Access Issues

Supreme Court To Decide Issues of Commercial Navigability, Public Access For Missouri River (And The Rest Of Us)

December 5, 2011, by 13 comments

The Supreme Court of the United States (SCOTUS) will hear a case on Wednesday that could have huge implications for river and stream access across the United States.

The question is whether the Montana State Supreme Court ruled correctly when they said the Missouri River’s “Great Falls” were owned by the state instead of PPL Montana — an electrical utility with hydropower installations at Great Falls.

While the case revolves around a few obscure points — one of them being whether the Missouri was commercially navigable during the time of the Lewis and Clark expedition — the outcome could have a huge impact on recreational access, as this quote from the Great Falls Tribune story suggests:

“The fundamental thing here is PPL wants to take land owned by Montana for its own good,” said Bruce Farling, executive director for Montana Trout Unlimited, which filed a brief supporting Montana in the case. “The state of Montana is saying, ‘No, that’s our land, you’ve got to pay rent for occupying it.’”

With state ownership of major riverbeds, the public has more influence over conservation and fishery protection in instances such as the installation of pipelines and bridges, Farling said.

Montana already has the toughest stream-access law in the country, giving recreationists access to any natural stream irrespective of who owns the banks, he said. But the PPL case could affect recreation in states where stream access laws aren’t as strong, and are based on navigability, he said.

To get a sense for the extreme level of water law geekery involved, you should probably read the article, though I’ll try to keep an eye on this one for you.

UPDATE: ChiWulff posted a good summary of this issue here.

See you in court, Tom Chandler

Crazy Is As Crazy Does In Siskiyou County

November 17, 2011, by 19 comments

Longtime readers will remember the Underground’s unpretty Siskiyou Land Use Policy fight (list of Land Use posts here), where the Siskiyou County Board of Supervisors attempted to unilaterally designate all the rivers in the county (including the McCloud and Upper Sac) as non-navigable.

This would have greatly limited public access.

With your help, a group of locals and CalTrout turned that one back, but given the views of those populating the Siskiyou County Board of Supervisors, I warned you then it wasn’t over.

And it isn’t.

Powered By The Klamath River

With Klamath River Dam Removal issue as a backdrop, the question of public access to navigable rivers — the central theme of our prior fight — has popped up again in Siskiyou County.

At a recent meeting, County Sheriff (Jon Lopey) — apparently grandstanding in the hopes of furthering his political ambitions — decided to single-handedly redefine the legal standard of navigability(from the Two Rivers Tribune):

Murphy said he’d tried to research navigability but the results were inconclusive and asked Lopey for his opinion. Lopey answered, “It’s not navigable if you can’t put a boat on it,” and coached landowners that they have a right to file a complaint if people trespass.

Wow. The leading law enforcement official in the county doesn’t know the legal standard of navigability (hint: it involves prior use for purposes of commerce). Based on this faulty knowledge, he tells landowners they can charge the lawful members of the public with trespass?

Excellent! What could possibly go wrong?

Participants in the Land Use fight will likely recall Supervisor Jim Cook — who after receiving a couple hundred protest emails took to telling emailers they were “bizarre.” At the same meeting, Cook was quoted as saying:

Jim Cook, chair of the County Board of Supervisors, said the county government could declare whether a water course was navigable or not and suggested the county would take action.

Extreme Legal Scholar Cook might want to research that assertion. It’s not true.

Not even close.

Just The Facts… Not

Driving all this is the potential removal of the Klamath River Dams, which among the dam-hugger set is generating an astonishing number of “facts,” including:

  • The water-heating, toxic-algae spawning dams actually protect salmon runs
  • The government is trying to run Siskiyou County ranchers off their land to create a huge game preserve run by the UN
  • Coho salmon aren’t native to the Klamath basin (despite being native everywhere else), so protecting them is actually illegal

None of the above comes within even artillery distance of the truth (I’ll debunk them for you if you really need it done), yet they’re widely accepted as fact in Siskiyou County.

In a recent newspaper editorial, an outdoor writer — who apparently dreams of black helicopters in his sleep — compared dam removal proponents to the 9/11 terrorists.

(Charmingly, he also compares opponents to “vermin” and “liars, cheats and thieves”.)

