A shot across the bow

Discussion in 'Fly Fishing Forum' started by Trustfunder, Mar 25, 2013.

  1. Trustfunder Active Member

    Posts: 176
    rock creek
    Ratings: +71 / 0
  2. GAT Active Member

    Posts: 4,169
    Willamette Valley, OR
    Ratings: +2,686 / 0
    It should be interesting to see how this turns out. In Oregon, we have a continual battle with land owners next to rivers. Some of them have deeds that indicate they own part or all of the river next to their property. The deeds were written in error. According to the Oregon Constitution, they do not nor can own the river or the land below the normal high water mark.

    However, this does not mean someone can cross private property without permission to gain access to the river. The Oregon River Rights only kicks in when you have lawfully entered the river and do not traverse above the high water line.

    As I understand it, in Montana you have the right to cross private property to gain access? That won't fly in Oregon.
  3. Richard Olmstead BigDog

    Posts: 2,494
    Seattle, WA
    Ratings: +791 / 0
    Gene -
    I think Montana law is exactly as you describe in Oregon. However, from what I've read over the years on this subject, in many states, including Washington, and possibly Oregon, neither side wants a definitive ruling from either a state or US Supreme court, because the consequences for the losing side would be too devastating for the broad-ranging implications it might carry, and no one can predict how courts would rule.

    Laws in Montana have been more explicit and state courts there have consistently supported public access, which is why this report suggests the plaintiff is probably trying to use this case to get a US Supreme Court ruling.

    Who among us would want our current Supreme Court to rule on a case that involves interests of wealthy, private land-owners vs. Joe Public's access rights to streams. It doesn't surprise me at all that some wealthy land owner, supported by land-owners groups (which doesn't mean groups that support your "land" and my "land"), would like to come before this court, just like wealthy and corporate political donors did, and anti-choice supporters want to.

    Dick
    Lugan, Bill Aubrey and Kent Lufkin like this.
  4. GAT Active Member

    Posts: 4,169
    Willamette Valley, OR
    Ratings: +2,686 / 0
    Dick, there's no doubt you correct. I'm not really sure how it would come down if the S.C. was involved. This seems more of a State issue to me so it could be they may not even consider the case... which would be fine with me.
  5. teedub Active Member

    Posts: 365
    Cle Elum
    Ratings: +100 / 0
    There is nothing like getting into a body of moving water in MT and having a guy come up to you with a 7mm Mag (probably doesn't need a scope) and tell you - "hey - you are trespassing!"

    "Sir I got in at the bridge head or the boat launch (or some other intelligent response)" "I have the right to be here. Your actions constitutes assault and I am sure you don't want me to climb back out and call the Sheriff."

    "Go ahead, he is my cousin and I was the biggest contributor in the last election!"

    Then you say - "what's the shortest way out of here!"
  6. The Dude Member

    Posts: 59
    SW WA
    Ratings: +7 / 0
    Be interesting to see what happens, though the argument in the article saying the Seyler road easement wasn't a guaranteed public access is a false argument. If there is a public easement or a long term open and notorious use it will fall into what is know as the " Kings Road " since we base our public access laws on English Common law. A road for the public is a road for the public no matter how the legal easement was procured even if, it was procured through neglect of property rights.
  7. Trustfunder Active Member

    Posts: 176
    rock creek
    Ratings: +71 / 0
    As I understand it, in Montana you have the right to cross private property to gain access?

    Nope. You can't cross private property to gain river access in Montana. It's similiar to Oregon with the exception if there's a county road/bridge maintained and paid for by the taxpayers, the adjoining landowner(s) must grant you access within 15ft of the normal high water mark. I don't see this changing in the 42 waterway sections deemed as navigable and owned by the state. As of right now this pertains to all waters navigable or non.

    The non-navigable waterways (Ruby, Beaverhead, WF Bitteroot, Upper Blackfoot etc) and any place that has private landownership adjoining non-navigable waterways is where things will change if this gets overturned. It's been brought up almost every other year with a few cases going to the Mt SC and the ruling has always been on the side of Joe the public. I certainly hope that this will be the case again... if not, non-navigable rivers may be of limits to wade fishing (unless your a property owner) and a floater may encounter several new wire fences to deal with. If this gets overturned you're going to see a riot in Montana vigilante style.

    I've always wondered why the bridges on the Madison river were so low to the water in certain high class real estate sections.... I think I've figured it out now.
  8. freestoneangler Not to be confused with Freestone

    Posts: 4,129
    Edgewood, WA
    Ratings: +791 / 1
    More challenges to what is arguably the best stream access laws in the U.S. Wealthy elitists (like King Kennedy) who believe it is their right to purchase, control and deny access to our nations most treasured resources, will continue to advance their agenda. For the record, the Ruby is navigable... was so long before barb wire fences and diversion dams popped up every 1/2 mile. IMO, all of the nations navigable waters and public owned (paid for) bridges should be public domain. In fact, I think the public is owed back compensation for the loss of use from land owners who have excluded use. If they want exclusive rights to our nations most treasured resources, then let's make them pay for it... or, in trade for a lower tax rate, allow access.

