The row on the Ruby: state management of public trust resources, the right to exclude, and the future of recreational stream access in Montana.

• Author: Stauffer, Sarah K.
• Position: Western Instream Flows: Fifty Years of Progress and Setbacks

1. INTRODUCTION II. BACKGROUND A. Fishing As Way of Life and Means to Prosperity B. Illinois Central and the Emergence of the Public Trust Doctrine C. The Legacy of Illinois Central D. The Public Trust Doctrine and the Montana Constitution E. Mono Lake and the State's Duty Under the Public Trust III. THE PROBLEM OF ACCESS ACROSS UPLAND PARCELS A. Access to Trust Resources and State-Specific Solutions B. Matthews and the State's Duty to Provide Reasonable Access IV. MONTANA'S DUTY TO SECURE AND SAFEGUARD RECREATIONAL ACCESS A. The Demands of the Montana Constitution B. The Public Trust Doctrine and Takings C. The Public Trust Doctrine and Habitat Destruction V. CONCLUSION I. INTRODUCTION

   On July 17, 2005, approximately two hundred people descended on southwest Montana's Ruby River (1) with kayaks, rafts, and inner tubes to take part in Stream Access Float Day. (2) Sportsmen and access groups organized the event to call attention to escalating tensions between riparian landowners and access advocates over access to waters held in trust by the state for its citizens. (3) Organizers chose the Ruby because of a high-profile dispute between riparian landowners and anglers over barbed-wire and electric fences that some landowners have attached to county bridges where anglers typically access the stream. Landowners claim these fences are to keep livestock in; (4) anglers, however, believe landowners erected the fences to keep the public out. (5)

   Although the controversy over stream access in Montana is not new, (6) the current dispute on the Ruby is different because it hinges not on the public's right to use the stream but on the public's right to access the stream. In 1985, the Montana legislature passed the Montana Stream Access Law, codifying the public's constitutional right to use "all surface waters capable of recreational use" irrespective of streambed ownership. (7) The legislature passed the law on the heels of two 1984 Montana Supreme Court decisions which recognized a public right to use waters capable of recreational use based on the public trust doctrine as implied in the Montana constitution. (8) In the first decision, Montana Coalition for Stream Access v. Curran (Curran), (9) the court looked to the state constitution, (10) which provides that surface waters "are the property of the state for the use of its people," (11) and reasoned that the landowner contesting public access did not have the right to exclude people from using the river because, under federal law, title to the bed and banks of navigable waters were transferred to the state at statehood and "burdened by [the] public trust." (12) The court went beyond federal law, however, holding that navigability for recreational use is a matter of state law. (13) The Curran court opined that public recreational use of surface waters is "limited only by the susceptibility of the waters for that purpose." (14) Thus, waters that were not navigable for title under the federal navigability test were nonetheless burdened by the public trust under state law. (15) In Montana Coalition for Stream Access v. Hildreth, (16) the second decision, the court noted that the Montana constitution "clearly provides that the State owns the waters for the benefit of its people," and affirmed the public right to use all waters susceptible to recreational use. (17)

   After the Montana legislature passed the Stream Access Law in 1985, the Montana Supreme Court, in Gait v. Department of Fish, Wildlife, & Parks, (18) rejected a challenge to the constitutionality of the law because "under the public trust doctrine as derived from the Montana constitution the public has a right to use any surface waters capable of use for recreational purposes." (19) The court's holding in Galt was significant because the court concluded that the public trust doctrine was implied in the Montana constitution. (20)

   Strengthened by the Montana Supreme Court's affirmation in Galt, the Montana Stream Access Law has become a defining feature in a state that places considerable value on its world-class trout streams and pristine landscapes, (21) The law, however, does not confer access rights to trust resources, (22) and some maintain that the state must work to resolve the access disputes on the Ruby and elsewhere before tensions between landowners and anglers escalate further. (23) Regrettably, a solution to the tenuous state of recreational stream access in Montana does not flow from the Stream Access Law itself. While anglers may, at present, use traditional access points at county bridge right-of-ways to reach the river, (24) legislators and landowners alike are unsure whether the Montana constitution places an affirmative duty on the state to provide reasonable access to trust resources, what sort of accommodations landowners must make to provide for such access, and, if landowners are required to make feasible accommodations, whether the state is obligated to provide compensation to them.