Welcome to Siskiyou County.

You’ll come for the fishing, but you’ll stay for the vicious, invective-ridden local politics.

This isn’t a call to action… yet.

Still, dam removal — and all the craziness that’s accompanying it — is gaining profile. And more crazy is sure to come.

This one’s going down to the wire, and mostly likely, you’ll be asked to contribute a minute or two of your time at a handful junctures along the way.

See you sharpening those pencils, Tom Chandler.

Utah Stream Access Fight Takes on New Dimension; Court Asked For Summary Judgement

September 8, 2011, by 1 comment

The ongoing fight over public access to many of Utah’s streams and rivers continues as the Utah Stream Access Coalition asks a judge to issue a summary judgment against the law — created in secret by the legislature — which reverses an earlier state supreme court decision. (From the Salt Lake Tribune):

The nonprofit coalition, which earlier filed suit in Heber City’s 4th District Court against a landowner along the Upper Provo River, has filed a motion asking Judge Derek P. Pullan for a summary judgment, declaring the law unconstitutional.

The law, known as the Public Waters Access Act, generated debate over private property rights versus public access even before it was passed.

In a memorandum supporting its motion, the coalition argues that waters flowing in Utah’s rivers and streams “are and have always been owned by the public and, as such, are public waters.”

The case names ATC Realty Sixteen Inc. as defendant. That California-based entity owns a real estate development in Wasatch County called Victory Ranch that is bisected by five miles of the Upper Provo River, directly upstream of the Jordanelle Reservoir.

In what I’ll gracefully describe as a weasel quote, the state’s attorney general offered only a red herring in defense of this remarkably bad law:

The law arose as a means to balance private property rights with public access, Roberts said. Property owners complained that anglers and boaters would come out of the river channel and trespass on their lands.

“People are walking along the edge of their property. Can they camp out? Can they cook food?” he said. “A number of legislators wanted to give some authority back to the property owners.”

Under the supreme court decision, If they’re not in the channel, they’re trespassing (no, they can’t camp out). In other words, the AG is full of shit.

Cross your fingers for the Utah Stream Access folks on this one…

See you in court, Tom Chandler.

Assault on Montana Stream Access Ends As HB 309 Tabled in Committee (yay!)

March 22, 2011, by 7 comments

The latest assault on Montana’s enlightened stream access laws appears to have gone the way of the Dodo bird, and for once, extinction looks pretty good (from the Ravalli Republic):

The Montana Legislature’s House Bill 309 reopened a simmering dispute over a slough running through the Bitterroot Valley property of 1980′s rocker Huey Lewis and others. The courts ruled several years ago that the slough be open to fishermen under the state’s stream access law.

Ranchers and others had sought to make clear that irrigation ditches are not open to anglers. But anglers argued the legislative proposal would have closed to access more than just ditches.

The measure had cleared the House, only to face a large crowd of opponents in the Senate. It was tabled late Tuesday in an 8-3 vote in the Senate agriculture committee.

I’m sure someone will launch a new attack on stream access, but for now, we get to fish.

See you on the river (legally), Tom Chandler.

The Post Anti-HB 309 Rally News (or, Montana Anglers Step Up For Stream Access Rights)

March 9, 2011, by 2 comments

Yesterday, a crowd of (mostly) anglers jammed the Montana Senate Hearing on HB 309 = the anti-stream access “Ditch Bill” currently under consideration in the Montana legislature.

The byproduct of the Montana Supreme Court’s decision designating Mitchell Slough as a public waterway – a decision bitterly opposed by landowners who would rather the riff-raff recreate somewhere else – HB 309 defines irrigation ditches so broadly that many of Montana’s most popular fisheries (including big rivers) would qualify.

Bad move. Here’s are the links:

Wayne at WillFishForWork.com offers his usual insightful commentary.

ChiWulff puts together an and impressive array of news links

Headhunters blog offers information from the frontlines of the rally itself

The Missoulian newspaper offers an interesting angle on high school students who skipped school to stand up for what they believe in.

The Billings Gazzette offered a headline of “Big crowd opposes bill that addresses access to ditches” and a generally good article, which included:

Sen. Jim Shockley, R-Victor, criticized the bill, saying: “Real ranchers don’t have a problem with the law as it is.”

