Sen. Debby Barrett on MT Stream Access

The Montana Supreme Court recent ruling on an important stream access case represents an alarming expansion of access law at the detriment of property rights. But despite headlines announcing a win for stream access, the court all but ignored the 1,000 pound gorilla in the case — whether Montana’s stream access law is Constitutional. Ultimately, if the appellants are successful in appealing to the U.S. Supreme Court, the case may yet prove to restore the property rights that were taken from Montana landowners 30 years ago.

The case originated when activist group Public Land/Water Association challenged the legality of Madison County allowing a private landowner to attach a wood-rail fence to a bridge across the Ruby River, thereby preventing trespass across the property to access the river. In this case, the county had no right-of-way beyond the width of the roadway. In other words, stepping off the roadway meant stepping onto private property, thereby trespassing.

But in a stunning obliteration of more than 100 years of established Montana road law, the Montana Supreme Court has greatly expanded the confiscatory power of government relating to prescriptive easements. Heretofore, prescriptive easements were confined to the adverse use and to the specific land area that was used adversely, with the government having just an incidental right to leave the easement only as necessary to repair or maintain it.

The new precedent set by the court is that the public can go outside the original bounds of the easement and into the support area for any reason. That will surely invite all sorts of headaches for landowners who are unfortunate enough to have prescriptive easements cross their property.

To get to that interpretation, the court had to import legal theory from other states and directly contradict the bipartisan bridge-access law passed during the 2009 Montana legislative session.

The bottom line is this is a major expansion of the government’s power to take private property for public use, with zero compensation being paid for that use.

Significant as that new precedent may be, it’s overshadowed by the other potential implication of this ruling. The defendants in the case had requested the court reexamine Montana’s stream access law based on a new ruling by the U.S. Supreme Court in PPL vs. Montana. That request was brushed aside by the Montana Supreme Court and is now ripe for appeal to the U.S. Supreme Court.

In the PPL case, the U.S. Supreme Court unanimously ruled that Montana’s interpretation of streambed ownership was completely flawed.

Prior to PPL, the state of Montana claimed that it owned most of the streambeds in the state. This idea was the foundation on which Montana’s stream access law was built — the reasoning being that the public had a right to use the property that the state owned. The PPL case blew that idea out of the water, as it were, and provided much more restrictive criteria for which stretches of stream bed the state actually owns.

The defendants in the Madison County case have asked the basic question, if the state doesn’t own this streambed, does the public have a right to trespass upon it? If the answer is no, then Montana will have to significantly revamp its stream access law in order to protect the rights of the property owners.

The Montana Supreme Court has had a run of bad luck in their decisions being challenged at the federal level lately. The aforementioned unanimous overturning of their decision in the PPL case, and another unanimous overturning of their ruling on Montana’s campaign finance law, indicate a problem with the Montana Supreme Court’s interpretation of constitutional rights. This case may move their already-poor record to 0 for 3.

Sen. Debby Barrett, R-Dillon, represents Senate District 36 in Beaverhead and Madison counties. She serves on the Senate Fish and Game Committee.

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Prior to PPL, the state of Montana claimed that it owned most of the streambeds in the state. This idea was the foundation on which Montana’s stream access law was built — the reasoning being that the public had a right to use the property that the state owned. The PPL case blew that idea out of the water, as it were, and provided much more restrictive criteria for which stretches of stream bed the state actually owns.

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Nameless Range said:

Foregoing any of your personal hopes, if you had to put money on it, as if the future of Stream Access were available to bet on in a prediction market, how would you lay your money down?

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ridge-runner said:

Hate to say it but I'm sure this one is headed on up. Not like this one broke Kennedy's bank. And to those back East, the Missouri River is "non navigable" so the concept of public use of water over private land is probably hard to grasp at best. Not Good At All.

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ridge-runner said:

That's the point right? Although the PPL case had nothing to do with stream access, the rationalization about the Missouri and its "navigability" is that what makes sense in the West is going to get lost back East. My fear if this gets in front of the SCOTUS.

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