Fending Fences

Montana is a land of snow-capped mountains and alpine lakes. A place where long plains grasses undulate to the melody of western winds. Each fall, the cottonwoods that inhabit the valley floors surrender their leaves in a cloud of gold, and the hillsides sigh in their eternal evergreen. It is a state as majestic as it is diverse, held together in perfect balance, by its waters.

Crown jewel

Stand at the banks of the mighty Missouri River on a cold February morning and you will likely be treated to the vision of a hardy Montana resident, pulling into a fishing access site, rod holders mounted on top of their rig, warm winter layers stuffed under their waders. For the passionate angler, frigid winter days are no deterrent to casting a fly; they simply dictate a change from a top of the water tease to a more submerged approach. Return to the same spot in summer and you will be greeted not only by locals sporting license plates from across the state, but by anglers who have come from all over the world to experience Montana’s incredible fly-fishing opportunities. Known as the Last Best Place, Montana is frequently depicted in artistic reveries of every type. More importantly to us, perhaps,is its recognition as the crown jewel of recreational fly fishing due to the incredible public access it offers the angling community.

Montana boasts over 150,000 miles of rivers, and with an outdoor industry valued at around $7.1 billion dollars. In terms of the value that recreation contributes to its economy, it comes second only to Hawaii. More than 80 percent of the population recreates outdoors—a major reason why residents have worked so hard to protect equitable access to the public lands that make up over a third of the state.

Yet many of the rights public land and water users enjoy today are relatively new, and access to Montana’s rivers and streams comes under threat—daily. With the space Montana occupies in the cultural lexicon of fly fishing, it may seem hard to believe that for the majority of the past century, important legislation such at Montana’s Stream Access Law and Bridge Access Law didn’t exist.

For the people

During the 1970s, anglers across the state began to encounter more and more problems accessing and enjoying the rivers where they loved to fish. Reports of landowners harassing people attempting to recreate on Montana rivers increased. Fences started going up along riverbanks, at bridges, and across popular access points. No trespassing signs appeared in locations where anglers had been recreating for generations, and there were reports of property damage; a landowner ran over an angler’s boat with his vehicle, in one instance. Government officials failed, in most cases, to intervene on behalf of the recreationists.

Montanans began to picture what their lives would look like without access to the rivers and streams they spent their days on, and this stark realization prompted action. In 1984, cases filed by the Montana Stream Access Coalition, in response to intimidation tactics and closures along the Dearborn and Beaverhead Rivers, were heard by the Montana State Supreme Court. These cases, which became known as Curran and Hildreth , went on to form the basis for current stream access rights we enjoy today. Victory in the Curran case determined that in Montana, the state owns the riverbed of navigable rivers, holding it in trust for the good of the public. The case also helped define navigable waters, a concept which allows us to wade, float, and use those waters for fishing. It states that “ any surface waters capable of use for recreational purposes are available for such purposes by the public ”. This interpretation draws from the Montana Constitution’s emphasis that the vast array of navigable waters in the state belong to, and should be used to benefit, the people of Montana as a whole.

Of immense importance to the angler, it also specifies that recreational users have the right to recreate on areas up to the normal high water mark and to portage around barriers obstructing access. Hildreth upheld this decision and went a step further by affirming that stream bed ownership should not be surrendered to individual owners on either side of the waterway. Bipartisan legislation, based on the public trust doctrine and these two cases, led to the creation of the Stream Access Law, which allows for anglers to use our state’s rivers with important access freedoms.

Fenced off

While these victories heralded important benefits for Montana’s residents, visitors, and economy, the courts began to see challenges almost immediately. Cases were brought against Montana’s Stream Access Law throughout the 80s and 90s, and yet challenge after challenge was denied by the Montana justice system. Disturbingly however, anglers and guides began to see an increase in access issues, paired with an apparent apathy by officials to punish offenders, or reopen access points. This came to a head in Madison County where a popular county road bridge, used to access the Ruby River, had been fenced off by the landowner.

