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Seen, unseen costs of stream accessBy Reed Watson
Bastiat wrote “What Is Seen and What Is Not Seen” to demonstrate how government-created jobs help some industries but hurt others. Such policies, Bastiat wrote, have invisible costs that often outweigh the visible benefits. Unfortunately, the same principle applies to stream access in Montana. The invisible costs generated by Montana’s ever-expanding Stream Access Law vastly outweigh the visible benefits. Nowhere better is this demonstrated than on the Mitchell Slough. In a 2008 Montana Supreme Court opinion, a small number of access advocates “won” public access to the Mitchell Slough, an irrigation ditch turned trout stream by private landowners. Newspapers and blogs described the case as a victory for anglers everywhere. The “public” had been granted access to a water body previously closed by wealthy out-of-state interests. These were the “seen” effects of the Mitchell Slough decision, but the Supreme Courts decision generated many “unseen” consequences as well. For starters, landowners along the Mitchell lost the privacy of their own backyards. Though some of these landowners are wealthy non-residents, the majority are longtime Montana ranchers and farmers. Given the significant loss in property values, the Supreme Court’s decision favoring public access over private property rights likely hurt the resident landowners worse than the nonresidents. Resulting from this loss of privacy, property rights and property values, the Mitchell landowners stopped managing the ditch as a trout fishery. Previous investments in habitat construction, costing approximately $1 million per mile, have been abandoned. With the Mitchell once again managed exclusively as an irrigation ditch, the most obvious victims are the trout. They no longer have access to the low-temperature, low-traffic waters that made the Mitchell ideal for spawning. Ironically, the other invisible casualty of the Mitchell Slough decision is the quality of public fishing opportunities in the Bitterroot Valley. As sure as the sunrise, the loss of spawning habitat on the Mitchell will drive down trout numbers in the Bitterroot’s main channel. So, even though the public has access to more trout waters, fewer trout will occupy those waters than before when the Mitchell was private. As if the loss in privacy, property values and public fishing opportunities were not enough to discourage other private land conservationists, the Mitchell landowners were recently ordered to pay $350,000 in BRPA’s attorney’s fees. The message to private landowners is clear: environmental stewardship will cost you. When landowners stop investing in environmental stewardship, Montanans will understand the unseen costs of stream access. Bastiat’s broken window metaphor demonstrates how policies aimed at benefiting a small group of people impose unforeseen and often invisible costs on society as a whole. Such is the case with the Mitchell Slough. When the Bitterroot River Protective Association won public fishing access to the Mitchell, what was seen was the opening of prime fishing habitat to the public. What was unseen was the disincentive for private habitat conservation created by the Montana Supreme Court’s decision. Reed Watson is a research fellow at the Property and Environment Research Center in Bozeman, and an attorney. |
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In one of the classic essays in economics, Frederic Bastiat describes how breaking a windowpane generates two types of effects: the “seen” and the “unseen.” The seen effect is the window’s repair. A repairman replaces the window and receives payment for this service. Thus, broken windows make window repairmen better off. The unseen effect, however, is the lost opportunities for other businesses. The shoe maker, publisher and grocer are worse off – not better – because the money spent repairing the window could have gone to them but did not.
Comments
Jack Tuholske - 16 April 2010 09:36- Mitchell Slough
- Dear Reed:
Thank you for printing my response. I appreciate the informed discussion and hope that it reaches a wider audience than the two of us.
If you are interested in objective evidence regarding the natural character of Mitchell Slough I will address the facts. First, your reference to Mitchell Ditch fails to note that the term Mitchell Ditch was coined by the landowners. The term appears nowhere in the historical record. The Mitchell Ditch Company was not formed until the mid 1990s and it was spearheaded by Californian Ken Siebel. It is an odd name for a ditch company as it owns no water and does not assist with irrigation. Second, the 1872 GLO map intersects repeatedly with the current location of Mitchell Slough; the fact that it is not identical confirms what every hydrogeologist knows - streams move over time, especially when humans are assisting. In terms of the historical record, explain why the early Ravalli County land records show Mitchell Slough as a natural water body and no ditch in that location. Explain why all of the nineteenth century man-made diversion (Etna, Union and Webfoot ditches) claim to divert water from a branch of the Bitterroot River. Those ditches are in operation today and claim their water from Mitchell Slough. Explain why Ken Siebel, in his tax-savings conservation easement listed Mitchell Slough as a spring creek on his property, if it really was a ditch. Explainwhy the 1957 Water Resources Survey, produced by the State Engineer, considered to be the "Irrigators Bible" showed Mitchell Slough as a natural water body and did not show a ditch in that location. I await your answers.
