Guest Commentary
“Peaceful Enjoyment of Your Property” Except in Montana
By Guest Writer, 11-20-08
The Montana Supreme Court finally handed down its long awaited ruling on the so-called “Mitchell Slough case.” Brought by the Bitterroot River Protective Association (BRPA), the appeal challenged the right of “rich out-of-state landowners” to limit public access to the Mitchell Slough. The plaintiffs argued that the Mitchell is a “natural, perennial-flowing stream” and as such is open to access by the public under Montana’s Stream Access Law (SAL). The state supreme court bought BRPA’s argument and reversed a lower court ruling denying public access.
The fact that the lower court found the Mitchell to be man-made while the supreme court found the opposite illustrates the slippery nature of the definition. Like so many legal battles, however, the technical legal sparring in the Mitchell case missed two truly important implications of the decision.
The first is the implication of this and previous decisions for the sanctity of private property. The Montana Supreme Court’s decision asserts that “the landowners are entitled to every expectation of peaceful enjoyment of their property and the exclusive use thereof, excepting only the public’s right to recreate as provided by the SAL on the water and on the banks of the Mitchell ‘up to the ordinary high-water mark’” (emphasis added). Once the court found the Mitchell was a natural stream, it had no choice but to follow precedent and allow the exception to peaceful enjoyment.
But think about the word “excepting” in a broader context. Suppose the court found that you, as a homeowner, “are entitled to every expectation of peaceful enjoyment of your home and exclusive use thereof, excepting . . . .” What are the limits on excepting?
In the famous case of Kelo v. City of New London (2005), the U.S. Supreme Court allowed the taking of Suzette Kelo’s home for a private development, albeit one that has never been built. Might the court have said, “peaceful enjoyment and exclusive use thereof, excepting when the city wants to take your house for a private development” using the guise that the private development is in the public interest?
Lest you think such examples are not a threat to your property rights, consider what Montana Governor Schweitzer said when he urged the appeal of the lower court decision in the Mitchell case. In his words, “If you want to buy a big ranch and you want to have a river and you want privacy, don’t buy in Montana.” So much for peaceful enjoyment of your property.
The second implication of the Mitchell decision should be of concern to all sportsmen and women, namely what does this do to the incentive for private landowners to be good resource stewards. In finding that the Mitchell Slough was not “man made,” the state supreme court said it was “man improved.” Indeed, the court’s decision reads, “the residents [note the use of the word residents rather than landowners] have reconstructed the bed and banks of the watercourse, narrowed its channel, increased water velocities, and improved aesthetics and the fish and wildlife habitats.” Before the improvements paid for by the landowners, there were no fish in the slough except when floods caused water to flow through it. It was the improvements recognized by the court that have made the slough a productive fishery. This should make the landowners prime candidates for a stewardship award from an association that proclaims to be a “river protective association.”
Whether the habitat improvements were done by “rich out-of-staters” or fourth generation Montana natives does not matter. Conditioning the right to peaceful enjoyment and exclusive use by allowing public access can only do one thing—reduce the incentive for private stewardship. I doubt the landowners along the Mitchell will destroy the habitat they created, but we have sent a clear message to any landowner considering such improvements. DON’T.
Montana’s fish and wildlife will weather yet another storm in the access battle because we are blessed with landowners who have an ethical commitment to wildlife conservation. As humans fight over who gets what, however, they should not be surprised if the fish and wildlife they profess to want to protect find a little less habitat, natural or man-made.
Terry L. Anderson is executive director of PERC - the Property and Environment Research Center in Bozeman and a senior fellow at the Hoover Institution, Stanford University.
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[End of article]What Terry says here matters. Why bother with stream improvements that cost you money if the minute you do so, you'll be sued by those who think they have a right to the fish for free? If I had a barren reach in front of my ground, what would be my reward for making it productive? A wall of fishing vests between me and the water? Seems so.
And what about the benefits to the "ecosystem" as a result of fish that would otherwise not exist simply because the habitat in the slough is nonexistent as well. I find it ironic that "environmentalists" seem to have led this charge. Isn't the point to have a productive fishery for its own sake?
Bottom line...if you want something for free, you'll always get less than you want.
