By Terry L. Anderson
When the battles over water in Oregon’s Klamath River Basin were at their peak, PERC organized a meeting in Portland to bring competing parties to the table in search of common ground for reducing the conflict. Before the meeting started, people warned that the meeting could blow up. Animosity was so great that some people refused to be seated next to certain other people. When the meeting started, one rancher pulled out a huge pocket knife and proceeded to pick his teeth with it. The gesture clearly had little to do with dental hygiene.
Such posturing is common in environmental battles because property rights are unclear. In the Klamath case, ranchers thought they had water rights pre-dating statehood or contracts with the Bureau of Reclamation that guaranteed water delivery; tribal members thought they had even more senior rights based on their pre-Columbian era use of the river; and environmentalists believed their trump card was the Endangered Species Act they were using to protect endangered salmon and two species of sucker fish. As Randy Newberg makes clear in his article in this issue, the debate over stream and wildlife access is no different. Private property owners believe that they have the right to control access to their land if that land is under a non-navigable stream, and many sportsmen and women assert that the water and wildlife are theirs and that they should not be denied access. If anyone questions your claim, pull out your knife and pick your teeth.
Unfortunately, the value of the resource in question is lost in the battles, whether at conference tables, in courts, or in legislatures. Like all wars, environmental ones are zero-sum games wherein one party’s gain is the other’s loss. Making it worse is the adage, “to the victor goes the spoils,” which reminds us that the battleground is also destroyed.
Consider the battle—dare I say war—over the Mitchell Slough in Montana’s Bitterroot Valley, which James Huffman discusses in this issue. In the 1990s, landowners along the Mitchell spent thousands of dollars to transform what they deemed an irrigation ditch into a trout fishery. Unfortunately for the landowners, the fishery created what lawyers call an “attractive nuisance” with the jumping trout attracting the attention of anglers. When those anglers waded down the stream and were arrested for trespassing, they claimed a right to fish under Montana’s stream access law.
Many years and thousands of dollars later, the 2008 Montana Supreme Court ruled in favor of the anglers on the grounds that the Mitchell was a natural waterway. The courts did conclude, however, that the stream was “man improved.” The spoils in this case come in many forms. The ink was barely dry from the court’s decision when an angler was spotted wading through spawning nests, destroying any potential for survival of the eggs. The angler’s car displayed a license plate supporting Trout Unlimited, an organization which filed a legal brief in favor of access. So much for trout conservation.
Another spoil will result when the duck shot by a hunter wading up the stream falls beyond arm’s length of the high water mark, territory not open to public access. Whether the hunter or his faithful dog retrieves the duck, a trespass will occur, and the knives will flash again.
Perhaps the worst spoil of all will be the Mitchell and fisheries like it that will not be “man improved.” Would landowners have made the investment had they known they were creating an attractive nuisance to which the public would be given access? Would you build a swimming pool in your backyard if you thought it would be open to the neighborhood? Not likely. Moreover, because landowners have a clear property right to control private water diversion gates, they can (and have) shut off the water diverted into the slough. Without a helping hand from landowners and without the water diverted from the Bitterroot, the trout would not be there. Again, out come the blades.
Asserting claims by pulling out knives and picking teeth may be a way of declaring power, but it is not a productive way of resolving environmental conflicts. Fortunately, the Klamath story includes a positive lesson. Following the posturing at the first meeting, PERC held a second and larger meeting at which the parties put their knives away and began stipulating rights on which they could agree. With those rights in place, ranchers, Indians, anglers, and environmentalists found common ground on which they could bargain rather than fight.
Most landowners have resigned themselves to public stream access under Montana’s law, but some sportsmen and women have not satiated their access appetite. Bridges on county roads now constitute access points. In 2008, a Utah court ruled in favor of public access (see Randy Simmons’ article in this issue). A proposed but failed initiative in Montana tried to prevent landowners from charging access fees, and some hunters believe that public wildlife “flowing” across private property is no different than public water doing so.
Whether it is the Klamath or the Mitchell, the lesson should be clear: Until the parties recognize and accept the legitimate rights held by each, the zero-sum game will ultimately become a negative-sum game as the resources in question suffer. The U.S. and state constitutions guarantee the rights of property owners, while various common and statutory laws create some public rights to water and wildlife. When those rights are at odds with one another, pulling out knives does not resolve conflicts. Accepting the rights and bargaining at the coffee table or in the marketplace offer a better path to resource stewardship.
In “On Target,” PERC’s executive director Tery L. Anderson confronts issues surrounding free market environmentalism. Anderson can be reached at firstname.lastname@example.org.