A HUNTER HEADS OUT EARLY ONE MORNING to visit a favorite duck blind on public property, only to find a new gate across a public road. Two elk hunters drive toward public land in the Missouri River Breaks and run into a locked gate across a road they’d traveled freely for years. Fly fishermen arrive at a bridge over a famous trout stream and find the route to the water barred by No Trespassing signs and electric fences. Welcome to the New West.
All of these events took place in Montana. The wildlife resources beyond those newly erected barriers lie in the public domain. Recreationists had utilized those routes to reach them for decades, and a large body of evidence supported their status as legal rights of way. But there stood the gates and fences, more tangible than any dusty court record. And they would probably remain there indefinitely save for tireless effort by a small, all-volunteer non-profit group called the Public Land and Water Access Association, or PLWA.
Stream Access: One State’s History
In 1977, future members of what would become the Montana Coalition for Stream Access Inc. (and subsequently, after a series of name changes, PLWA) filed suit against a streamside landowner who was harassing recreational floaters on the Dearborn River. After the usual legal delays and maneuvering, the state supreme court, citing the public trust doctrine, ruled in MCSAI v. Curran that “any surface waters capable of use for recreational purposes are available for such use by the public.” The same year, the court addressed another suit against a landowner who planned to string a cable across the Beaverhead to prevent anglers from floating the river. In MCSAI v. Hildreth, the court held that if a stream is navigable for recreational purposes it can be used for such up to the mean high water mark without regard to adjacent ownership of land.
These key cases led to the 1985 passage of Montana’s Stream Access Law, which survived multiple landowner appeals to higher courts. Today that law allows anglers and other recreationists to enjoy some of the country’s best fishing and is crucial to the state’s economically vital outdoor recreation industry. One might think that after these dramatic victories in both the courts and the legislature we could all just relax and go fishing. One would be wrong.
The Bridges of Madison County
There isn’t much to Seyler Lane, and most of us would never know of its existence save for several accidents of geography. The road runs across a bridge over the Ruby River in southwestern Montana’s Madison County. The road and the bridge long enjoyed an established prescriptive easement that provided recreational floaters and anglers access to the water. The private property on either side of the bridge is now part of a trophy ranch owned by James Cox Kennedy, an Atlanta-based media billionaire who has expressed little love for the public.
In 2000, state Attorney General Joseph Mazurek issued an opinion stating that the public may gain access to Montana streams by using a bridge, its right of way and abutments, and that the road easement does not narrow at the bridge. Nonetheless, Kennedy erected fences between the bridge and the water in 2003. When Madison County commissioners refused to remove these impediments, PLWA filed suit in 2004. So began a long, drawn-out legal battle whose complexity and duration threaten to rival the case of Jarndyce and Jarndyce in Charles Dickens’ Bleak House.
In 2007, Kennedy filed a motion formally asking the court to bar all access at Seyler Lane and two other bridges over the Ruby that border his property. The district court ruled in favor of PLWA on the other two bridges but delayed ruling on Seyler Lane on procedural grounds. In 2009, the state legislature passed the Bridge Access Law, which states that the public must be allowed to access streams from public roads and bridges. Nonetheless, in 2012 the district court issued a delayed ruling on Seyler Lane that held against the PLWA position.
On appeal by PLWA, the state Supreme Court overturned the lower court decision and directed it to establish public access to the Ruby at Seyler Lane. During those proceedings, Kennedy’s attorney acknowledged that their goal was to overturn Montana’s 1985 Stream Access Law, which many regard as the most progressive and enlightened in the nation. During argument, Justice Patricia Potter pointed out that the Montana constitution states, “All the waters are the property of the state for the use of the people,” and asked Kennedy’s attorney if he was requesting the court to rule the constitution unconstitutional. He said yes, leaving many observers baffled by the notion of an unconstitutional constitution.
Again, one might think that a decisive Supreme Court ruling would leave the matter settled, and again one would be wrong. Thanks to endless delaying tactics, the remedy the Supreme Court ordered the lower court to provide in the matter of Seyler Lane has yet to materialize. Perhaps this should come as no surprise, given that one side in the dispute has virtually unlimited financial resources at its disposal while the other relies on small donations from the outdoor community to cover its legal costs (and I would note that the Montana-based attorneys representing PLWA have been exceedingly generous with their time and their fees). Maybe someday a definitive resolution will be handed down… but that’s what Dickens’ characters said of Jarndyce and Jarndyce, and it hadn’t happened by the end of the book.
An Eye to the Future
In this piece I have concentrated on PLWA’s work on streams and rivers simply because of BHA’s current (and most welcome) focus on stream access. It is important to appreciate that the group works on behalf of hunters as well as anglers. While its biggest victories to date may have involved stream access, it is currently involved in multiple cases in which outfitters and landowners have impeded access to areas that offer some of the best public land hunting in the country.
While no one at PLWA is interested in personal publicity, a few individuals deserve mention. Tony Schoonen and Jerry Manley played key roles in drafting the 1985 Stream Access Law. John Gibson has provided years of effective leadership. Bernie Lea is a master at researching old court records for documentation of public use. The only reward they have received for their work is the satisfaction of knowing they have served the public interest and made Montana a better place.
PLWA is a small, grassroots organization that runs on the enthusiasm and energy of its volunteers. Most of us recognize that despite important past victories, the fight is just beginning. Land ownership patterns are changing dramatically throughout the West. Attempts to privatize and commercialize public wildlife resources have become commonplace, and attacks on the North American Model and the public trust doctrine are accelerating in intensity. PLWA and its supporters are up against big money, and when vast financial resources face off against the public interest, the default position isn’t pretty.
I’ll close with two specific suggestions. First, contact www.plwa.org and offer whatever help you can. The group’s leadership is aging and would welcome new blood. Second, get involved with your state BHA chapter and advocate for working on stream access. The issues PLWA is tackling are not just Montana issues. They involve all of us. BHA National can provide a tremendous framework of support, but there is no substitute for action at the state level. These are indeed the times that try men’s souls, and no one can assume that someone else is solving our problems for us.
About Don Thomas
After spending his adult life in Montana and Alaska, Don and his wife Lori now winter in Arizona with their bird dogs. Don writes regularly about the outdoors for numerous publications. He is a BHA member.