See those fenceposts spray painted day-glo red and orange everywhere you look? This is why. It all started when the Montana Stream Access Law took effect in the early 1980s. Listen to Ennis native Jim Goetz explain it nearly 40 years later. A lot of good came out of the access ruling. But landowners got paranoid, fearing the public had a legal right to access their land by “walking up the creek.” So bright red “stop signs” popped up all over Montana. When I fished around in the early 1970s…along the Gallatin, the Yellowstone, the Big Hole and the Madison…none of this existed. Ranchers could care less if you cut across their pasture to reach the river. Not so today. You can’t blame them. Too many people…all rushing to the river …at the same time…en masse.
Attorney behind Montana’s stream access cases discusses career at Montana State University event
- By Helena Dore Chronicle Staff Writer
- 9 hrs ago
A Bozeman attorney who helped enshrine Montana’s stream access rights into law said during a talk on Thursday that he believes the state’s public trust doctrine is well-protected, and it would be difficult for legislators to alter it.
Jim Goetz, the attorney who defended stream access rights along the Dearborn and Beaverhead rivers in the 1970s and 80s, discussed his career in a speech entitled “The Waters Belong to Everyone: The Montana Stream Access Cases.”
Goetz’s presentation was part of the Montana State University Library’s Trout and Salmonid Lecture Series. Every year, the library brings in a speaker to talk about fishing, trout, stream access and “anything that relates back to those species,” said Special Collections Librarian James Thull.
The events are free, and past speakers have included award-winning author Thomas McGuane, then-director of Montana Fish, Wildlife and Parks Martha Williams and Jeremy Wade, star of the hit television series River Monsters. MSU’s library is home to the world’s largest collection on trout and salmonid species, according to Thull.
At his talk, Goetz described how he came to represent the Montana Coalition for Stream Access in precedent-setting cases against Dennis Curran and Lowell Hildreth — two landowners who blocked the public from accessing rivers on their properties.
Curran, an oil and gas developer who owned a large swath of land along the Dearborn River, didn’t want people to float down the river through his property. Goetz and the coalition challenged him in court, and Curran filed a $10 million countersuit.
The case made it to the Montana Supreme Court, and the coalition prevailed. The ruling clarified that waters owned by the state under the constitution are “susceptible to recreational use by the public,” and private parties can’t interfere with that use.
Goetz and the stream access coalition were still worried about that recreational use clause, so they launched a second case against Hildreth, a private landowner who attempted to block public access along the Beaverhead River.
That case also ended up in the Montana Supreme Court, which ruled that the public has a right to use waters that flow through private property “in the bed and banks up to the ordinary high water mark.”
That wasn’t all, according to Goetz. The court throughout the stream access cases embraced the “public trust doctrine” — the legal concept that the water is owned by the state for the beneficial use of the public, and the state is not allowed to abdicate that ownership to private parties.
The principle is controversial in states like Colorado, but it’s protected in the Montana Constitution. When the Republican Party recently started talking about establishing a supermajority to amend sections of the state constitution, Goetz started to wonder how solid the doctrine was.
His conclusion: The legal language establishing the public trust doctrine and Montana’s Stream Access Law are strong, and they aren’t enshrined in or dependent on the Montana Constitution alone.
“The ruling in the Dearborn River case is based upon the Montana Constitution and the public trust doctrine,” Goetz said. “Even if the Legislature takes a stab at this, either legislatively or through a constitutional amendment to change, I think what we have is very good language, and I think the public trust doctrine is incredibly helpful to us on that score.”
That said, the public trust doctrine remains a matter of state law, and it is subject to changes by the state, Goetz said.
“I just want to stress how important these Supreme Court cases are — how very important they are … particularly with this current effort to try to amend the constitution,” he said. “We were lucky in those cases. I was happy to do them. They were fun, and we have, I think, the best stream access laws in the country.”
Helena Dore can be reached at 406-582-2628 or email@example.com.