What the Missoula Mountain Water case means for other Montana property owners

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"Missoula County Courthouse" by Lance Fisher is licensed under CC BY 2.0

The recent decision by the Montana Supreme Court in the Mountain Water case, in which the Court reversed itself from an earlier decision, has set new precedents that weaken the property rights for all Montanans.  It’s apparent to us that the decision was more politically motivated than grounded in the law—and we’re not alone, Justice Jim Rice described the Court’s conduct as “apparently hell-bent on condemnation” in his dissenting opinion.

This is an example of why Montana’s Supreme Court is ranked so poorly nationally.  Each time it reverses itself—and it does so often, hundreds of times in the last two decades—it creates more uncertainty about what the law really is.  And when the Court is viewed as a political animal—active in creating law rather than just interpreting it—Montanans lose faith that they’ll get a fair shake.

Understanding the Seyler Lane stream access decision

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"Hop in for the ride of your life," by Bugeater on Flickr, unaltered

In a recent ruling in an important case involving stream access, District Court Judge Loren Tucker in Madison County determined that issues concerning the balance of private property rights and prescriptive easements must be determined on a case-by-case basis, using evidence of County maintenance needs.  The public’s desire for access is not a factor.

Judge Tucker’s determination was made at the request of the Montana Supreme Court, which concluded that a public right-of-way exists on the Seyler Lane bridge which crosses the Ruby River in Madison County. While the Public Land/Water Access Association (“PLWAA”) have been eager to claim that Judge Tucker’s ruling was a victory for anti-property rights groups, the decision and its consequences are not so clear-cut.

In the dispute between PLWAA and Madison County it was noted that while most county roads have a right-of-way of 60 feet that is established through dedication of a public easement, Seyler Bridge was established through prescription (i.e. continuous public use) not dedication.  PLWAA argued that the public should be granted a 60-foot easement to be used for public access to the river.  Judge Tucker rejected that claim and instead granted a 5-foot easement on either side of the bridge, stating:

 “Madison County and the State of Montana via their agents have traveled upon a strip of ground between the abutments and the high water marks of the river extending an average of approximately 5 feet upstream and downstream from the ends of the bridge abutments. These distances inform the court of that which is reasonably necessary for use, maintenance and enjoyment.”

Gianforte has real Montanan values related to access

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Fly Fishing on the Boulder by Clyde Hurst, Flickr

By Hertha Lund

Often times the first casualty in politics is the truth. Currently, the Democrats are using out-of-state dark money to bastardize the truth relating to Greg Gianforte and stream access issues. In reality, Gianforte’s approach to stream access is the ideal balance between public access and property rights, which is where most Montanans position themselves.

Yes, it is correct that in 2009 Gianforte filed to Quiet Title against the Montana Fish, Wildlife and Parks (“FWP”) due to a factual and legal discrepancy of where the public access should be on Gianforte’s property. This type of suit is a common tool for landowners to use in order to allow the courts to sort out these types of factual and legal issues. Instead of serving the suit, Gianforte’s attorney sent FWP letters and emails. FWP corrected their mistake, moved the access point, provided fencing and worked with Gianforte to allow public access and protection of private property rights.

Instead of being against public access, as the Democrats are alleging in ads, and as proclaimed by Governor Steve Bullock, Gianforte actually worked to provide the public with better access while protecting his property rights. This the real Montanan position.

It is Governor Bullock who is out of touch with Montanans. In 2012, Governor Bullock used his position as Attorney General to bully a rancher in White Sulphur Springs to provide public access over his private property where public access does not exist. This issue is still being litigated. It is Governor Bullock who has sided with out-of-state interests and money to work against rural Montanans who are part of Montanans’ agricultural tradition. Agriculture is still the number one contributor to the economy in Montana.

Enviro groups attempting to destroy Eastern MT ag

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The Yellowstone River

A cadre of  radical environmental groups have set their sites on farmers and ranchers along the Yellowstone River in Eastern Montana in an attempt to eliminate irrigation projects in at least five locations on the river.

The first attack is against the Lower Yellowstone Irrigation Project between Glendive and Sidney where the out-of-state environmental group Defenders of Wildlife has sued the Army Corps of Engineers to remove a 107-year-old diversion wier.  That wier is the starting point for a massive irrigation project that serves nearly 60,000 acres in Montana and North Dakota, and is the backbone for a $10 million sugar industry that supports hundreds of jobs in Sidney.  There are at least four other irrigation projects on the Yellowstone that environmental groups plan to target.

These attacks are nothing more than a shameless abuse of the Courts and federal administrative processes.  And it’s just one more example of the widening War on Ag being waged by environmental groups intent on driving agriculture out of Montana.

If you’re in Billings on June 30 you can do something about it.  The Army Corps is holding an EIS hearing at 5:30 pm at the Lincoln Center.  You can go to submit your public comment, which will be come part of the official record and help guide the Army Corps decision..  If you are unable to attend a meeting, you can send your comments via email to cenwo-planning@usace.army.mil.