He said property rights are important, but so are public property rights because the public owns the water.

“This would be economic development for lawyers,” he said. “The only persons who would benefit from this is a few landowners in the Bitterroot and lawyers.”

The crowd cheered his remarks, but was admonished by committee Chairman Don Steinbeisser, R-Sidney, to refrain from applauding.

Sen. Kendall Van Dyk, D-Billings, said that if you take away the Mitchell Slough issue, there is no real problem over stream access in Montana.

“Access is not for sale in Montana,” he said. “We have created the best legal structure for stream access across the West and probably in the country.”

It seems clear that proponents of HB 309 weren’t ready for the opposition, which was apparently the biggest group to appear at any Montana legislative hearing this session.

Good on everyone who made the trip; let’s hope this sucker dies in committee.

Oops, we missed [this one from Fly Fishing in Yellowstone] (http://flyfishyellowstone.blogspot.com/2011/03/lighting-fires.html)

Latest Attempt to Erode Montana Stream Access Encountering Opposition, Rally…

March 7, 2011, by 8 comments

Tomorrow, people will begin converging on the Montana Capitol Building in Helena to put the boots to those supporting HB 309 – the latest anti-stream access legislation making it’s way through the Montana legislature.

The Montana fly fishing blogs have done an admirable job keeping the rest of the world informed about what’s really happening: Chiwulff states their case here, and WillFishForWork offers up an excellent summary of the whole mess in this information-laden post (excerpt follows, but you’ll want to read the whole thing):

Tuesday March 8th is the big day in Helena. Senate hearings start up and on the agenda is Montana Stream Access HB 309, the “ditch” bill. Stream access supporters will be gathering to tar and feather the representatives supporting the bill voice opposition to this bill. The Rally will start at 2 PM, in the Old Supreme Court Chambers in the Capital Building in Helena.

The dust has settled a bit over the last week or so since the bill made it through the house and onto the senate floor. Askaboutflyfishing.com was good enough to donate some of it’s air time on Wednesday evenings show to put a quick spotlight on HB 309 and posting a link off their site to find out more about putting this bill down.

On the opposite side of the ditch issue we hear from Rep. Debby Barrett (R) from Dillon on Montana TU’s opposition to HB 309, Barrett refers to the TU as Dr. Suess’ Lorax, “I am the Lorax, I speak for the trees” and (Trout Unlimited) “professes to speak for sound water policy and senior water right holders in Montana, but the honest truth is that Trout Unlimited represents a very narrow and radical view on Montana’s water that helps no one but Trout Unlimited make a name for itself”. Hmm, narrow and radical view. Sounds like pot calling the kettle black. If Montana TU is a narrow minded bunch of radicals, what does that make the Montana Farm Bureau, the Senate Ag committee, Huey L. and Charles S.? The voices of open democracy?

If you’re not up-to-date on this issue, HB 309 is an attempt by a handful of legislators to redefine “irrigation ditch” so a couple wealthy landowners won’t have to abide by a recent Montana State Supreme Court decision granting public access to Mitchell Slough.

The misinformation flowing from HB 309 proponents has been intense; they invariably neglect to mention that irrigation ditches are already clearly defined under Montana law, and that HB 309 has serious potential for misapplication – some have noted that some Montana’s biggest (and best) fly fishing destinations could be reclassified as “ditches” under the law.

As noted above, a couple of attacks have been launched against Montana Trout Unlimited and those who would are fighting to kill HB 309 – attacks which invariably ignore the real issues in favor of a constant stream of strawmen.

Let’s hope this hummer doesn’t have the votes to get out of the Montana Senate, and that a sizable crowd shows up tomorrow and drops the hammer on this whole charade.

See you in the ditches, Tom Chandler.

Assault On Montana Stream Access Law Moves On To Montana Senate; Get Those Keyboards Ready….

February 11, 2011, by 9 comments

Montana’s stream access laws have long been attacked by those who would rather the public didn’t have access to all those fishable rivers and streams, and right now, it looks like the bad guys are winning.

HB 309 (the “Ditch Bill”) redefines the concept of irrigation ditch to include a lot of waters in Montana, and the bill has passed the House and is on its way to the Montana Senate.

