13 March 2007

Trout Unlimited & Stream Access

"National Trout Unlimited has proposed a resolution to prohibit Trout Unlimited Chapters and State Councils from involvement in any Stream Access disputes involving private property rights. The reasons given for this proposal are that the Stream Access issue is divisive, is not in line with the mission of the organization, and continued involvement will likely hamstring the ability of the National organization to raise money for new conservation initiatives in the future."
I received the above message from Montana Trout Unlimited. There has been quite a reaction to it.

Stream Access has been a cause celebre that has united Montana's rank and file anglers since the 1970s, when an ad hoc group of activists used the state constitution and the public trust doctrine to challenge private landowners who thought they owned the rivers. Since the 1984 court ruling, Montana anglers have had the right to recreate within the high water mark and to acess streams at all public road and bridge crossings.

We should note, however, that in the 1970s that even Montana Trout Unlimited would not carry the Stream Access ball. Though the ad hoc coalition, the Montana Coalition for Stream Access, was supported by many TU chapters and members, it was politically too hot button an issue for Montana TU to take the lead. Since that time, Stream Access has been well accepted as law and common practice, and Montana TU has worked actively to defend the law against the frequent challenges by Huey Lewis and other wealthy landowners who want to own it all and exclude the public. Even today, though, it has been primarily groups such as Public Lands/Water Access Association, Inc. http://plwa.org and Montana River Action http://www.montanariveraction.org that are leading the Stream Access charge.

The general explanation for National TU's anti-access position is that it is run by a board of wealthy donors who have little sympathy for the unwashed masses. Many wealthy anglers own riverfront property and would like to exclude the rabble from their front yard.

James Cox Kennedy of Atlanta, Georgia, is one such wealthy landowner. He owns property on the Ruby River here in southwest Montana, and his hired goons (aka security force) have done everything they can to intimidate the public from the river that runs through Kennedy's 3,200 acres of land. This has included stringing electric fencing at the two public bridges that cross the river on Kennedy's land. Rumor has it that Kennedy is holding out a $70 million carrot to National TU if the group will force local and state chapters to back off on the stream access issue.
Montana TU chapters and members are threatening everything from a national campaign to expose National TU's position to a secession from the national group.

As a TU member from Butte, I well understand the TU National concern. It is not unlike the pressure George Grant TU felt with issues such as the ballot initiative to stop open-pit, cyanide heap-leach gold mines. As I recall, GGTU feared taking a position that would alienate local donors.

It is also not unlike the pressure individuals or groups feel when they become tightly woven into the fabric of "mainstream" or "consensus-based" organizations such as watershed committees. There will be issues such as "the sanctity of water rights as private property rights" that prohibit one from taking an activist position while remaining part of the larger group. Montana TU and each individual chapter (and ultimately each individual chapter member) will need to make this decision. In my book, anytime we must sacrifice our core values (for me this includes public access, minimum stream flows, and endangered species) in order to get along & go along, it's time to walk away from the sandbox.

There is a larger issue here, and that is the Public Trust Doctrine. Just as the PTD guaranteed a legal basis for public access to streams and rivers, the PTD also guarantees minimal flows for fish. In California, the Audubon Society won a court decision in 1983 that forced the Los Angeles Department of Water and Power to leave enough water in Mono Lake to sustain its natural resources. This is because natural resources are held as a public trust by the state. Nevermind that LA had legally acquired water rights permitting it to dewater tributaries of Mono Lake and hence the lake itself. The bottom line: "water rights that affect public trust resources are inherently nonvested property interests; that is, they are revocable by the state." (Blumm and Schwartz, 2003)

Montana TU and chapters such as George Grant TU are a long way from supporting legally-required minimal instream flow rights for fish. But they might some day reach that goal that lies along the path of the Public Trust Doctrine. Nonetheless, in the meantime Stream Access is an important milestone on the Public Trust Doctrine path. If Montana TU, its chapters, and its rank-and-file members get pushed off that path, there will be little hope for the conservation future. Trout Unlimited will degenerate into what it was for the most part in the early 1970s--what Butte conservationist George Grant called "an Ernie Schwiebert travelogue club" where members showed off slides of their latest fishing safari.

Michael Blumm and Thea Schwartz (2003), "Mono Lake and the Evolving Public Trust in Western Water," Issues in Legal Scholarship. Available at http://www.bepress.com/ils/iss4/art3/.

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