   This Comment evaluates the current state of recreational stream access in Montana by looking at the dispute between riparian landowners and anglers over access on the Ruby River and elsewhere in Montana. (25) Part II examines the significance of the access problem in Montana, traces the evolution of the public trust doctrine in the United States, evaluates the doctrine as implied in the Montana constitution, and assesses the application of the public trust doctrine, as interpreted by the California Supreme Court in the Mono Lake case, National Audubon Society v. Superior Court of Alpine County (Mono Lake). (26) Part HI looks at other states' interpretations of access rights to trust resources and considers the state's duty to both provide for and protect access to trust resources in light of the New Jersey beach case, Matthews v. Bay Head Improvement Ass'n. (27) Part IV argues that the Montana constitution requires the state to provide for reasonable access to trust resources and imposes a duty on riparian landowners to make feasible accommodations to accomplish that result. In addition, Part IV notes that in requiring riparian landowners to make feasible accommodations for access, the state is not obligated to provide compensation because the public mast is a background principle of Montana property law. The Comment concludes that by providing for and protecting access to trust resources, as required by the surface water provision of the Montana constitution, Montana will maintain a way of life and protect an important part of the Montana economy for future generations.

2. BACKGROUND

   Recreational stream access is a cultural and economic necessity in Montana. Thus, the state must work expeditiously to resolve the conflicts between riparian landowners and access advocates. This "work" begins with an overview of the public trust doctrine, and a discussion of other states' reliance on the doctrine in response to similar access disputes.

   1. Fishing As a Way of Life and Means to Prosperity

      Norman Maclean began his celebrated novel, A River Runs Through It, (28) writing,. "[I]n our family, there was no clear line between religion and fly fishing." Maclean understood Montanans: when it comes to rivers, there is no lack of "religious" zeal. This reverence for both the streams and the institution of fishing itself is commonplace for many Montanans and is one reason access advocates are opposed to those riparian landowners who would dare to come between Montanans and "their" streams. (29)

      But fly fishing is more than a way of life in Montana. Fly fishing, specifically, and outdoor recreation, generally, have become increasingly important to the economic health of the state because the agriculture, timber, and mining industries have fallen on hard times. (30) Although communities across the state continue to feel the effects of job losses in extractive industries (31) the dramatic expansion of eco-tourism in Montana has helped to ease the impact of job loss in the traditional sectors of the economy. (32) A 2001 study conducted by the Montana Wildlife Foundation, for example, concluded that "fishing and wildlife recreation contribute at least $1.7 billion to Montana's economy each year." (33) Regarding Montana's transforming economy, one historian aptly noted, "The Treasure State has become Big Sky Country." (34) Thus, stream access is important not only to those Montanans who wish to spend their vacation days on the state's trout streams, but to all Montanans, as the state becomes increasingly dependent on dollars generated from eco-tourism.

      As a result of a population influx in the 1990s (35) and the increasing popularity of Montana's trout streams, Montanans, visitors, riparian landowners, and anglers frequently compete for use of and access to the same scarce resources. (36) Times have changed. In the last thirty years, many Montana landowners have become less willing to allow locals access to the river through their property. Instead of allowing local anglers to pass freely, some riparian landowners market the waters to wealthy, out-of-state visitors. For example, the Ruby Springs Lodge boasts ten miles of "private water" (37) along the Ruby, even though the Ruby is susceptible to "recreational use," (38) and therefore held in trust for the public under the public trust doctrine as implied in the Montana constitution. (39)

      When Montana's dependence on eco-tourism is placed in the context of current controversies on the Ruby and elsewhere in Montana, the need to resolve the dispute over stream access seems evident. In fact, the tension between wealthy riparian landowners trying to keep people from accessing the streams and locals trying to gain access to those same streams has escalated to the point that some commentators think the controversy amounts to a "class war." (40) While all involved may not agree that the controversy over access is a class conflict, most individuals familiar with the controversy...