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A History of Stream Access

In 1803, President Jefferson purchased a large part of the West from France; explorers, trappers and traders had access to streams without question. Of course, Indians held this right long before. In 1889, Montana was awarded statehood by Congress.  The U.S. Supreme Court under the “Equal Footing Act” granted Montana ownership of “navigable streams, lakes and accumulations of land (islands, gravelbars, oxbows) formed in the beds of navigable streams up to the average high water flow line.” From 1889 to the present, stream fishermen and floaters commonly encountered tight barbed-wire fences stretched across streams ostensibly to control cattle, but really to control fishermen from disturbing the tender sensibilities of landowners. The public has been giving up their lawful access little by little through the years.

In the 1970s, the Montana Constitution in Article IX Section 3 said “all waters within the boundaries of this State are the property of the State and for the use of its people.” In 1984 Jim Goetz, attorney in Bozeman, guided a case to the Montana Supreme Court that subsequently ruled: “the public has the right to use Montana's rivers and streams that are capable of recreation use up to the ordinary high water mark.” This ruling opened the way for passage in 1985 of House Bill 265, The Stream Access Law, credited to the hard work of the late Jerry Manley, Tom Bugni and Tony Schoonan, fishermen from Butte whose abiding belief in the public trust led to passage of the law. 
 
There have been many challenges to dismantle public stream access laws and rules by ultra-right adherents and disgruntled anti-government landowners. In 1981, landowner Mike Curran strung fences across the Dearborn River to harass and discourage floaters. He paid dearly when damages and slander was proven against him in court. On July 7, 2000, the Colorado based Mountain States Legal Foundation (MSLF) led by James Watt and Gail Norton, both ex-Secretaries of Interior, filed a lawsuit aimed at striking down our Stream Access Law. They represented James Cox Kennedy of Atlanta who recently had bought 3,200 acres along the Ruby River and others. The landowners were nailing tight barbed-wire to public bridges and complaining that public floaters deny them the privacy of their streambank homes and preventing them to make an income from fishing fees and outfitting. MSLF consists of executives of mining, oil, gas and timber industries, real estate and farm bureaus. They carry the Wise Use property rights banner into prolonged court cases while bleeding disgruntled landowners of their money. Pat Davidson of Billings, a one time candidate for state governor and lobbyist for Bechtel, Burlington Northern Santa Fe and Haliburton, tried to overthrow our Stream Access Law in court. Jack Galt, a Martinsdale rancher filed a court suite against access to the Smith River, and Lowell Hildreth of Dillon closed the public out of the Beaverhead River. In 2005, the east branch of the Bitterroot River was closed by Rocker Huey Lewis and Broker Charles Schwab through double barbed-wire fences to keep fishermen out of what used to be public waters, but now is theirs. The local Soil & Water Conservation District (fox watching the hen house) and Montana Department of Natural Resources and Conservation sided with the landowners in court. At first Montana State Department of Fish, Wildlife & Parks (MTFWP) sided with the fishermen, then changed their minds to support the lockout. At this time (2007), I don't know were the hell MTFWP is in this case.

Now, on March 10, 2007 comes the Property Environmental Research Center (PERC), a Bozeman right-wing think tank, grandstanding to generate more money from its disgruntled, government-hating, wealthy backers, by attempting to discredit our stream access laws and rulings. PERC's staff, masked in college scholarship, weave the slick half-truths that favor privatization of public waters. They unfortunately are burdened with fundamentalist economic myths that cloud their thinking. They are trained to prove by words that black is white and white is black according to who pays them.

There is a long Montana history and tradition of public ownership of our streams with access at bridges. Stream access must be retained for river walkers, fishermen, floaters, researchers, scientists and all those who want to pass on our Montana stream traditions to future generations with fair access for all.
 
Joe Gutkoski, President
Montana River Action

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