    I urge all of you who believe this is wrong to join and support groups like PLWA or Utah's Stream Access Coalition. The elitists have deep pockets and are hell bent on making your current and your kid's future resources off limits. We have the numbers, and with that equal footing in legal representation, but only if we unite.
    Dorylf and Builder like this.
  9. Richard Olmstead BigDog

    Posts: 2,494
    Seattle, WA
    Ratings: +791 / 0
    Trustfunder,
    Tell Lewis & Clark the Beaverhead isn't navigable.
    D
  10. The Dude Member

    Posts: 59
    SW WA
    Ratings: +7 / 0
    Keep in mind "a Navigable waterway" is a legal definition based on very old maps and even older terms. I know of several legally designated "navigable waterways" that you might not be able to put a canoe on more than twice a year.
    Cruik likes this.
  11. GAT Active Member

    Posts: 4,169
    Willamette Valley, OR
    Ratings: +2,686 / 0
    If the river is navigable at any time, it is considered "navigable".

    Rivers were the hwys in the past for moving products from one destination to another. One reason for the "navigable waterways" rights was to prevent land owners from charging a fee to float through a section of river because that is exactly what they were doing.

    The land owners were disrupting commerce in the day. Today, it would be like a land owner who owns property next to a highway stopping all the trucks and cars and charging them to drive past his property.

    When it comes to river rights, the river can be considered a street through a residential area . The high water mark is the curb.

    You may own the property next to the road, street or hwy but you do not own the road street or hwy... it doesn't make any difference what your deed may indicate. That's just the way it is. Your deed is not legal if it indicates you own a public thruway. The very same goes for navigable rivers.

    It seems the battle in Montana is exactly what we go through every few years in Oregon.
    Dorylf likes this.
  12. Old Man Just an Old Man

    Posts: 21,769
    Dillon, Mt
    Ratings: +1,713 / 0
    I hope they get their facts straight as Seyler Lane doesn't cross the Ruby River. East Bench does though.
  13. KerryS Ignored Member

    Posts: 6,755
    Sedro Woolley, WA, USA.
    Ratings: +1,778 / 0
    [IMG]
  14. Jim Darden Active Member

    Posts: 903
    Bellingham, Wa.
    Ratings: +222 / 0
    Things they are a changing....look at Colorado, where they prosecuted kayakers for navigating the Colorado River. It doesn't matter what the Federal law says, it matters who can buy the most politicians, (or Judges). I used to think Mexico was corrupt.....
  15. GAT Active Member

    Posts: 4,169
    Willamette Valley, OR
    Ratings: +2,686 / 0
    That's pretty much what we've found in Oregon.

    Fortunately, during one of the River Rights wars the Attorney General at the time wrote and opinion in regards to the subject and many counties now adhere to the opinion. Of course this can be challenged so we are always on guard for a new attack on our rights.

    Here's his opinion in regards to Oregon River Rights:

    http://www.doj.state.or.us/agoffice/agopinions/op8281.pdf

    One case of trespassing in Wallowa County against rafters on The Wallowa River went to court and the Judge decided against the land owner (one of my relatives!) indicating the AG opinion as the reason.
  16. Trustfunder Active Member

    Posts: 176
    rock creek
    Ratings: +71 / 0
    On non-navigable rivers in MT, private property lines go to the middle of the river, thus if you own the adjacent land across the bank you own the entire streambed and any new islands that may form that are not deeded to the state or other property owners.
  17. ak_powder_monkey Proud to Be Alaskan

    Posts: 3,209
    Eagle River, Alaska
    Ratings: +112 / 0
    does MT have a stand your ground law? If it does you could just shoot them and keep fishing
    Darthmonkey likes this.
  18. Old Man Just an Old Man

    Posts: 21,769
    Dillon, Mt
    Ratings: +1,713 / 0
    The map I was looking at had it the other way around. Most of the roads around that area are poorly marked, or not marked at all.
  19. Alex MacDonald Dr. of Doomology

    Posts: 3,336
    Haus Alpenrosa, Lederhosenland
    Ratings: +895 / 0
    I've always held that the only good politician is a dead one.
  20. Jim Wallace Smells like low tide

    Posts: 5,663
    Somewhere on the Coast
    Ratings: +544 / 0
    I might not go that far, but I have a sign on my front door that reads:

    NO politicians!
    NO missionaries!
    NO solicitors!

    If one of those idiots ignores the sign and knocks, I won't even talk to 'em, I just point at the sign and point towards the street, and then if they don't start to leave immediately, I tell them to get off my property and never come back. Seems to be working. Lately, none of those slimy sales types has bothered.

    However, I'll stand up for my own access rights to public places.