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The Battle for Stream Access in Montana

Trout Rustling Gone Mad

by JOHN HOLT

Greed, insecurity and just plain old “I got mine, screw you” bullshit is making itself more and more apparent in Montana when it comes to fly fishing. The situation often involves big-money yahoos locking up land access to prime waters by purchasing land leases from ranchers who own acreage on one of both sides of rivers flowing through their property. These leases effectively close off access to trout streams or make reaching the waters an extremely difficult and lengthy process. Former network news readers, has-been movie stars, over-the-hill writers and yuppie arbitragers are all part of a concerted effort by a few to deny fly fishing to many – a tangible metaphor for the escalating land grab perpetuated by the terminally wealthy not only in Montana but much of the West.

Aside from the fact that the state has some of the finest trout waters anywhere in the world – the Madison, Yellowstone, Bitterroot, Bighorn, Beaverhead and on and on, what sets the state apart from the rest of the country and also the world is its stream access law that gives anglers the right to fish on nearly every river, stream and creek that flows out here.

Montana is unique among other Western states and most states in general. In 1984, the Montana Supreme Court held that any river or stream that has the capability to be used for recreation, such as fishing and floating, can be used by the public regardless of whether or not the river is navigable and who the owner of the streambed property is. The result is that anglers and floaters have full use of most of the rivers in Montana for fishing and floating, along with swimming and other river related activities. This is known as the Montana Stream Access Law, a law that has been under attack by out-of-state interests since its inception.

On Mitchell Slough in the Bitterroot Valley, a stream local residents have fished for decades, wealthy out-of-staters attempted to close access but were overruled when   the Montana Supreme Court ruled in 2008 that the 16-mile-long stream is open to the public and that the landowners are not entitled to fence it off as part of their private sanctuaries. The court said the slough roughly follows the historical course of a waterway mapped 130 years ago, and therefore is subject to public access and required permitting, as are other natural waterways. The 54-page decision overturned two earlier rulings by state district courts that found the slough was not a natural, perennial-flowing stream.

Opponents to the law as it applied to the slough include former pop star Huey Lewis, Charles Schwab, Private Wealth Partners managing director Kenneth Siebel and a home belonging to Anthony Marnell II, the head of a casino construction company, is built over a tributary to Mitchell Slough.

In 2006 Lewis said in The Times that those in favor of public access on Mitchell Slough had “done a masterful job of casting this as a class-warfare issue… ‘Rich out-of-staters’ is an expletive, and they try to make it a battle against them and rich out-of-staters,” he said. “There are 25 people, and 20 are not rich and not out of state.” Lewis also said of Montana that there is “more cheese, fewer rats” than in California.

Montana’s law was passed in response to a 1984 state Supreme Court ruling that granted public access to all surface waters “capable of recreational use,” regardless of who owns the streambed, because surface waters are state property, held in public trust. The stream-access law narrowed that ruling, allowing recreational access to all “natural water bodies” but exempting private irrigation ditches. The law was challenged in 1987, and the court confirmed its intent.

In 2011, Rep. Jeffrey Welborn, a Republican from Dillon, tried another tack to curb the Stream Access Law: clarifying its prohibition on recreational access to ditches. The bill sought to broaden the definition of a private ditch to include many public waterways. It would have prevented anglers and floaters from using all waterways where the return flows from irrigation make up the majority of the flow, as well as side-channels of braided rivers and streams where irrigation controls are located at the head of the braid.

Critics say the bill was extreme, not only reversing the Mitchell Slough decision, but also seriously restricting Montanans’ stream-access rights. Under it, even the Bitterroot River would be defined as a ditch, according to Bob Lane, chief legal counsel for Montana Fish, Wildlife and Parks, because of the amount of water diverted from it during irrigation season.

“In fact, almost all rivers and streams in Montana, except those in wilderness areas and the headwaters of streams on Forest Service land, could no longer be used by the public,” Lane said in a High Country News article last year. “(The bill) not only doesn’t work, it just doesn’t make any sense.”

Former Montana U.S. Attorney Bill Mercer, a paid shill for the proposed legislation, says it simply aimed to restore the original purpose of the 1985 Stream Access Law, which was, he says, to preclude recreational use of water after it leaves the main body for irrigation. The bill won approval in the House, but died in the Senate Agriculture, Livestock and Irrigation Committee.

Bitterroot Valley fat cats are primary backers of the elitist legislation, but singer Huey Lewis claims “It ruined the Mitchell. The idea of that becoming a good fishery is over. It was becoming a spawning area — kind of a nursery — for the Bitterroot River, that’s gone. … It’s going to become the mud ditch it was when we first found it.”

Good old has-been Huey may be right, though I doubt it. If he is, he can always go back to Pebble Beach and play golf with his corporate buddies.

 

And individuals and guiding operations are just as greedy as private land owners. Leases are being bought up to exclude the common man from fishing streams like Sixteen Mile, the Shields and on and on.

Along the North Fork of the Blackfoot River a large fly-fishing outfitter/guiding operation has run fence directly up to a bridge crossing the stream in violation of the law. This practice is common throughout the state. On a recent trip I noticed this exclusionary practice on bridges spanning streams that included the Dearborn, the Musselshell drainage, Swift Creek, the Yaak drainage and the Teton.

