Volume 40, No.2, Winter 2021

Whose River Runs Through It?

How stream access laws affect recreation and conservation

This special edition of PERC Reports uses the hit television show “Yellowstone’s” portrayals of the Rocky Mountain West to examine real-world western issues. Explore the full issue here

Beth Dutton, daughter of Yellowstone Dutton Ranch patriarch John Dutton, skids to a stop on a bridge over an unnamed river on her family’s land in Season 3 of “Yellowstone” (Episode 1). She interrupts her telephone conversation to declare, “I gotta go, some asshole is standing in our river.” She leaps from the car in her low-cut dress and high heels, yelling to a fisherman over the sound of rushing water: “You’re trespassing! Get out of our f—ing river!” 

“I can’t,” responds the unperturbed, nattily attired Roarke Morris, “that’d be trespassing.” 

 

Although by nature Beth is prone to four-letter-word outbursts, we can cut her some slack in light of the many threats faced by the Dutton Ranch, including, as we will come to learn, from Roarke Morris. The Dutton family is in what will surely turn out to be a losing battle against unremitting change. Just like the wildlife and Native Americans that once had exclusive dominion over what is now their ranch, the Duttons will be overwhelmed by the forces that have, in the real world, created high-end ski resorts such as Big Sky and the Yellowstone Club just over the mountains and spurred impending developments in the nearby Crazy Mountains. Had Beth Dutton confronted the plainly-not-a-local Roarke Morris four decades ago, she could well have believed he was fishing in her river. But in 2020 it was all bravado.

Fishing to the Limit

Every summer, a few more than four decades ago, my mother and I had a friendly competition to see who could catch more fish in Sourdough Creek across the road from our house south of Bozeman. The daily limit was 10, and nothing under six inches. We often caught our limit. The idea that you would catch and then release a legal-sized trout was unimaginable. We ate a lot of trout during those bucolic summers of the 1950s.

It also was unimaginable that anyone would preclude my mother and me from fishing in Sourdough Creek, although we well understood that permission was required to access the creek across private property—well, across obviously private property. The steep strip of land between Sourdough Road and the creek seemed to belong to no one, so permission was seldom sought. We did have what I believed was exclusive permission to fish on a farm about a half mile downstream owned by a work colleague of my father’s. The fishing there was particularly good.

What I knew about property rights in those days was really about manners and respect. When you encountered a “No Trespassing” sign, you didn’t enter. Although you might anticipate better fishing on the other side of the fence, you didn’t resent the owner for posting the land.

I suppose I should confess that we fished with worms, or, rather, nightcrawlers, we plucked from my mother’s garden after a good rain. With all due respect to Norman Maclean and the many fly-fishing purists who despair at the sight of a worm and worship at the altar of A River Runs Through It, I still fish with worms. When the fish wins, it comes away with a far better meal than a hand-tied fly has to offer.

In my mind there was no difference between Sourdough Creek and the Gallatin and Yellowstone Rivers, except for the many more snags one encounters on a small stream. Every river, stream, and lake was there for our fishing pleasure, subject, of course, to having permission from obvious property owners. My sister’s boyfriend was the son of the owners of Karst Ranch, a family connection that yielded permission (and especially good fishing) on that stretch of the Gallatin.

What I knew about property rights in those days was really about manners and respect. When you encountered a “No Trespassing” sign, you didn’t enter. Although you might anticipate better fishing on the other side of the fence, you didn’t resent the owner for posting the land. You just asked for permission, and if that was not forthcoming, or if you couldn’t locate the owner, you moved on. Had my family owned land across which a stream flowed, I imagine my reaction to finding someone fishing without permission within the boundaries of our property would have been much the same as Beth Dutton’s. (Though in my youth my mother would not have tolerated her vocabulary.) Had I been the fisherman, I would have apologized and moved on. 

A public fishing access sign in Paradise Valley, Montana.

