Guest Commentary
“Peaceful Enjoyment of Your Property” Except in Montana
By Terry L. Anderson, Guest Writer, 11-20-08
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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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Comments
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.
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.
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.
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.
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 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.