IT'S REVENGE OF THE NERDS! Well, no. Actually it's the revenge of COMEDY OF THE COMMONS! (more commonly referred to as the tragedy of the commons). And, Terry, how are things at PUKE, OOPSIE!, I mean PERC? You guys still think heapleach goldmining is a good idea? I remember very well when one of your bozos said that broccli had about the same amount of arsenic as gold mining! You guys really ARE funny people. Oh, and I STILL remember your editorial in the Bozo Chronic in which one of your "writers" argued that since Japan had 695 people per square mile, Montana could easily support that number too! I mean, you folks at PUKE really can't be taken seriously. BTW, why don't you list your DONORS? It really is a quite interesting list. But this whole idea of Tragedy of the Commons is a friggin' JOKE! Give it up. Look for something new to spout. You see, Ter, we here in Montana kinda LIKE our public lands! Where you from anyway? NY city???? Just wonderin'.
Comment By elcid, 11-21-08I'd like to see some actual data on the number of "improvements" that are actually beneficial to wildlife and outdoorsmen. How about that fella on the Clark Fork near Gold Creek that decided a diversion dam would be a nice improvement for his livestock? How is that effecting Brown Trout runs?
Comment By jedediah Redman, 11-21-08This argument will never be settled so long as the notion exists that private property can be truly private. There are always going to have to be exceptions to what can be done by one man who is willing to disregard the rights of everybody else...
Comment By Andrew Karlsen, 11-21-08Montana law has strong and well established stream access laws. The controversy over Mitchell Slough centered around whether or not it is a natural stream or it is a irrigation ditch. Terry seems to think that if landowners have a 'nice' stream on their property they ought to be able to ignore established law and exclude the public from the waterway they have legal rights to.
Terry rambles pointlessly on to cite the Kelo case which is a eminent domain case from Connecticut that has no legal nexus to stream access in Montana. He does this in a feeble attempt to make a point about private property takings. Many feel that the city of New London over stepped their rights to exercise eminent domain (me included).
The bottom line is that Montana citizens have legal access to streams up to the ordinary high watermark. Persons who do a responsible about of research before buying property know these things. To make a big stink about stream access after buying your property marks you as an uninformed person who hired a incompetent real estate agent.
Terry seems to think access limits the incentive for private stewardship which I think is suspect; what stream access does do is greatly increase public stewardship of this important natural resource.
"Peaceful enjoyment of your property" - Who's property is the question. Just because you buy a piece of land near a river or public land or public road, doesn't mean you own the river, public land or public road. Let's respect each others rights here.
Comment By Hal Herring, 11-21-08I can't think of a comment. Wait. Didn't we just experiment with these ideas for the past eight years, and find out that, just as we had long suspected, the corporate tycoons would rush in to fill the vaccuum of power created by legitimate, but unrealistic libertarian property rights ideals? And the wealthy would get real wild with the freedom they got from selling all the rest of us poor schmoes that libertarian snake oil, and then they take away all the money, and double up on polluting, whack the endangered species, and build mega mansions and tell the rest of the Americans to bugger off, and get suited up in desert camo to go protect Exxon's stuff way over yonder? No time for fishing for you
working stiffs! If you were smart, you'd have been part of the plundering of America, instead of just going to work everyday like the dang fools that you are! Now Scoot. Get off my river! Or I'll call the law!
HMMMMM, Kelo, Kelo, Kelo. Whenever I hear that, now, I know somebody is trying to scare me into believing some new line of hooey. Buzz words. Empty husks of real ideas, ready to be filled to bursting with fat cat agenda.
My favorite theme from the PUKE (PERC) crowd is the Comedy of the Tragedy of the Commons. In case you missed it, it's a hilarious notion that some fatassed rich bastard will take care of public land better than the public! The whole idea being that we in the public are just too damn many people! In other words, there are SO many of us, that we'll RUIN the land! SO, in steps rich fatassed bastard! There's only one of him. So he'll take REAL good care of OUR public land FOR us! Did I miss anything, Ter? Say, where the hell you from again? And that list of donors? I'm still waiting. Last time I saw it it contained LOTS of rich fatassed bastards! Prove me wrong, Ter.
Comment By rkrugg, 11-21-08Um, if your main argument consists of calling the other side names, maybe you don't have such a strong case. Just sayin'.
Comment By carwaterguide.blogspot.com, 11-21-08I'm excitedly waiting all the changes in technology and availability of vehicles in the near future!!!
