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

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.

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.

While Utah’s debate appears to be over for now, it seems the access wars are only heating up in Colorado.

Same Story, Different State

In Colorado, a new round of battles over streams access are heating up – as illustrated in this piece from the Wall Street Journal:

The debate has spilled into the state legislature and inspired at least 24 citizen-sponsored ballot initiatives. The core question: Do paddlers have an absolute right to float down any river in the state, even rivers that run through private property reserved for fly-fishing?

Steve Roberts says no.

His family owns a 150-acre dude ranch amid the aspens and lodgepole pines of southwest Colorado. The Taylor River runs through the property for three-quarters of a mile, and a few years back, Mr. Roberts spent $100,000 to reshape that stretch of the riverbed into a haven for trout. He makes his living renting cabins to anglers, who come for the plump fish, the Monday night steak fry and, above all, the serenity.

That blissful setting is fairly well destroyed, Mr. Roberts contends, when dozens of rubber rafts come bumping past, crammed with tourists of a less contemplative sort.

“They come bebopping right on through…going over the dam I built for the fish, yelling ‘Whee!’ ” Mr. Roberts says. “I’ve got 60 boats a day doing that. My guests are unhappy.”

Too bad, the rafting community responds. The state constitution declares Colorado’s river water a public resource. Private landowners can reasonably lay claim to the structural frame of a river—the bottom, the banks, perhaps even the boulders. “But that doesn’t mean they own the water,” says Duke Bradford, who owns two commercial rafting companies. “You can’t privatize a river.”

Colorado’s public stream access laws are already among the weakest in the west, and in this instance, we see the same dynamic as found in other access disputes: Wealthy landowners don’t want public access to “their” rivers.

In this case, there’s also shades of a rafters vs anglers dispute – a dynamic I’ve witnessed locally. In our case, a small group of fly fishermen seemingly tried to ignite a fly fishermen/rafters class war over the McCloud River hydro relicensing deal by sowing a lot of FUD (fear, uncertainty & doubt) over the process.

There’s little doubt that stream access laws in the west are coming under attack, and anglers had better pay attention.

Anglers clearly lost the river access fight in Utah (to a bill that was crafted by landowners without the input of anglers).

And there’s a move to make Colorado’s already-restrictive laws even more exclusionary. And yes, we’ve seen regular assaults made on Montana’s wide-open stream access laws.

Buckle up, Undergrounders. As the west gentrifies, we’ll continue to see more of these battles instead of less.

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

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!

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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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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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:

A judge ruled this week that the public has the right to get to rivers from county bridges, but also determined landowners can attach fences to bridges in a split decision on a 4-year-old case out of Madison County.

District Judge Loren Tucker said in a case filed by the nonprofit Public Lands Access Association against Madison County that county road rights of way remain 60 feet wide across rivers. That means the public can use bridges to get to public waters under Montana’s stream access law.

James Kennedy, a Ruby Valley landowner and billionaire heir to a media fortune from Atlanta, Ga., an intervener in the case, and whose fences prompted the lawsuit, had argued that county rights of way narrow down to the actual bridge surface. He contended the land below the bridges was private property and therefore the public was trespassing when it crossed fences built up to a bridge.

Tucker soundly rejected that.

“His implicit argument is that a county road may not be utilized in the vicinity of water,” Tucker said. “That argument is unsupported by authority or by logic.” John Gibson, PLAA president, called the decision a major victory for Montanans.

A report from the Underground’s Special Envoy in Charge of Tiny Flies suggests big trout eating little Tricos in Montana, so cast away, Montana fly fishing public while you’re still legally allowed to.

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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

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.