Posts tagged: stream access

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

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.

After Utah Stream Access Rights Decimated, Is Colorado Next?

April 8, 2010, by 12 comments

Utah anglers took a big hit to their stream access rights after the governor (oddly) signed legislation largely stripping anglers of access rights accorded them in a 2008 Utah State Supreme Court decision. Now it appears something similar could be afoot in Colorado.

First, in Utah, House Bill 141 wasn’t part of a collaborative process, which makes the goring taken by anglers far more understandable.

In essence, a bunch of landowners – apparently unhappy with giving the public any access to streams – walked out of a negotiation designed to create new stream access law (which included anglers groups), found a friendly legislator, wrote their own bill, and then pushed it through.

Bizarrely, the governor’s staff seem to tacitly suggest 141 was a hummer – that it will hopefully be revised – yet the reason they offer for its signing is counter-intuitive at best.

(KCPW News) Governor Gary Herbert signed a controversial bill aimed at protecting private property rights this morning. House Bill 141 prohibits sportsmen from using streams that run through private property, unless they have permission, or the stream has already been used by the public for at least 10 consecutive years. Ted Wilson, the governor’s senior environmental adviser, says Herbert wants to bring anglers and landowners together to reach a compromise. And that means the bill could be revised in the future.

“By getting both sides together, by coming up with new ways to deal with things, we’re looking at a potential amendment to this bill, or even a brand new bill, hopefully that both sides would agree to,” he told KCPW.

Political spin like this is astonishing. “Yes, this isn’t a great law” we’re told. But maybe it will bring both sides together to talk, ignoring the inconvenient reality that both sides were talking until one side stormed out.

And of course, when both sides come to the table again, it’s clear who holds the upper hand. And it’s not anglers. Read more →

Montana Governor Signs Stream Access Law! Woot!

April 19, 2009, by 2 comments

Montana’s governor just signed HB190 – the stream access bill that allows landowners to build fences that keep cattle in, but not those that keep fly fishermen out.

Read all about it at Yellowstone Fly Fishing blog, which predicts an explosion in Montana turnstile construction.

The whole story at Fly Fishing in Yellowstone blog

Get the news from the Fly Fishing in Yellowstone blog

It’s a good day when legal public access to Montana’s rivers and streams is protected from those who would fence fly fishermen out.

Yay, Montana. Yay!

Montana Supreme Court Refuses to Rehear Mitchell Slough Case, Good Guys Win

January 7, 2009, by 14 comments

The long-running Mitchell Slough case – where wealthy Montana landowners tried to bar public access to a Montana waterway and challenge Montana’s enlightened Stream Access Law – looks to be over.

And it appears the good guys won.

The Montana State Supreme Court refused to rehear the case, leaving in place a decision that should put wide, wide smiles on the faces of fly fishermen:

The Montana Supreme Court will not rehear the Mitchell Slough case.

In an order issued last week, the court turned down two petitions seeking a rehearing on the court’s ruling in November that the slough was a natural waterway and therefore subject to state law for streambed permitting and public access.

“It’s a done deal now except for the formalities,” said Montana Fish, Wildlife and Park’s Chief Legal Council Bob Lane.

The 16-mile-long Mitchell Slough has been mired in controversy for years. The channel runs on the east side of the Bitterroot River between Hamilton and Stevensville through private property, including lands owned by 1980s rocker Huey Lewis.

The two petitions seeking a rehearing were filed by landowners who argued the Supreme Court overlooked material evidence when it issued its ruling on the slough’s status. Landowners argued – and two state district courts earlier agreed – that the slough had been dramatically altered over the years and was no longer a natural stream.

The Supreme Court disagreed and overturned two earlier state district court rulings.

Somedays you’re the trout, somedays you’re the stuck-in-the-shuck emerger. Today we’re all trout.

See you out of court, Tom Chandler.