Many years later when I went to law school and took an interest in natural resources and environmental issues, I learned that my early informal training in property rights was basically correct. I understood that where private property prevented access to a small stream like Sourdough Creek you could not fish except with permission. On rivers like the Gallatin and Yellowstone, private property might prevent access to stretches of a river, but if I could find a point of public access, I would launch my two-man rubber boat and fish where I pleased. The difference turned on whether I could float my boat. As I learned in law school, that is roughly the difference between the legal classification of navigable and non-navigable waters.

Although laws vary from state to state, the distinction between navigable and non-navigable waters is widely accepted as the determinant of both public access and title to the bed and banks of a waterway, though with differing tests for navigability. Under the common law public trust doctrine, individual members of the public have a right to fish in navigable waters subject to regulations the state may impose to conserve the fishery. Under the constitutional equal footing doctrine (pursuant to which new states enter the Union with the same rights as the original states), the beds of navigable waters are owned by the states unless expressly alienated. The beds of non-navigable waters are owned to the center of the stream by the riparian landowners. Thus, property owners can deny not only access but also the privilege of floating over or walking on the bed of non-navigable streams.

Navigating the Law

Had Dutton confronted Roarke before 1984, her claim that he was in her river would have been correct if the stream was not navigable, or so she reasonably would have thought. At that time the generally accepted test for navigability for access purposes was whether the waterway had been used to float logs from a harvest site to a mill. So compared to floating logs, my youthful two-man-rubber-boat test leaned significantly in favor of fishermen. But it turned out I was ahead of my time. In 1984, the Montana Supreme Court ruled that, for public trust doctrine purposes, waters that can be used for recreation, including floating small craft, are subject to the public trust, meaning that anglers like Roarke have a right to fish them.

The public trust doctrine derives from the English common law principle that the public shares a right to fish and navigate for commercial purposes in navigable waters. The doctrine was received by American states along with most of the common law. In Britain, navigable waters were defined as tidal, but given the many large rivers of North America, state courts substituted navigability-in-fact for tidal as the test for the geographical scope of the doctrine. Until the 1970s, it was rarely suggested that the public’s rights under the doctrine extended beyond the historic uses of commercial navigation and fishing or to waters not navigable-in-fact. 

With growing demands on the scarce water resources of the American West and the rise of the environmental movement in the late 1960s and early 1970s, law professor Joseph Sax suggested that courts could employ the public trust doctrine to achieve a variety of environmental ends. Several other academic lawyers and environmental activists followed his lead. They urged courts to extend the historic doctrine to non-navigable waters and even terrestrial resources. They also urged that members of the public should have much broader rights of use than commercial navigation and fishing.

Westslope cutthroat trout. ©Pat Van Eimeren / USFS Northern Region

In 1984, the Montana Supreme Court was among the earliest to take the bait. In Montana Coalition for Stream Access v. Curran, the high court ruled that the public has a right of recreational use in “any surface waters capable of use for recreational purposes.” Later that year, in Montana Coalition for Stream Access v. Hildreth, the court reaffirmed its ruling in Curran while making clear that the geographical reach of the public trust doctrine was not limited by the historic navigability for title test. Thus, public rights that once existed in at most 2,000 to 3,000 miles of Montana waterways were extended to almost every river, stream, lake, and pond in the state. 

Not surprisingly, many landowners were taken aback by what they viewed as a judicial expropriation of their previously recognized property rights. Their concerns were magnified when the Montana legislature subsequently recognized public rights of use to the high-water mark for camping, hunting, and other activities unrelated to fishing or navigation while also requiring landowners to provide means of portage where needed. 

It is not clear that the dramatic expansion of public rights of access to Montana’s waters has always served the interests of conservation in general or the fishery in particular. That the catch-and-eat philosophy of my youth has given way to the catch-and-release ethic of today reflects the increase in demand relative to supply.

In “Yellowstone,” the Duttons have at times resorted to extra-legal means to get their way. But following the 1980s judicial and legislative actions in Montana, several real-world landowners sued the state for an uncompensated taking of private property. In the 1987 case of Galt v. State, the Montana Supreme Court invalidated some of the legislature’s more egregious upland intrusions but reaffirmed its earlier recognition of expansive public rights in recreational use of Montana’s waters.

