The Row on the Ruby: State Management of Public Trust Resources, the Right to Exclude, and the Future of Recreational Stream Access in Montana

Article excerpt

I.   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. …