I agree that public recreation rights exist on only natural water bodies. The state (the people) does "own" or acts as trustee for all water in trust within the state.
Finally, the attorney fee award has nothing to do with my analysis. My analysis is a matter of public record, submitted years before the Court awarded fees, while I was working on a largely pro bono basis. The only analysis in my view that was influenced by money in this case was the analysis of some of the landowners' experts (not all, some are reputable consultants) who were paid exorbitant sums to find Mitchell Slough to be a ditch. And while we are on the subject of money, how about a response to my question of how much the landowners paid PERC in donations for the video and for other contributions? Fair is fair, don't you agree?
Reed Watson - 24 March 2010 09:51- Mitchell Slough
- Jack,
Thank you for your comment. It IS important that PERC print opposing viewpoints on such an important issue as stream access. In the case of the Mitchell Ditch, however, I’m afraid the highest value in printing your viewpoint is in the demonstration of its inaccuracy.
First of all, evidence is evidence, whether it was gathered in preparation for litigation or not. Trial courts consider the accuracy and persuasiveness of evidence before ruling on issues of fact. In this case, both the Bitterroot Conservation District and Judge Mizner, the trial court judge, heard the evidence and ruled that it cut against a finding that the Mitchell is a “natural” stream.
Nonetheless, if the preparation of evidence is important to you, consider the publicly available, pre-litigation 1872 GLO map which shows that the East Fork of the Saint Mary’s Fork of the Bitterroot River (the purportedly “original” Mitchell). The course of that abandoned waterway clearly does not track the Mitchell’s current course, particularly for the Mitchell’s upper third.
This brings me to my second point. Though you are correct that Montana Supreme Court opinions constitute the law in this state, the Montana Supreme Court should give deference to lower courts’ findings of fact. The Montana Supreme Court failed to do that. Instead, it characterized as A MATTER OF LAW the question of whether a particular watercourse, in a particular location, with particular characteristics was “natural.” This allowed the Montana Supreme Court to ignore the evidence entirely.
Finally, and perhaps most importantly, you are wrong that the Montana Constitution “gives all citizens ownership of water and the right to recreate upon it.” The public’s recreation rights extend only to “natural” streams. Your mis-characterization of the public’s recreational rights – and the disincentive that mis-characterization creates for private landowners to invest in environmental stewardship – is what motivates PERC to comment on the issue, not any contribution by Mitchell Slough litigants. We’ve not asked for or received any funds pertaining to this issue.
Might the $350, 000 in BRPA attorney’s fees be influencing your analysis of the issue?
Jack Tuholske - 24 March 2010 07:39- Mitchell Slough
- Reed - your piece is fraught with mis-statements. Mitchell Slough is not an irrigation ditch. Desipte millions of dollars spent by wealthy out of state landowners to privatize the water body, the Montana Supreme Court has ruled that it is a natural water body. Every piece of public evidence (i.e. evidence not prepared for litigation) listed Mitchell Slough as a branch of the Bitterroot River. Assuming that PERC believes in the Constitution and the rule of law, then PERC should quit spreading the mistruth that Mitchell Slough is an irrigation ditch. The Montana Supreme Court represents the law of the land in this state. And the Constitution gives all citizens ownership of water and the right to recreate upon it. The efforts of the landowners to improve a fishery, while most appreciated, do not give them the right to convert public property to private ownership.
I hope you have the academic integrity to print an opposing viewpoint.
Jack Tuholske, attorney for BRPA
PS PERC should disclose the financial contributions, if any, made by the Mitchell Slough litigants to assure that PERC's scholarship is independent.
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