No big deal you say. There’s plenty of public access through state holdings, national forests, BLM and national parks. Perhaps, but should the state’s access law ever be overturned, and its under threat every second of its life, kiss goodbye fishing to a lot of rivers like those mentioned above along with others that include the Ruby, Boulder, Big Spring Creek, Blackfoot and on down the line. Large portions of these rivers wander through private holdings..

In April 2009 Montana’s governor Brian Schweitzer signed HB190 – the stream access bill that allows landowners to build fences that keep cattle in, but not those that keep fly fishermen out. This is an important victory against out-of-state landowners and developers who have spent loads of cash from a large war chest in a greedy attempt to overturn the access law.

Anglers in the state may fish between the ordinary high water marks of a stream. The Montana legislature in 1985 defined the ordinary high water mark as:

  • Ordinary high-water mark” means the line that water impresses on land by covering it for sufficient periods to cause physical characteristics that distinguish the area below the line from the area above it. Characteristics of the area below the line include, when appropriate, but are not limited to deprivation of the soil of substantially all terrestrial vegetation and destruction of its agricultural vegetative value. A flood plain adjacent to surface waters is not considered to lie within the surface waters’ high-water marks.

This means that an angler or a floater has full recreational use of a river below the rivers ordinary high-water mark. Recreational use is considered to be:

  • Recreational use” means with respect to surface waters: fishing, hunting, swimming, floating in small craft or other flotation devices, boating in motorized craft unless otherwise prohibited or regulated by law, or craft propelled by oar or paddle, other water-related pleasure activities, and related unavoidable or incidental uses.

A fly fisher can fish and float with non-motorized craft with only a handful of specific restrictions that are listed in the most recent fishing regulations. Motorized watercraft have further restrictions on their use (these restrictions are there to prevent conflicts between motorized boats and floaters/wade anglers/float anglers.

Since the Montana stream access law applies to virtually all rivers and streams in Montana that are found on private property, many of these rivers are quite small and have various man-made and natural obstructions in the river. A floater or angler who encounters these obstructions may also climb above the high water mark to get around these obstructions in the least intrusive way possible. The statute clearly states that this is legal; but the law does not give the public right to cross private property to reach the rivers.

Obviously wealthy landowners who thought that they were buying their own private Montana are angry. The conflict comes because the Montana Stream Access Law says the public owns the rivers. For recreation, including hunting and fishing, everyone has a right to get access to virtually any waterway that flows through private land. But many landowners have put up fences to keep people away from the streams, an act that is now in violation of the Stream Access Law.

For example, lack of access to the Ruby River has discouraged anglers. There have been a number of complaints from fishermen who have been yelled at and photographed and who have even heard warning shots fired as they fished prized trout streams flowing through private land, which is legal as long as they stay within the high-water marks.

The fight is contentious to say the least along the Ruby River, designer trout water with a good population of large brown trout that hold tight to brushy banks and along the bottoms of sapphire runs and pools. The river drifts through a valley of landowners who have put up fences to keep people off most of the river’s lower stretch.

Some landowners ”erroneously are trying to lay claim to a public resource,” said Dick Oswald during the height of the conflict a few years ago. Oswald is a fisheries biologist for the Montana Department of Fish, Wildlife and Parks in nearby Dillon. ”I suspect they didn’t do their homework before they bought land. This is America, not feudal Europe.”

”Montana has the last of the wild trout fisheries; the rest are shot,” said Reid Rosenthal in an article in the New York Times in 1997, president of Country Roads, a company in Sheridan that manages many ranches that have been bought by wealthy fishermen and sells fishing vacations along the Ruby River. His view is typical of those opposed to the stream access law.

Rosenthal said he and his clients did not oppose public access to the Ruby but wanted a change in regulations that allow each angler to keep five trout a day. Mr. Rosenthal said allowing such catches would destroy the fishery. But proponents of public access point to a memorandum Rosenthal wrote to his ranch-owning clients in support of fund-raising for a campaign to overturn the Stream Access Law by taking it to Federal District Court, and the Supreme Court, if necessary. In the memorandum , made public by the pro-access Montana Wildlife Federation, Mr. Rosenthal said, ”Don’t kid yourself, this situation is really one of social resentment, jealousy and envy, not fishing access.”

Perhaps tired of all of the flack he received for his elitist position Rosenthal later said that he no longer supported a campaign to repeal the access law. ”I wish I’d never written that damned thing.”

Montana governor Brian Schweitzer has said the state is committed to defending the river access law. ”If you want to buy a big ranch and you want to have a river and you want privacy, don’t buy in Montana. The rivers belong to the people of Montana.” So far, to his credit, Schweitzer has not backed off this statement.

For now people can access Montana’s trout streams even if they have to climb over, under or go around obstructions like those presented by the outfitter on the Blackfoot. But everywhere I go I hear stories (hopefully just that, stories) of out-of-state Montana landowners building up a huge war chest to wage yet another attack on Montana’s Stream Access Law.

“The attempt to make heaven on earth invariably produces hell,”  said Austrian philosopher Karl Popper; and Jefferson said “The price of freedom is eternal vigilance.”

Concerning the state of trout fishing and public land use in Montana and the West, nothing could be more applicable than those two comments.

John Holt is the author of Yellowstone Drift, published by CounterPunch/AK Press. He lives in Livingston, Montana.