By 2020, it was beyond argument that Roarke Morris was not fishing in the Duttons’ river, although it is an open question whether he had violated their rights by trespassing to gain access. Understanding that he has no right to step on the Duttons’ upland property, he claims to have waded five miles downstream from his family’s ranch. But anyone who has waded even a short distance in a fast-moving mountain stream could reasonably question his veracity, particularly in light of his dapper, unruffled appearance.

Investing in Habitat

An opinion survey in 2021 would almost certainly reveal that the vast majority of Montana residents believe the Montana Supreme Court got its 1984 decisions right. Montanans love the outdoors, and fishing is a major contributor to the state’s revenues from tourism. But it is not clear that the dramatic expansion of public rights of access to Montana’s waters has always served the interests of conservation in general or the fishery in particular. That the catch-and-eat philosophy of my youth has given way to the catch-and-release ethic of today reflects the increase in demand relative to supply. Even with hatchery stocking of streams and lakes (and putting aside questions about hatchery impact on the viability of native fish stocks), there are not enough fish to allow people like my mother and me to take home 20 in a day.

Having witnessed the Duttons’ use of dynamite to divert another stream on their property earlier in the series, we might have doubts about their interest in maintaining the native fish population. But other landowners have demonstrated such interest. Illustrative are the several owners of land underlying the Mitchell Slough adjacent to the Bitterroot River in Southwestern Montana. Correctly believing that the marsh-like slough could be transformed into productive fish habitat, the landowners invested several million dollars in improvements

No doubt the wealthy people who invested in the Mitchell Slough were motivated by the prospect of better fishing for themselves and their guests. But there should be nothing wrong with that. Few investments in private property are made without the prospect of personal gain, yet most such investments provide public benefits of one type or another. The improved fishery in the Mitchell Slough is also an improvement to the fishery in the Bitterroot River. After all, the fish are free to come and go.

Private habitat improvements to the Mitchell Slough fishery in western Montana also improved the Bitterroot River, which the slough flows into. ©Bob Hendricks

In the 2008 case Bitterroot River Protective Association v. Bitterroot Conservation District, the Montana Supreme Court ruled that the public is also free to come and go between the Mitchell Slough and the Bitterroot River. Now that the general public has free access to the slough, will the property owners invest further in the fishery they created? Unlikely. Would they have spent millions improving the fishery had they known the public would have a right of access? Probably not. Nor would they have invested millions in their homes had they anticipated that a court would later order them to open their doors to the general public.

It is not a coincidence that some of the best fishing in Montana is on spring-fed streams that flow across private property in the Paradise Valley. Because the only access to most of these spring streams is over private lands, landowners can charge a fee for access, thus limiting the number of fishermen at any given time. The revenues received by the property owners provide an incentive to limit fishing to what is sustainable and invest in maintaining the habitat for the future. In our new age of equity some may protest that not everyone can afford to pay rod fees—that fishing is a right, not a privilege. But there is more at stake than equity. As Garrett Hardin explained many decades ago, open and equal access to scarce resources can result in tragedy. 

Owners of large tracts of land like the Duttons may take little interest in fishing or promoting good fishery habitat, but the fact that access to many miles of Montana streams requires a long wade over slippery rocks through fast-moving waters helps limit the pressures of a growing population. Maybe Roarke Morris did walk five miles downstream from his ranch (meaning he has a five-mile walk home), but few people are up to that challenge—particularly with the prospect of facing the wrath of high-heeled Beth Dutton along the way. My mother and I were serious about our fish-catching derby each summer, but without permission to access Sourdough Creek across the private land of my dad’s colleague, I’m pretty confident we wouldn’t have walked even the half mile downstream for the better fishing.

I’m cheering for the Duttons to prevail in their battle to preserve their cowboy empire and the many natural wonders it protects (even if by inadvertence). But I wouldn’t wager a can of worms on them succeeding. The pressures for greater public access by outdoors enthusiasts and resort developers will only increase. But if anyone can stand athwart the advance of history, surely it’s Beth Dutton.

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