Stream access is a confusing and controversial topic. For starters, stream access is an issue of state law, and the laws vary substantially from state to state. What counts as trespassing in Colorado might be perfectly legal in Wyoming.
Adding to the confusion is the fact that several states’ stream access laws have changed recently. The Utah Supreme Court, for example, ruled in 2008 that public water flowing over private land created an easement allowing anglers and other recreationists to walk on the privately owned streambeds. Just two years later, the Utah legislature reversed course and required recreationist to obtain landowner permission.
Separate from the confusion, stream access has become increasingly controversial. Most media outlets portray it as a battle between rich and poor . . . resident versus non-resident . . . good versus evil. These characterizations are inaccurate, divisive, and counter-productive.
To think diminishing the property rights of riparian owners will only “shaft the mega-rich” is absurd. Yes, Huey Lewis owns property along the Mitchell Slough, but so do several sixth-generation Montana irrigators, and after losing the privacy of their own back yards none of them are managing the slough to maximize its fishery potential.
PERC scholars have waded into the stream access debate to provide a free market environmentalist’s perspective. The points we emphasize are:
- Secure property rights promote good stewardship. When landowners reap the benefits of stream restoration, they are more likely to invest in restoration projects. By contrast, if restoration precipitates a loss of privacy or property values, private restoration projects will be few and far between. It is short-sighted and regrettable that the plaintiffs in Montana’s recent stream access cases have mainly sought access to waterways restored by private landowners.
- Secure property rights benefit the public. As explained in this amicus brief, fish and wildlife can freely migrate off private lands, so the provision of habitat on private lands generates a public good that costs the public nothing. Landowners who improve habitat and thereby increase the flow of environmental benefits off their land are not hoarding a public resource; they are enhancing it.
- The protection of property rights applies equally. The constitutional protections of property rights, both at the federal and state levels, apply regardless of wealth or residency. This is a fundamental principle upon which our country and economy are founded.
- The public trust doctrine provides no justification for public access across private stream beds. Although water is a state-owned resource, the beds and banks of most non-navigable streams are privately owned. There is no historical evidence to support the claim that non-tidal streambeds were ever public trust resources. That most of the beds at issue in stream access cases are taxed as private property suggest this has not changed. It is undisputed that the public has access to navigable waterways.