River Recreationists Win Big in Montana!

Posted: 01/09/2001
by Jason Robertson

The Missoulian newspaper reported on January 5th, 2001 that U.S. District Judge Charles C. Lovell dismissed a case challenging public recreational rights on Montana's rivers and streams. This is a huge win for boaters and fishermen.

The case was brought by the Mountain States Legal Foundation, and challenged a 1985 law allowing recreational access below the high water mark on all rivers and streams.

The Mountain States Legal Foundation was established in the 1980's with assistance from James Watt, the highly controversial Interior Secretary under Ronald Reagan. James Watt has been in the news lately because of his close ties to the Bush nominee for Interior Secretary, Colorado Attorney General Gale Norton. Interestingly, Judge Lovell was also a Reagan appointee.

The suit focused on the part of the law allowing public use of non-navigable rivers. In order to win, the plaintiffs to show that the state acted irrationally and arbitrarily, and beyond the public interest. However, in his decision, Lowell stated, "It is abundantly clear that the plaintiffs cannot show that the stream access law has no public purpose and, in point of fact, plaintiffs have not made any real effort to do so."

According to The Missoulian, Lovell said the state provided plenty of obvious, rational reasons for the law, including serving the public's desire to use waterways for recreation, promoting tourism and the economy, and managing Montana's natural resources and wildlife.

Attorney's for the plaintiffs say that they will likely appeal the case to the 9th Circuit Court of Appeals. American Whitewater will continue to follow this closely and post updates if the appeal moves forward.

UPDATE (April 2001)

The Plaintiff has filed an appeal with the Ninth Circuit Court of Appeals in the Madison v. Montana case. The appeal process will probably take atleast 18 months given the current case load in the Ninth Circuit.

For more information, link to The Missoulian article: Judge Tosses Suit Challenging Stream Access Law.

Jason D. Robertson
635 Joseph Cir
Golden, CO 80403-2349