In 2000, Montana Attorney General Joseph Mazurek issued an opinion which stated that the public “may gain access to streams and rivers by using the bridge, its right-ofway, and its abutments.” He also clarified that the width of the easement, unless otherwise specified, should be the same as the road. This did nothing, however, to deter a Madison County landowner from harassing anglers, erecting barriers, and stringing barbed wire fencing along bridges over the Ruby River in an effort to prevent public access. After years of obstruction and lack of action to remove the barriers by county officials, local anglers contacted the Public Land Water Access Association (PLWA), a Montana nonprofit, and asked for help.

Unintended effects

The intervening years of 2004 to 2013 saw an incredible challenge to Montana’s public access rights through cases like Seyler Lane, which were fought—and eventually won—by the PLWA, against landowner James Cox Kennedy. The cases involved three county road bridges where access was blocked, with Kennedy’s lawyer Peter Coffman making several arguments which put public access at risk. He argued there should be different bridge easements for the government and the public, and that neither the stream bed below, nor the air above Montana rivers, should belong to the public, but rather to landowners like Kennedy. He also argued that the Stream Access Law should be repealed, and even that Supreme Court Justices should declare part of the Montana Constitution unconstitutional. As the cases worked their way through the Montana court system, PLWA’s attorney, Devlan Geddes, raised the issue that differing easements would have unintended effects, such as automatically making anyone with a flat tire occupying the side of the road a trespasser. He reasonably argued that “once the width [of an easement] is established, it can then be used for all lawful public purposes,” using stream access as an example. PLWA eventually emerged victorious in these cases.

Equity of access

During this time, the 2009 Bridge Access Law was passed. With cases like Seyler Lane and increasing challenges to stream access popping up across the state, public access advocates came together to codify bridge access and reaffirm the 2000 Attorney General opinion. A new coalition of organizations, advocates, and legislators banded together to support this common-sense bill which protects public access for recreational users while still allowing for landowners to fence when needed. It also gives authority to government agencies to perform repairs and ensure public safety. Nearly every angler fishing Montana’s pristine waters today continues to benefit from important victories like these.

Today, a visitor to Montana can wend their way through a verdant canyon, spy an idyllic bend in the river, park their car beside a county road bridge, and climb down to cast their fly for that perfect rainbow trout. A father and daughter can spend the day floating down the Madison watching antelope graze and herons fly, then drop an anchor and eat lunch leaning against boulders strewn across the shoreline. Montana’s long days, indelible memories, and perfect casts still belong to everyone, and because of that, they are cherished and cared for.

But this equity of access, this idea of who we are and what we value, is once again at risk, perhaps now more than ever. Illegal closures and the loss of access is an “invisible emergency,” according to PLWA Public Access Investigator, Haley Sir. She sees a worrying trend in her work.

“We are losing access,” she says. “We need awareness and action to safeguard our outdoor heritage.”

Montana Troutfitters ownerm Justin King, agrees. His sentiments are that the increasing number of access issues in Montana poses a significant problem for locals and visitors alike.

“Fly fishing is a top industry for the state, but also the spirit of the place and why we live here,” he said. A Montana local and fly shop owner since 1978, King believes that public access to its streams and rivers is an incredible privilege, but also an important right, one he says he will fight for.

“Until the day I die,” he emphasized.

Fall in love again

There is still time—and an opportunity—to protect Montana’s fly-fishing resources. Organizations like PLWA are working to investigate illegal closures and reopen access. Communities are rallying together to defeat legislation meant to weaken public access; they are working to enhance the protections that already exist. Most importantly, people are continuing to spend time outside, making memories, and bringing new members into the angling community.

Now is the time to fall in love with our rivers all over again, and to bring someone along on that journey. If there is one thing we know, it is that you protect what you love. And there is a lot to love about time spent on Montana’s public waters.

Drewry Hanes

Drewry Hanes is the Executive Director of the Public Land Water Access Association (PLWA), a Montana nonprofit that has been protecting equitable access to Montana’s public lands and waters since 1985. Data for this article was provided by Headwaters Economics, a Montana based, independent non-profit research group and the National Wild and Scenic Rivers System website.