Bruce Farling - January 25, 2010
Montana Trout Unlimited
PERC Claims
As if Montanans don’t have enough to argue about, along comes a fear-mongering campaign led by a so-called free-market Bozeman think-tank riling ranchers over a fabricated threat.
Spokesmen for the Property and Environment Research Center, or PERC, have been meeting with local farm bureau members in recent months declaring in grave terms that Montana sportsmen and sportswomen are intent on undermining property rights by demanding access to irrigation ditches for fishing and hunting. But it’s all baloney, and this organization, which fancies itself a champion of scholarship, should know better.
According to PERC, proof of their claims can be found in the celebrated legal outcome of a dispute involving Mitchell Slough, the 16-mile side channel of the Bitterroot River. In this case, the Montana Supreme Court unanimously found that because Mitchell Slough is a natural channel of the river and it supports recreation, it is open to public access between the high water marks, which is the test for Montana’s stream access law. Some landowners, led by a handful of well-to-do types, disagreed and had hoped to close the stream, thereby privatizing it. They claimed in court the channel no longer was natural because of years of straightening and irrigation manipulation. Further, they claimed because they invested in restoring some of the damaged channel they should be entitled to have sole access to it for recreation.
But many natural streams in Montana, including the Missouri and Clark Fork Rivers, are no longer completely natural. They, too, have been manipulated. But no one, save perhaps PERC, would argue these streams should be off-limits to the public. And though the landowners who restored some of the damage caused by other private landowners to Mitchell Slough genuinely deserve thanks, they are not the only people who have fixed streams. Hundreds of landowners in recent years have worked with agencies and groups like Trout Unlimited to restore damaged streams on their lands. Yet they haven’t demanded exclusive access.
The PhDs at PERC, however, blur important distinctions that are otherwise fairly intuitive. Natural streams that have been manipulated for irrigation are still natural streams. Time and geology created them. Irrigation ditches, however, have been wholly constructed by humans. And the law is clear that human-constructed irrigation ditches are not, nor should they be, open to recreational access.
Why PERC feels compelled to spread fear is unclear. Some critics think the group is just currying favor with wealthy landowners who could become donors. Yet this is not PERC’s first kooky foray into stream access issues. Its principals have long claimed that Montana’s nationally acclaimed wild trout fisheries are being jeopardized by our stream access law. They argue when the public has access, it destroys fisheries through over-use. They claim that only paternalistic private ownership and control can save the day.
Yes, they really say this. Never mind that empirical evidence indicates the opposite. That Montana has the nation’s best trout fishing and the nation’s best stream access law is not coincidence. When the public has access to a resource, subject to reasonable regulations, it will fight for and invest in conservation. This has been the Montana story. When streams are privatized, only the wealthy will care. In England and other European nations trout fisheries are privately owned.
But the fishing in Montana is far superior – and it’s improving in places where landowners and conservationists are working together to improve habitat damaged by, well, private ownership.
PERC claims that stream access is a disincentive to private land conservation. Nonsense. Today, there are more landowners who want to fix habitat or convey conservation easements than there is time or money. Their conservation interest transcends simple private property dogma. Further if stream access was so awful, prices for river-side property would not be so astronomical. It is clear many people are willing to pay top dollar for property where they must share a river with the little people.
During its 24-year-history, Montana’s stream access law has been an enormous success. That a few disgruntled landowners don’t like it, or that it runs counter to dogmatic property rights philosophy will not change that.
This is Bruce Farling of Montana Trout Unlimited. Contact us at www.montanatu.org.
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