Public Access vs. Property Rights

Before the holiday, a long-standing case in Montana, often referred to as the Mitchell Slough case, was brought to a close. As recapped in this morning’s New York Times:

“The Montana Supreme Court ruled… that the 16-mile-long stream, Mitchell Slough, is open to the public and that the landowners are not entitled to fence it off as part of their private sanctuaries.

Montana law is firm in allowing the public access to streams and rivers that flow through private land, up to the high-water mark. The law states that fishermen can walk in a stream or along the bank up to the high-water mark if they enter the waterway from public land like a bridge. They may not cross or walk on private land above the mark without permission.

In this case, though, two dozen landowners… argued that irrigation diversions had so thoroughly altered Mitchell Slough that it was no longer a natural waterway and that therefore the stream access law should not apply.”

According to an editorial in New West, this ruling could discourage landowners from practicing good stewardship of the land.  However, as reported by the Missoulian, the Montana Supreme Court and the Ravalli County District Court say it came down to whether the slough was natural or man-made:

Ravalli County District Court ruled… the slough was no longer a natural stream because of years of manipulation by man – and therefore not subject to the state’s permitting process or stream access law.”

“Since nearly every river and stream in Montana has been affected in some manner by man, the [Montana Supreme Court] concluded: “The District Court’s dictionary-based definition, which essentially requires a pristine river unaffected by humans in order to be deemed natural, results in an absurdity: For many Montana waters, [Montana’s Stream Access Law] would prohibit the very access it was enacted to provide.”

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