Wayne at the WillFishForWork blog offers this insight:

So I was not surprised to see Montana HB 309 pass the 3rd reading today by a party line vote of 57-43. Now it goes on to the Senate where again the Republican majority will no doubt rubber stamp the thing and send it to the governor.

Fortunately, Montana’s current governor is a Democrat and has already expressed his opinion on the amount of garbage bills the current legislature is cranking out and historically has had no qualms about butting heads with them. The good news is that while House Republicans have the two-thirds vote to override a veto, the Senate Republicans would fall short, if votes adhere to party lines.

In this story, a Montana Senator thinks he has the votes to kill the bill, which he calls “the biggest assault on Montana’s Stream Access Law in years.”

If this passes the senate, I think it would be time for the Undergrounders to go all medieval on the thing by flooding the governor with emails.

I’ll try to update this post as things progress, but not surprisingly, several Montana fly fishing blogs are doing most of the heavy lifting around this mess, including, the Troutbugs blog, WillFishForWork, In the Back Eddy and ChiWulff.

ChiWulff points us toward a hilarious-if-it-weren’t-so-true editorial by Montana TU’s Bruce Farling, which includes gems like:

During the campaign season, majority party lawmakers in the Montana Legislature promised voters they would focus in January on balancing the state’s budget, reducing unnecessary government and creating jobs. Who could argue with these general goals?

Apparently they were kidding.

Instead of addressing the economy, many Republican legislators are spending – many would say wasting – inordinate time reviving culture-war issues, addressing pet grudges, attacking what they perceive as government interference in business and our personal lives, and crafting divisive bills that, well, increase government interference in business and our personal lives, such as prohibiting companies from banning guns in employee vehicles, or forcing medical procedures on women.

…

HB 309 undermines our balanced stream access law by classifying as “ditches” natural streams that have been modified by irrigators, such as channels that have been manipulated by irrigation control structures. Also qualifying as “ditches” would be natural stream reaches that include flows augmented by irrigation water that was diverted from the channel, but returned to the stream farther down stream.

HB 309 will turn kids who swim in the side-channels of Rattlesnake Creek in Missoula or Fleshman Creek in Livingston into trespassers – no matter that families have recreated in these natural stream channels for generations. Public use in these waters and many others will be outlawed simply because years ago irrigators were allowed to control flows in these channels using diversion structures.

If this bill passes, it will be illegal for you to fish, swim or float without permission in many popular waters simply because they’ve been modified by an irrigation structure or include return flows. This list includes main-stems or side-channels of the Beaverhead, Milk, Big Hole, Yellowstone, Jefferson, Bitterroot, Gallatin, upper Clark Fork, and most if not all streams and natural sloughs in irrigated areas. If the bill passes, families, anglers, floaters and guides will be kicked off hundreds of miles of streams we have been using since Montana became a territory. Angling, much of it on streams, generates $300 million to Montana’s economy. Our nationally acclaimed stream and river fishing has long been a carrot for business people locating in Montana. How does it help the state’s economy when you kick anglers off our streams?

As In The Back Eddy noted, this bill has its roots in the Mitchell Slough court decision, where landowners (including former rock star Huey Lewis) lost in their battle to keep the public out of a river side-channel.

Frankly, those with even middling memories will note the similarities between this bill and the recently successful attempt to severely limit stream access in Utah.

Both come as a result of a court action that denied landowners (typically wealthy landowners) the ability to privatize a public resource, and both represent sneaky and apparently (to begin with) under-the-radar attempts to resolve what the courts have already decided – and in the public’s favor.

If this goes to Montana’s governor, you’ll have homework Undergrounders; emails and letters to write.

See you with pen in hand, Tom Chandler

Utah Stream Access Coalition Files Lawsuit Challening “Unconstitutional” Access Law

November 15, 2010, by 1 comment

We predicted this one was coming; the Utah Stream Access Coalition has filed a lawsuit challenging the developed-behind-closed-doors legislation that removed many of Utah’s streams and rivers from public access (and then tried to sell it back to the public).

