Appeal Challenging Montana Navigability Is Denied

Posted: 07/28/2003
by Jason Robertson

On May 28 the U.S. Supreme Court denied an appeal by Mountain States Legal Foundation who, representing three landowners, filed a lawsuit in June 2001 alleging the Montana Stream Access Law established in 1985 violated their rights under the U.S. Constitution to regulate who floated over their land.

The decision thus protects Montana's Stream access law and public rights of navigation throughout the State.

The case was first heard in District Court in Helena and dismissed. An appeal was filed in the U.S. District Court with the Judge ruling the law constitutional. The case was appealed to the higher court of the 9th U.S. Circuit Court of Appeals in San Francisco, which in December 2002 upheld the law. This ruling was then appealed to the U.S. Supreme Court that decided the appeal did not hold water.

Landowners had brought action in U.S. District Court [Helena Division - MT] to enjoin the state permanently from enforcing MT Stream Access Law, which declared that the public had right to recreational use of streambed and banks of all streams up to their ordinary high water mark with regard to privately owned streambeds and banks underlying historically non-navigable waters (Stillwater & Ruby rivers and O'Dell Creek). The opinion of the United States Court of Appeals for the Ninth Circuit is reported at 316 F.3d 867 (9th Cir. 2002). On the State's motion to dismiss, Senior District Court Judge Lovell, held the statute did not violate landowners' substantive due process rights or effect taking of private property (5th & 14th Amendment); landowners' claims were time-barred; and res judicata barred claims. Motion granted.

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