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Montana Supreme Court Rules in Favor of Stream Access (and Fly Fishermen)

November 18, 2008, by 8 comments

Hot over the wires:

Court Opens Mitchell Slough in Landmark Stream Access Case: New West Missoula

With a 54-page ruling, the Supreme Court deemed the waterway a natural stream, which means access to it is protected by Montana’s stream access law, which is among the strongest in the country. The ruling has been coming for more than two years and overturns two lower-court decisions that had defined the stream the way the Bitterroot Conservation District and several high-profile landowners had advocated it be: Just a ditch.

The case, which has been watched closely across the West as a crucial test of stream access law, has been a long-running extravaganza of protests, celebrity, and political maneuvering but more than that, it has been a spur for complex and often heated discussions on water rights, landownership, what’s natural and what’s not and most of all, how to square the values of the Old West with the demands of the New.

I’m on my way to a class, but you can read the whole story here.

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Montana Stream Access Issues Continue to Simmer, But News is Good

October 5, 2008, by 5 comments

Montana’s enlightened stream access laws have seemingly always been contested by livestock operations and now a wave of wealthy landowners.

Found via the excellent Fly Fishing in Yellowstone blog, we learned a judge recently affirmed the public’s right to access streams where they intersect public roads.

This court case was brought by much-disliked-by-fly-fishermen landowner James Kennedy (Atlanta resident and heir to a media fortune) after he blocked fishing access by attaching fences to bridges, and asserted that the public right of way narrows to the bridge itself where it intersects a waterway.

Fortunately, he’s not just an ass, he’s an ass with a losing legal argument: Read more →

Oregon’s Applegate River Access Issue Fires Debate, Acrimony

June 2, 2008, by 4 comments

Via the Oregon Mail-Tribune’s consistently excellent outdoor writer (Mark Freeman) comes news of continuing acrimony over fishing access to the Applegate river — where taxpayer-funded hatchery fish remain out of the reach of anglers without connections to private property owners:

Public access on the Applegate has been a recurring abscess in the craws of anglers wanting access to taxpayer-funded hatchery fish in a river flowing almost exclusively over private lands where anglers are increasingly not welcomed — often over bad behavior among a few fishing slobs.

With only a handful of public-access points remaining, some anglers are growing frustrated that the only consistent access to a public resource is by private landowners and their friends.

"It’s the ‘I got mine, the heck with you’ thing we see a lot of," says Chuck Closterman from the Middle Rogue Steelhead Chapter of Trout Unlimited, which submitted the rule change.

"I know they want to keep it for themselves," Closterman says. "But this is a fairness issue."

Sound a little like California’s Fall River in the 70′s (and an increasing number of places today)?

Sadly, access issues will become increasingly common as public access to privately bordered waters grows ever more restricted.

We’ve seen major flareups back east, in Montana, and right here in Siskiyou County.  Buckle up, Undergrounders.

You can read more here: MailTribune.com: Applegate River fishing proposal stirs debate

Total Victory? Not Quite. But A Win In Our Battle to Protect Our River Access

November 13, 2007, by 12 comments

It’s late, so I’ll top this post off with more detail later. For now, I can hit the river without a little nagging voice in my head yelling at me to do something about this stupidity.

That’s because the news is good. Not perfect, but good.

No, the supervisors didn’t vote to do away with the whole Natural Resource Advisory Committee idea.

In fact, they didn’t vote on it at all.

The good news? The language forcing the committee to use the much-reviled draft Natural Resource Policy (the document that contains the illegal non-navigability clauses) was stricken from the ordinance.

The bad news is the board hasn’t committed to any kind of process for developing a set of sane, rational Natural Resource Policies.

You could say I’m uneasy. But relieved.

It’s not all out victory. But it’s a win. And clearly, all the noise caught their attention (by meeting time, you folks had sent 113 emails downrange).

Not one of the supervisors defended or even mentioned the draft Natural Resource Policy in their comments — even as one person after another stood up and characterized those policices as divisive or narrow or illegal or any of a handful of other unhappy words.

We’ve still got to keep an eye on this issue, but it won’t rear up on its hind legs again until January.

In the meantime, I’m going fishing. You magnificent, email-writing bastards should too. Enjoy the stuff we’ve been fighting for.

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