to appear before the commission in a public hearing to justify the planned addition and provide evidence to prove ownership of the road in question.  And the kicker, any road on your property would be assumed to be a public road unless you convince the commissioners otherwise.

In other words, the commission would be given the power to deny you the right to put up a gate anywhere on your property.  Members of the general public would be given the power to weigh in on whether you should be allowed to do so.  And your property would be considered open for public access unless you can convince the commission otherwise.

It seems like a completely ridiculous idea, but believe it or not this bill died on tie vote in Committee.

What’s worse, a companion bill, HB 304, sponsored by Rep. Mitch Tropilla (D), would have imposed a $500 per day fine on a landowner who keeps a gate closed without getting the commission’s permission.

BLM’s refusal to work with Wilks bros. is part of a disappointing trend

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Photo Credit: Lance Fisher

Last year, the Wilks brothers opened access across their property to allow the public access to the Upper Missouri River Breaks Monument.  It was a good-faith effort as part of a land exchange they were proposing to the BLM.  Their proposal was a generous one—they were offering more acreage to the BLM, and property that had better public access (the public land they proposed to exchange for is only accessible by aircraft).

BLM has refused to negotiate this land exchange amid opposition from environmental groups.  So in response, in an oped appearing today in the Great Falls Tribune, Farris Wilks has announced they will no longer allow access through their property to the Upper Missouri River Breaks.  Mr. Wilks writes:

While we will close our gates in the coming days, we continue to stand ready to engage with the BLM and the interested public to craft an agreeable exchange that will provide permanent public access to the Upper Missouri River Breaks National Monument in the future.

It’s a disappointing trend that while Montana sportsmen are clamoring for increased access to public land, and landowners are making offers to increase access, the BLM is refusing to even consider the proposal.