No. 86-178 -.
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
JACK E. GALT, et al.,
Plaintiffs and Appellants,
STATE OF MONTANA, a c t i n g by and
t h r o u g h t h e DEPARTMENT OF F I S H ,
W I L D L I F E AND PARKS,
D e f e n d a n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e H e n r y L o b l e , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For A p p e l l a n t :
P h i l i p W. S t r o p e argued, H e l e n a , Montana
F o r Respondent:
S t a n B r a d s h a w , D e p t . F i s h , W i l d l i f e and P a r k s ,
Helena, Montana
P o o r e , R o t h & R o b i n s o n ; U r b a n L. R o t h argued,
B u t t e , Montana
F o r Amicus Curiae:
C h a r l e s F. M o s e s argued f o r D i r e c t o r s of T - B o n e
C a t t l e w o r n e n s A s s o c . , e t a l . , B i l l i n g s , Montana
Submitted: October 2 1 , 1 9 8 6
Decided: January 15, 1 9 8 7
Mr. Justice Frank R . Morrison, Jr. delivered the Opinion of
the Court.
Plaintiffs appeal the order of the First Judicial
District Court granting summary judgment in favor of the
defendant, State of Montana. We reverse.
In 1384, this Court decided the twin c a s e s of Montana
Coalition for Stream Access, Inc. v. Curran (Mont. 19841, 682
P.2d 163, 41 St.F.ep. 906, and Montana Coalition for Stream
Access, Inc., v. Hildreth (Mont. 1984), 684 P.2d 1088, 41
St.Rep. 1192. In Curran, we held that under the public trust
doctrine as derived from the Montana Constitution the public
has a right to use any surface waters capable of use for
recreational purposes up to the high water marks and may
portage around barriers in the water in the least intrusive
manner possible. This holding was reaffirmed in Hildreth.
In response to these two decisions, the legislature
enacted §§ 23-2-301, et.seq., MCA, addressing the
recreational use of streams. Appellants, plaintiffs below,
brought this action for declaratory relief pursuant to the
Uniform Declaratory Judgment Act, S$ 27-8-101 throuqh
27-8-313, MCA, requesting the District Court to declare
S S 23-2-301, et.seq., MCA, unconstitutional as a taking of
private property without just compensation. The District
Court upheld the constitutionality of the statutes and
awarded summary judgment in favor of the State.
Addressing the constitutionality of 5 5 23-2-301 et.seq.,
MCA, on appeal we frame the issues as follows:
1) Whether the public trust doctrine relating to water
incl-udes t h e use of adjoining land?
2) Whether S S 23-2-301, et.seq., MCA, permit uses of
the bed and banks and adjoining land beyond the scope of the
public trust doctrine?
Appellants challenge the following sections as
unconstitutional:
23-2-301. Definitions. For purposes of this part,
the following definitions apply:
(2) "Class I waters" means surface waters, other
than lakes, that:
(a) lie within the officially recorded federal
government survey meander lines thereof;
(b) flow over lands that have been judicially
determined to be owned by the state by reason of
application of the federal navigability test for
state streambed ownership;
(c) are or have been capable of supporting the
following commercial activities: log floating,
transportation of furs and skins, shipping,
commercial guiding using multiperson watercraft,
public transportation, or the transportation of
merchandise, as these activities have been defined
by published judicial opinion as of April 19, 1985;
or
(dl are or have been capable of supporting
commercial activity within the meaning of the
federal navigability test for state streambed
ownership
(3) "Class I1 waters" means all surface waters
that are not class I waters, except lakes.
112) "Surface water" means, for the purpose of
d-etermining the public's access for recreational
use, a natural water body, its bed, and its banks
up to the ordinary high-water mark.
23-2-302. Recreational use permitted --
limitations -- exceptions.
(1) Except as provided in subsections (2) through
(5), all surface waters that are capable of
recreational use may be so used by the public
without regard to the ownership of the land
underlying the waters.
(2) The right of the public to make recreational
use of surface waters does not include, without
permission or contractual arrangement with the
landowner:
(a) the operation of all-terrain vehicles or other
motorized vehicles not primarily designed for
operation upon the water;
(b) the recreational use of surface waters in a
stock pond or other private impoundment fed by an
intermittently flowing natural watercourse;
(c) the recreational use of waters while diverted
away from a natural water body for beneficial use
pursuant to Title 85, chapter 2, part 2 or 3,
except for impoundments or diverted waters to which
the owner has provided public access;
(d) big game hunting except by long bow or shotgun
when specifically authorized by the commission;
(el overnight camping within sight of any occupied
dwelling or within 500 yards of any occupied
dwelling, whichever is less;
(£1 the placement or creation of any permanent
duck blind, boat moorage, or any seasonal or other
objects within sight of or within 500 yards of an
occupied dwelling, whichever is less; or
(g) use of a streambed as a right-of-way for any
purpose when water is not flowing therein.