Comment By Larry Kralj, Environmental Rangers!, 11-22-08Dear Rslug, you seem to be suggesting that PUKE (PERC) is an organization worthy of respect. Why? Methinks that you're clueless. Or, maybe it's rich fatassed outtastaters who attempt to close off streams deserve respect? Why? Don't just hit and run, little fella. Write or get off the pot. Show us your brains.
Comment By Alex Russell, 11-22-08Who is this guy Anderson? I'm a truck driver and I can write a more reasoned, rational arguement than this clown. I thought The Hoover Institute was supposed to be some think tank or something. If they hire guys like this, I can see there is no thinking needed to work there. How hard is it to recyle a bunch of tired, irrelevant Reagan-era slogans? This goofball has no idea how silly he sounds, except to himself probably. I can't believe he still thinks this kind of garbage still has any audience.
Comment By flounder, 11-23-08The Hoover Institute gets their funding from anonymous billionaire donors, of course the stooges that milk the wingnut welfare at Hoover are going to make obfuscatory arguments imploring that rich people should be able to wall off public property if it happens to intersect their own estates.
Because you see, waterways in Montana are public property. Hey Mr. wingnut welfare, you and your clown car buddies always shriek about the free market. Here is some free market advice for you: if you don't like the state law in Montana, there are 49 other states and a couple hundred other countries where you can try your luck.
Go buy a whole river in Russia if you like, but please quit the hypocritical whining.
wow Larry. Methinks rkrugg's point is that your YELLING and name calling do nothing more than lessen the credibility of any point, whether it is agreed with or not, whether rich or poor, fat or thin-assed. A second-grade in-your-face post typically gets no more than grade-school cred. Uh-oh, I better duck now...
Comment By Mike, 11-26-08Terry: Sorry pal, you're not fooling anyone. At least not anyone with a brain.
First of all, the slippery slope theory is a fallacy, first codified way back in about about 400 BC by the Greeks. A fallacy, in case you've been operating so long under under its mind-numbing influence that you've forgotten what it looks like, is an error in logical thinking. There is no logical, necessary connection between stream access and governmental seizure. To publicly propose such is nothing short of Sophistry.
Secondly, why should public access dissuade someone from making improvements? Those of us who live in town don't own our boulevards, but we still mow the grass, plant trees, and put out flowers in the summertime. Sure, pedestrians might come by and walk on that grass or pick those flowers, but what do we care? We're part of a community and that means we accept the involvement of others in our lives. That's what Schweitzer was getting at -- if you're a possessive, self-serving misanthrope who hates other people coming near his property, this is not the place for you.
I'm no Democrat, but I gotta say: Well said, Guvna.
the Montana Supreme Court has addressed the issue of public resources adjacent ahd on private property in concluding several cases in favor of public ownership. Their basic premise is that
the fact that there are elk and other wildlife on private land is a "Condition of Acqusition". Or in other words: The individual who aquires land in Montana must be aware thar there will be wildlife on that land and there could well be damage from those animals to for which there is no recourse. This same logic can be applied to a public stream running through the property. "You knew when you acquired the land that this was the case and that the law allows the public to recreate on the land beneath this stream up to the mean high water mark. To complain about the public exercising their rights is comparable to complaining that the wind blows and the river floods.
The conservation argument is a strawman. These people 'improved' the slough in contravention of the 310 permit laws. They did so on purpose to evidence private control in anticipation of this lawsuit. There are plenty of legal public-private conservation partnerships all over MT. FWP and the NRCS both stand ready to work with private individuals to do just what Siebel did to the Slough illegally. Doing that presents a problem for Mr Siebel though, he would have to admit the state's jurisdiction over the slough, which didnt jive with the Stockfarm's business plan of providing world class exclusive angling. If conservation was soooo important to Siebel and crew, why didnt he consider a private-public partnership that included a state managed and public approved plan that would best serve the interests of conservation and still allow access? Why? To put it bluntly, because he's been behaving like a selfish jerk for quite a long time now, just like Kennedy on the Ruby. He thought he could bring his money and power to bear on the Bitterroot and both the state and citizens would bend over and take it. Ken Siebel is a real dissappointment compared to his cousin Tom, who thru the Montana Meth Project, has done so much good for Montana. Funny thing is, if he didnt act like such a jerk about all this, he would be considered a conservation hero by all. Its a shame.
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