Writers on the Range: River access in the West worth fighting for
June 28, 2013
For people who think heaven must be a lot like fishing and floating Montana's beautiful rivers, access to them is once again at the top of our agenda. For many of us, it's always been our first concern. Montana has probably the best and most egalitarian access laws in the country — at least when it comes to rivers: We can travel them unimpeded within the high-water marks on either side.
But because some folks with almost unlimited amounts of money will go as far as possible to protect their privacy and block public access, it looks like we'll have to keep fighting to retain our river rights.
When I moved to Montana 21 years ago, the locals spoke of the state's Stream Access Law in the kind of reverential tones usually reserved for secret fishing holes. Everyone had the mind-set back then that stream access was a settled matter.
"We have it, and we'll enjoy it until we're too old to wade between the high-water marks," was the attitude.
Montanans cherish the law as something that makes living here far better than living in states such as Wyoming, where a dude can be cited for trespass for dropping an anchor in the wrong place. Most Wyomingites readily concede that when it comes to stream access, Montana has it all over the Equality State. And generally speaking, Wyomingites will more readily join the Grizzly Bear Artificial-Insemination Team than admit that Montana's better at anything.
There have been a few bumps on the road to stream-access nirvana since the halcyon days before "A River Runs Through It." One of them was the 15-year battle for access on a branch of the Bitterroot River called Mitchell Slough. There, a group of wealthy landowners essentially argued that they'd done plenty of work fixing up their spreads after they bought them from the native Bitterrooters who'd trashed the joint, so they should be exempt from the Stream Access Law. They then proceeded to hang "No Trespassing" signs on the river and defied anyone to make them take them down.
Some Montanans were slow to realize that the Mitchell Slough landowners were trying to do in the courts what could be impossible at the polls: overturn the access law.
For years, the fight was carried on by a ragtag band of radical Bitterrooters — radical because they were fighting for the notion that the law applies to everyone, including landowners with ridiculous amounts of disposable income to pay attorneys. It took some time, but most of the bigwigs in Montana trout circles eventually grasped how serious that fight was. Finally, when the Montana Supreme Court became involved in the Mitchell Slough case, it overturned a lower court ruling with a unanimous opinion that made clear that if the landowners had gotten their way, the state's Stream Access Law could eventually be dismantled.
But even though people didn't realize it then, it is clear now that Mitchell Slough was just an early skirmish. In late April, the Montana Supreme Court took testimony on the appeal of another lower court ruling designed to deprive Montana anglers of their access rights. The case comes from the Ruby River, where another man with deep pockets — media mogul James Cox Kennedy — found a judge willing to go along with his move to curtail river access. The lower court judge had agreed that a 60-foot road easement narrows to the width of a bridge whenever the road crosses a river upstream from a wealthy landowner's trophy ranch — thus keeping the riffraff out.
Kennedy's interests extend beyond the easement dispute, as his attorney made clear at the court hearing on the campus of Montana State University. The state, Kennedy's attorney argued, had been wrong all along in allowing any access on the Ruby. That's an argument unlikely to gain much purchase with the Montana Supreme Court, but its intended audience is more likely the Roberts' U.S. Supreme Court and its increasing obedience to the desires of the wealthy.
Meanwhile, the Montana-based Public Land/Water Access Association has taken up the fight, and we can only hope it will prevail. In the meantime, we need to understand that Montana's Stream Access Law, which seemed a settled matter just a few decades ago has become the cause célèbre for several radical property-rights groups. They won't be satisfied until they've gutted the law and replaced it with a feudal system, where the only folks able to float Montana rivers will be guides who have paid dearly for the privilege. Then, local people will also be forced to pay to do what generations of Montanans have always done: float rivers and catch trout.
We've got our work cut out to keep that from happening.
Rob Breeding is a contributor to Writers on the Range, a service of High Country News (hcn.org). He teaches journalism at Northwest College in Powell, Wyo.
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