Public access muddies waters

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Public access to rivers, lakes, and streams seems like a good idea in the abstract. Why not allow access to anyone who wants to enjoy the recreational opportunities associated with water? Or to state it differently, why allow private landowners to exclude the public from waters that happen to flow across private lands? A recent decision of the Montana Supreme Court is a perfect example of why environmentalists and conservationists should reconsider their usual support for public access without regard to ownership of the underlying land.

In a Nutshell

Last November in Bitterroot River Protective Association v. Bitterroot Conservation District (2008), the Montana Supreme Court settled a long-running dispute over public access to the Mitchell Slough, a body of water near the Bitterroot River in western Montana. The facts and law were complicated, but in a nutshell there were two questions: 1) Is Mitchell Slough a “natural, perennial-flowing stream” under the Natural Streambed and Land Preservation Act of 1975? 2) Is Mitchell Slough a “natural water body” under the Stream Access Law of 1985? If the answer to the first question is yes, the defendant conservation district must approve any physical alteration or modification of the waters in the Mitchell consistent with the requirements of the 1975 Act. If the answer to the second question is yes, then there is a right of public access to the waters of the Mitchell under the 1985 Act.

As is often the case with seemingly similar terms in different laws, the Supreme Court stated that a “natural water body” is not necessarily the same thing as a “natural, perennial-flowing stream.” The Court concluded that the Mitchell Slough is both, so both laws apply. Therefore the public does have a right of access to the waters of the Mitchell, although not across the private lands through which the entire slough flows. Access must be gained from the Bitterroot River, which both feeds and drains the slough.

It is not my purpose here to question the Court’s legal analysis. The most important legal mistakes were made more than two decades ago when the Court contrived from whole cloth an unprecedented interpretation of the public trust doctrine (the principle that certain resources are preserved for public use and that government is required to maintain such resources) in the case of Montana Coalition for Stream Access v. Curran (1984). In that case, the Court held that “under the public trust doctrine and the 1972 Montana Constitution, any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for nonrecreational purposes.” The Stream Access Law at issue in the Mitchell case was the legislature’s attempt to cope with this expansion of the historic reach of the public trust doctrine.

It makes little sense to stand on the principle of public access if the alternative is overfishing and abuse of habitat.

Although the prospects for correcting the errors of the Curran decision grow dimmer with each passing year, the environmental and economic consequences of the decision are no less troubling today than they were a quarter century ago. The Mitchell case illustrates well the consequences of mandating public access to scarce natural resources.

Looking Back

Early maps showed a water channel roughly where the Mitchell Slough exists today. Although there are no records from the time of the original map indicating the volume of flow through the slough, it is evident from the many physical alterations to the channel and surrounding land that water flow was not sufficient to meet the demands of irrigators. A diversion dam and canal were built to bring water from the Bitterroot into the slough, and decades of human engineering have been necessary to maintain the flow of the Bitterroot. In the words of one rancher who testified in the case, the river “wants to go to the west, so we have to keep bringing it back.”

The Supreme Court concluded that evidence of this extensive human modification of the river and slough did not make the water bodies non-natural under the 1975 and 1985 laws. To find that it did, said the Court, would mean that scarcely a river in the state would be natural. If human modification of natural waterways means they are no longer natural, the two water statutes would have little effect.

Future Implications

But this outcome has significant implications for future water management. Most of the engineering designed to maintain and augment water in the Mitchell was financed by irrigators who were willing to shoulder these costs because a reliable and larger water supply would yield economic returns sufficient to justify the expense. They invested in water engineering with the same expectations that led them to invest in buildings, fencing, machinery, and the very land on which they grow their crops. As economists often say, incentives matter, and without the incentives of a reasonable chance to make a living, the owners of the Mitchell Slough lands would have moved on and left the slough to the fish and birds (or to dissipate across old irrigation ditches).

Experience demonstrates time and again that public access regimes pose significant risks for the long-term management and preservation of the resource.

Some would argue that this is exactly what should happen. They assert that the general public has an interest in the fish and birds and should not be excluded by private owners whose economic activities require alteration of the natural landscape. On this theory, the public interest always trumps private rights. It is the theory upon which the Curran decision and the Stream Access Law were based.

In many cases, property owners who must allow access to waters on their land are offended by the principle of public access, but the economic impacts are not sufficient to deter continued investment in wise resource management. But in a growing number of circumstances, public access destroys the incentives needed to provide the very benefits the public purports to want. The Mitchell Slough of today is one such circumstance.

For a century, private investment in management of the Mitchell was directed at providing irrigation waters to the investors. No one would have suggested that other members of the public had a right to come onto Mitchell Slough lands and divert those waters to other lands. Everybody understood what it meant to have property rights in land and water. The agricultural economy of the region and state depended on that shared understanding and the state’s enforcement of those rights.

Unintended Benefits

In the Mitchell Slough and many other parts of the state, these investments in water management had unintended benefits for fish and wildlife, benefits that would not have existed if the irrigators, as holders of the property rights, didn’t have the incentives to invest. But private provision of benefits to fish and wildlife habitat does not occur only by happenstance. In the Mitchell, there was significant private investment for the explicit purpose of improving fish and wildlife habitat. These were investments, not philanthropic gifts. Those property owners who invested in habitat improvement did so with the expectation that they would get the exclusive benefit on their properties. The fact that the Bitterroot fishery, to which the public has access under historic public trust principles, would benefit is a plus, but it is not the reason the investments were made.

There is no mystery why some of the best fish- ing in Montana is on private spring-fed streams and lakes to which the public has no right of access. Because the owners of these streams and lakes can exclude others, they have an incentive to improve and manage the fishery. Many advocates of public access take offense that property owners keep the fish for themselves or charge others a fee for access. But it makes little sense to stand on the principle of public access if the alternative is overfishing and abuse of habitat.

Increasing Risk

Public access increases the risk that both water and wildlife habitat will suffer from the tragedy of the commons—where everyone has an unlimited right of use, but no one has the incentive or authority to limit overuse. Public access does not always lead to resource damage and destruction. With adequate control by the state, it is possible to impose habitat management regulations and bag limits to sustain fish and wildlife populations. But developing and enforcing such regulations for the waters of a state the size of Montana is a daunting challenge, particularly in a time of rapidly declining state resources.

The idea of public access has popular and populist appeal. But the reality is that the actual use of any resource—whether pursuant to public access, in the name of state ownership, or pursuant to a private property right—is use by individuals. Those individuals, in whatever capacity they are acting, will have varying incentives with respect to use, management, and conservation of the resource. Experience demonstrates time and again that public access regimes pose significant risks for the long-term management and preservation of the resource.

Even with public access, the Mitchell may remain a quality fishery as well as an important supply of irrigation water for many years to come. But incentives for other Montana property owners to invest in environmental protection and restoration in the future will be diminished by an insistence on public access to virtually all waters in the state.

 

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James Huffman is the Erskine Wood Sr. Professor of Law at Lewis and Clark Law School in Oregon. He served as dean of the law school from 1993 to 2006. he is a fellow at the Hoover Institution at Stanford University, serves on the boards of the National Crime Victims Law Institute, the Foundation for Research on Economics and the Environment, the...
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