Questions about the future of stream access

Is stream access doomed? That is the question sportsmen are whispering across Big Sky Country as a special interest group pushes a bridge access case it lost through the state appellate court.

At stake is the state’s claim of legal control over 68,000 miles of privately owned stream bed. That is a fair stretch of real estate by anyone’s measure — touching thousands of Montana landowners of every stripe.

Three forces imperil stream access as we know it. First is the sheer weight of 125 years of original Montana law that preceded the current, 28-year-old Gen-X version.

The five or six generations of Montanans who settled and built this state used a simple legal test to determine whether the public could access a stream: “Does the state own the bed and banks of the stream?” If so, public access followed. If not, to paraphrase the Montana Supreme Court on the subject, the public has no right to fish where it had no right to be.

That all changed in 1984. Montanans awoke to a new rule — title to streambeds is irrelevant. Anyone now had the right to wade or walk on the bed and banks of any stream capable of recreation in fact, regardless of who owned those beds and banks.

The Gen-X access rule’s fundamental flaw is that it tramples vested private property rights, which the U.S. Constitution expressly prohibits without due process and just compensation. That’s precisely why Gen-X stream access has been subjected to repeated litigation, and why the issue will not go away (even if it survives the bridge access lawsuit).

The second force threatening the Gen-X rule is nothing less ominous than the Supreme Court of the United States (SCOTUS). Montana caught SCOTUS’s attention when the state tried to collect tens of millions of dollars in rent from a utility that owns dams on certain rivers.

In a rare 9-0 decision in PPL v. Montana, SCOTUS summarily struck down the legal theory Montana used to assert rights in streambeds. What’s more, it reasserted a bright line rule that the original stream access cases dismissed — Montana can’t assert ownership-type control over streambeds it doesn’t own, period.

In short, SCOTUS informed Montana that title to streambeds always matters. Gen-X stream access came full circle and face-to-face with Montana’s past. Title to streambeds determines who can wade and fish — something older generations of Montanans have always known.

And so it seems clear, even to most sportsmen, that for the same legal reasons Montana cannot usurp control of the bed of the mighty Missouri River at Black Eagle Falls, Montana also cannot take control of the 68,000 miles of non-navigable streambeds winding across the state. Logically, if Montana can’t charge rent on streambeds it doesn’t own, it certainly can’t purport to grant public easements on them either.

The third force threatening stream access is the Seyler Lane bridge access appeal itself. Will this case prove to be the proverbial straw that breaks the Gen-X stream access camel’s back? SCOTUS has made abundantly clear that Montana cannot ignore Supreme Court case law or federal law.

One has to wonder why the special interest sportsmen devoted to the Gen-X stream access rule are pursuing this questionable strategy in the appellate court. Wasn’t the bridge access legislation enough?

Perhaps justice between the ordinary high water marks demands that the flawed legal reasoning, political hubris and covetous overreach that spawned the Gen-X stream access rule will ultimately usher that rule into oblivion.

Diane Rice is a rancher and former state legislator from Harrison.