Public Access to State Waters
An interesting article today in the New York Times describes a dispute in Montana between owners of land abutting a waterway and members of the public who want to use the water for fishing. The technical legal question is itself an interesting one: whether the water is a natural waterway or a man-made ditch. According to Montana law, if it is a “natural, perennially flowing stream,” the public must have access, so the owners are arguing that this particular body of water is, in effect, an irrigation ditch. Owners have taken to stretching wire fences across the river/ditch to prevent sports fishermen from accessing the water as it flows past private land. The wrinkle appears to be that the water was (beyond dispute) at one time a natural waterway, but that it has been dramatically altered by human activity, including the addition of a series of gates to control water flow. Nevertheless, according to one (Republican) state senator, “[m]y family has been here for a hundred years, and no one except these rich out-of-state landowners thought of it as anything but part of the BItterroot [River].” So one interesting question is whether a natural waterway ceases to be natural once a certain amount of human activity has taken place. And, if so, how much human activity is sufficient to accomplish this transformation?
Perhaps more broadly, the case may present another example of an interesting (and increasingly frequent) pattern in which the wealthy purchase property that is burdened by traditional public access requirements and then fight to prevent the public from exercising those rights, raising privacy concerns to justify their stance.
Some of the owners of the waterfront property in the Montana case are folks like Huey Lewis and Charles R. Schwab (of the discount stock brokerage). According to one waterfront owner, “[i]t would be a tremendous loss of privacy and we’d have people in that everyday.” Obviously, waterfront property is extremely desirable and, increasingly, it is out of reach to all but the wealthiest citizens. But many waterfront owners want to have their cake and eat it too. They want to own on the waterfront but they don’t want to be subject to the inconveniences (including traditional public rights of access) that go along with owning these unique parcels of land. Arguably weighing in the other direction in this case are the (allegedly) substantial improvements made to the channel by the the riparian owners. According to Huey Lewis, the waterfront owners have spent time and money to deepend the channel and improve the water quality in order to provide better habitat for trout. Without these improvements, they claim, it would have simply been a muddy ditch. Montana’s governor has sided with the fishermen, and says, “[i]f you want to buy a big ranch and you want to have a river and you want prvacy, don’t buy in Montana. The rivers belong to the people of Montana.”
Before I get a slew of breathless comments from property rights advocates, let’s be clear that this is not a takings case, a la Nollan v. California Coastal Commission. Montana’s law requiring public access to its waterways is longstanding, and these owners all bought with notice of the Montana rule (though arguably with some ambiguity about the factual status of this particular waterway — on the other hand, on this score, see the above statement by the Montana state senator).
One of the more interesting issues about this case is how the case (and others like it) is symptomatic of an increasing desire for social and physical distance between the wealthiest citizens and everyone else. Income and wealth inequality have now reached levels we have not seen in this country since the Gilded Age. One of the consequences of this dramatic inequality, it seems to me, is that the wealthiest increasingly view themselves as a society apart, that is, they increasingly seem to reject the notion that they are part of a common enterprise shared with the rest of us. Moreover, it seems to me that the waterfront is one of those (few) places in our society where people from all backgrounds come together and interact in what Carol Rose has called the “comedy of the commons.” Now, I’m agnostic about the merits of this particular case. I suspect that the fishermen are correct; it may well be, however, that this particular waterway is not, as a factual matter, a “perenially flowing stream.” But it seems to me that we should be vigilant against attempts by narrow segments of our society to enclose for themselves spaces that have traditionally served as open access commons.