PERC’s Laura Huggins was fortune enough to talk with Bozeman fly fisherman and journalist extraordinaire Miles Nolte. Miles is the author of The Alaska Chronicles: An Unwashed View of Life, Work, and Fly Fishing, editor at Gray's Sporting Journal, and guide at The Bozeman Angler. He asked Laura a few questions about the upcoming Montana Supreme Court case on stream access to streambeds. Below is an amended version of their conversation.
Q: How did PERC get involved with James Kennedy and the Montana Supreme Court case that is going on right now?
A: PERC has been exploring how secure property rights and free markets can work to enhance environmental quality for more than 30 years. In this case, the issue naturally flowed our way.
Q: In this particular case PERC has become the counterpart to Montana Trout Unlimited because they are filing the friend-of-the-court amicus brief on behalf of PWLA. Do you have any comment about being in direct opposition to Trout Unlimited?
A: PERC agrees with Trout Unlimited on many issues but it is true that we split on stream access. In fact, many Trout Unlimited chapters are divided over this issue.
On a positive note, Trout Unlimited’s involvement in increasing funding to allow agencies to purchase more voluntary easements and access to land from willing sellers looks promising. Another productive step forward that PERC and TU might agree on includes a system of supplemental license fees to help support private landowners who make habitat improvements so long as they are willing to allow access rights to anglers who pay the fees.
Q: There is a perception that PERC’s vision is that all streams and rivers be privatized and therefore inaccessible. If that is not accurate, can you describe PERC’s vision for streams in Montana?
A: PERC is not against stream access. You can read PERC’s position statement here. The great conservationist Aldo Leopold sums up PERC’s position nicely: “Conservation will ultimately boil down to rewarding the private landowner who conserves the public interest." I have witnessed several of the types of landowners Leopold extolled. A property-owner on the Ruby River in Montana (not Mr. Kennedy) comes to mind. This gentleman spent thousands of dollars and hours restoring the river running through his property. He fenced the cows away from the river and sought expert advice on how to improve fish habitat. I was lucky enough to fish this stretch for free—an amazing opportunity despite catching a world-record white fish!
I worry that if private property rights are weakened, then the incentive for landowners to make these types of investments will fade. As my colleague Terry Anderson asks, “Would you build a swimming pool in your backyard if you thought it would be open to the neighborhood?”
Many anglers understand the value and potential of private conservation and want to encourage it. Court decisions that ignore private property rights and expand public access without compensation threaten to do the opposite.
Q: One of the primary arguments for public land is that a loss of access to streambeds as public land would cripple a primary economic driver we have for small businesses in terms of guides, outfitters, hospitality, and tourism. If we shut that down will we lose all of that economic influx? What is PERC’s stance on that claim?
A: PERC treasures our Treasure State too. PERC’s president recently wrote in the Billings Gazette, “I’m a native, citizen, homeowner, and sportsman of Montana…, which is precisely why I hold the constitutional protection of private property in the highest regard. Without it, our economic and environmental treasures are in jeopardy.”
Given that nearly 70 percent of all land in Montana is privately owned, the responsibility and stewardship of natural resources falls on private landowners. If it is not private property owners, who is going to protect the banks from erosion, pay to plant willows, and spend the time to create stream complexity?
The fact that we pay taxes to support a wide variety of governmental activities doesn’t mean that our taxes cover the cost of those activities. Government may help on portions of major waterways like the Provo River in Utah, but what about all the smaller streams that could be as productive as sections of the Ruby?
Q: Another claim by advocates of public access to streambeds is that if we cut off access then, over time, the majority of the population will be locked out of the recreation possibilities that these streams offer so as generations pass that legacy of appreciating the resource dies off because people are unable to experience them. Do you see this as a possible problem?
A: I grew up fishing in Utah, Idaho, and Montana with my grandfather. Not only did he teach me the ways of the fish but also how to be a good steward of nature and other important life lessons. I hope someday my children will enjoy a similar experience with their grandkids.
What worries me more is the degredation of fisheries and its impact on the legacy of fishing. PERC studies open-access resources all around the world, and the results are not pretty—the collapse of many marine fisheries come to mind. Closer to home, I am concerned about what is happening on the Mitchell Slough. After the BRPA won its access challenge in the Montana Supreme Court, ditch owners had less of an incentive to manage for fish. They closed the headgate in the winter months, leaving the upper portion with little water and the lower portion silted in, which fish don't like.
I also worry about who is making decisions now for future generations. It is easy to look toward government, but I’m skeptical that politicians, who are elected for short terms and therefore often shortsighted, are good agents for future generations. Future interests actually have more of a voice in markets than in politics.
Q: Would it be fair to categorize PERC’s argument as claiming that it would be preferable to lose all access to recreation if, in doing so, it creates a healthier all around ecosystem?
A: Again, PERC is not against stream access. What we are opposed to is weakening the property rights of riparian land owners at the expense of environmental quality and liberty. The U.S. and state constitutions guarantee the rights of property owners, while various common and statutory laws create some public rights to water and wildlife. Accepting legal rights and bargaining at the coffee table or in the marketplace offer a better path to resource stewardship. Strong property rights can actually expand the pie and create more opportunity for us all.
A large wetlands and stream restoration effort surrounding the headwaters of O’Dell Creek, which flows into the Madison River, offers a good case in point. Although the ranches participating in this project are not open to the general public, the conservation work, which has been funded with both public and private dollars, provides several public benefits. The project has increased flow to the Madison—providing more water for fish, irrigation, recreation, and electricity. It has also helped decrease water temperatures, which enhances fish habitat. Finally, it has transformed miles of creek-side land from dry forage to lush floodplain and in so doing created homes for loads of birds and other species.