Dec 162008

What sort of Huey Lewis lawyer fan would I be if I failed to note the outcome of the recent court case he was involved with? Even the New York Times thought it worthy of a mention.

The Bitterroot Valley of Montana has become home to several wealthy and/or famous ranchers, including the likes of Charles Schwab and Huey Lewis. Their residence has apparently led to an uneasy coexistence between long-time locals and these perceived interlopers, particularly as the new ranchers started throwing up fences around their properties prohibiting the public from traversing them as they previously had. From the ranchers’ perspective such fences were necessary and reasonable, preventing their properties from being vandalized by the trespassing public crossing them to get to Mitchell Slough. From the public’s perspective, however, the fences were illegal barriers preventing their legitimate access to the slough’s fishing. Soon the courts were called upon to decide the question of whether the ranchers could keep the public from the slough, with the Montana Supreme Court just last month finally declaring that they could not.

Like nearly all court cases, by the time the issue reached the Montana Supreme Court it was a tangle of all sorts of procedural, factual, and legal disputes. But they essentially all boiled down to laying on the Supreme Court’s doorstep the question of whether, under Montana state law, Mitchell Slough was but a man-made irrigation ditch (as the ranchers claimed) or natural flowing stream (as the fishermen argued), and therefore whether it was required to be accessible to the public. Overturning the earlier decisions of the lower courts and public agencies, last month the Supreme Court determined it was, after all, a natural stream the public was entitled to access.

Two laws primarily bore on the Supreme Court’s analysis, the “310 law” and the Stream Access Law (SAL). The 54-page decision walks through each one in turn, but ultimately both share a similar factual record and analysis. Where the lower courts and agencies had gone wrong, the Supreme Court ruled, was in interpreting that man’s interference with the course of Mitchell Slough now somehow precluded a finding of it being a natural stream subject to public access laws.

Relying on the proposition that something “natural” is something that exists in a state of nature and is not artificial, because so much man-made interference has shaped the flow of the Mitchell Slough, the lower courts thought it could not possibly be viewed as a natural stream anymore. Indeed, the ranchers argued that but for their interference in restoring Mitchell Slough it would today be but a simple irrigation ditch and not the vibrant fishery the public now wanted access to. They warned that should Mitchell Slough be deemed publicly accessible as a result of their efforts, no future property owner would ever undertake rehabilitating any other similar water bodies, since doing so would just expose their properties to unwanted public access.

Whether that warning is prophetic has yet to be seen. But the Court’s analysis suggests that few streams will ever escape designation as natural, regardless of how much rehabilitation they may receive. As long as there are facts to support the historic existence of the riparian channel, it will be deemed a natural stream. Rejecting the lower courts’ definition of “natural” as being inconsistent with Montana’s legal principles, the Supreme Court reasoned that if man-made interference were to disqualify a stream as being “natural,” it would lead to the absurd result of nearly every body of water being ruled unnatural, since nearly every body of water has been meddled with in some way. On the contrary, the 310 law at its inception had even contemplated that the waterways it purported to protect had already been subject to man-made interference, and furthermore, the Court went on to reason, under the SAL, “man-improved” could not be construed to be the same as “man-made.” Thus improvement would not be a barrier to finding that a stream was natural under either law.
So after rejecting the lower courts’ interpretation of Montana law regarding the naturalness of streams, the Court then considered on its own (rather than remanding to the lower court for consideration) whether the facts surrounding the history and character of Mitchell Slough warranted a finding that it was itself a natural, flowing stream. Ultimately, and perhaps at this point unsurprisingly, the Court found that it was. It was then left to balance the rights of property owners (something protected by the Montana Constitution) with the rights of the public (also constitutionally protected) in deciding whether the public would be entitled access to the slough. But those issues had largely been dealt with in an earlier, unconnected case, Galt v. State, which had struck down some provisions of the SAL but otherwise left the law intact to the extent that it limited public access to natural waterways in their waters themselves and their banks up to their ordinary high-water marks. Unfettered public access to private property therefore remains just as prohibited as it ever was. But no longer are the Mitchell Slough fish.

Edit 12/20: The Montana Supreme Court unhelpfully does not appear to keep its decisions at static URLs, and further pollutes its site with frames and pop-ups, but the opinion Bitterroot Protection v. Dept. FWP. can be searched for and downloaded from this site, along with parties’ briefs.

 Posted by at 5:38 pm

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