From Brett Prettyman’s Salt Lake Tribune fly fishing blog:

Late Friday we received word that the Utah Stream Access Coalition had filed a lawsuit claiming that the Public Waters Access Act passed through the 2010 Legislature was unconstitutional. Among the groups listed in the suit: Victory Ranch; the Utah Division of Wildlife Resources and Wasatch County Sheriff Todd Bonner. Here’s the story the Tribune broke on Friday.

Some of the comments in the story are absurd, but were entirely expected. Anglers have been trying to be involved in setting a fair law from the beginning, but have been totally rebuffed by those people who would claim to represent all Utahns. Ted Wilson, the governor’s senior adviser on the environment, said he was disappointed that anglers went ahead with the lawsuit. And I’m a little disappointed that he said that.

Later, Utah’s anglers are called on to meet:

I’m sure the lawsuit will be the main thrust of discussion at the upcoming Utah Waterways Task Force Nov. 18 at 11 a.m. at the State Capitol in Room 250. It is time for anglers to show up en masse again and let their voices be heard. Lawsuits may get their attention, but real people standing up for their rights is just as important for the task force to see.

The still-under-construction Stream Access Coalition website doesn’t hold news of the lawsuit, but probably will soon.

Here’s hoping the original land grab legislation goes down in flames.

See you in court, Tom Chandler.

Utah Stream Access Fight Hotting Up Again (We Smell a Lawsuit In The Air…)

August 27, 2010, by 3 comments

Utah’s stream access issue – where a small group worked to successfully privatize public resources – seems to heating up once again, and frankly, we’re happy to hear it.

If you missed it the first time around, Utah anglers won a State Supreme Court decision guaranteeing them access, but got blindsided by legislation cooked up behind closed doors.

When HB141 was signed in late March, it effectively closed off access to much of Utah’s streams and rivers, and to make matters worse, proponents of the bill offered up a “pay-to-play” plan to restore some of the access – essentially making Utah (and out-of-state) anglers pay to access water they could walk to just a few months prior.

According to this Salt Lake Tribune opinion piece, opposition to the probably illegal HB141 legislation is ramping up, and a lawsuit appears imminent.

A lawsuit is close to being filed and a new group has emerged with the promise to “promote and assist in all aspects of securing public access to Utah’s public waters and stream beds.”

The Utah Stream Access Coalition made its appearance on Facebook in late July. Among the founders is David Serdar. If you don’t think he is serious about the issue of stream access in Utah, consider that he resigned his position with the Stonefly Society — the local Trout Unlimited chapter in Salt Lake City — to avoid conflicts with that organization’s rules about access issues.

“Basically the idea is to enhance stream access by any means necessary,” Serdar said.

Good luck to Utah’s anglers, who may have the law on their side, but are facing a typically western group of entrenched interests bent on privatizing a public resource.

See you in court, Tom Chandler.

Utah Anglers Get Reamed With Bad River Access Law, Now Expected to Pay For It Too (and like it!)

June 30, 2010, by 10 comments

Stream access and invasives are fast becoming fly fishing’s seminal issues, and nowhere is the access problem clearer than in Utah, where anglers have taken a series of hits at the hands of a political machine which operates (like many in the west) for the sole benefit of a few.

Here’s how it rolls for fly fishermen in Utah:

  • In 2008, State Supreme Court decides anglers OK to fish streams as long as they don’t trespass to get there
  • Working group formed to address access issues caused by ruling (includes anglers, sportsmen’s groups, etc)
  • Ranchers, real estate interests leave working group in a huff, and working in secrecy, put together HB 141 – which severely limits access to waters that haven’t been open to public access for the last ten years – and then fast track it,
  • Chickenshit governor kisses real estate butt, basically says “gee, this doesn’t look like very good law” but signs bill anyway, suggests maybe it’ll get fixed later
  • New group formed to deal with (much worse) access problems and very real fallout affecting Utah’s $708 million fishing industry
  • Best they can come up with is to charge anglers $5 to buy back the access the State Supreme Court gave them

Here’s an idea: Instead of paying for a $5 stamp (in perpetuity), why don’t anglers donate two years worth ($10) to a legal fund which would challenge the arguably unconstitutional HB141?

Perhaps one of our Utah readers would offer up an opinion as to which group seems best equipped to mount a legal challenge.

See you on the river, Tom Chandler.