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.