(3) The right of the public to make recreational
use of class I1 waters does not include, without
permission of the landowner:
(a) big game hunting;
(b) overnight camping;
(c) the placement or creation of any seasonal
object; or
(d) other activities which are not primarily
water-related pleasure activities as defined in
23-2-301(10). * * *
23-2-311. Right to portage -- establishment of
portage route.
(1) A member of the public making recreational use
of surface waters may, above the ordinary
high-water mark, portage around barriers in the
least intrusive manner possible, avoiding damage to
the landowner's land and violation of his rights. *
* *
(3)(e) The cost of establishing the portage route
around artificial barriers must be borne by the
involved landowner, except for the construction of
notification signs of such route, which is the
responsibility of the department. The cost of
establishing a portage route around artificial
barriers not owned by the landowner on whose land
the portage route will be placed must be borne by
the department. * * *
The public trust doctrine is found at Article IX,
Section 3(3), of the Montana Constitution which provides:
All surface, underground, flood and atmospheric
waters within the boundaries of the state are the
property of the state for the use of its people and
subject to appropriation for beneficial uses as
provided by law.
Section 70-1-202, MCA, provides:
Property of the state -- what included. The state
is the owner of:
(1) all land below the water of a navigable
lake or stream;
(2) all property lawfully appropriated by it
to its own use;
(3) all property dedicated or granted to the
state; and
(4) all property of which there is no other
owner.
Section 70-16-201, MCA, states:
Owner of land bounded by water. Except where the
grant under which the land is held indicates a
different intent, the owner of the land, when it
borders upon a navigable lake or stream, takes to
the edge of the lake or stream at low-water mark;
when it borders upon any other water, the owner
takes to the middle of the lake or stream.
As noted in Curran, supra, and Hildreth, supra, the
consti.tutiona1 provision clearly provides the State owns the
waters for the benefit of its people. In those decisions, we
further held that the public's right to use the waters
includes the right of use of the bed and banks up to the high
water mark even though the fee title in the land resides with
the adjoining landowners. We did not define what kinds of
use are permissible under the public trust doctrine.
The issue before us now is whether the public trust
doctrine includes the types of use of the bed and banks found
in 5 s 23-2-301, et.seq., MCA. Section 23-2-302, MCA, has
provided for a public right to build duck blinds, boat
moorages, and camp overnight, so long as not within sight of
or within 500 yards of an occupied dwelling, whichever is
less.
The public trust doctrine in Montana's Constitution
grants public ownership in water not in beds and banks of
streams. While the public has the right to use the water for
recreational purposes and minimal use of underlying and
adjoininq real estate essential to enjoyment of its ownership
in water, there is no attendant right that such use he as
convenient, productive, and comfortable as possible.
The public has a right of use up to the high water mark,
but only such use as is necessary to utilization of the water
itself. We hold that any use of the bed and banks must be of
minimal impact.
Appellants contend the right of public use set forth in
the Curran and Hildreth decisions applies only to the surface
of navigable streams. This is incorrect. In Hildreth we
explicitly included the right to use of the bed and banks.
684 P.2d 1094, 41 St.Rep. 1199. In Curran, we adopted a
recreational use test to determine navigability. Appellants
apparently contend that the right of public use is restricted
to Class I waters; i.e., those waters considered to be
navigable under the federal test. This is not so. As we
said in Curran, "The capability of use of the waters for
recreational purposes determines their availability for
recreational use by the public. Streambed ownership by a
private party is irrelevant." 6 8 2 P.2d 170, 41 St.Rep. 914.
The Montana Constitution makes no distinction between Class I
and I1 waters. - waters are owned by the State for the use
All
of its people.
Pursuant to 23-2-302, MCA, overnight camping and
construction of a duck blind are permissible within a few
feet of an occupied dwelling so long as these activities are
not "within sight". Similarly, a boat mooring could be
placed directly in front of someone's home if obscured from
vision.
Overnight camping is not always necessary for
utilization of the water resource itself. The public can
float and fish many of our rivers without camping overnight.
The statute is overbroad in giving the public right to a
recreational use which is not necessary for the public's
enjoyment of its water ownership. The same can be said. of
constructing permanent objects between high water marks.
Although duck blinds may be necessary for enjoying the
ownership interests in certain large bodies of water, the
right to construct permanent improvements on any commercially
navigable stream does not f0ll0~7.
Big game hunting as authorized by S 23-2-302(d), between
high water marks, is not. permitted under any circumstances
because it is not a necessary part of the easement granted
the public for its enjoyment of the water. Further, although
the recreational user has a right to portage around
obstructions minimally impacting the adjoining landowner's
fee interest, there can be no responsibility on behalf of the
landowner to pay for such portage route. The landowner
receives no benefit from the portage. The benefit flows to
the public and the expense should be borne by the State.
We reaffirm well established constitutiona.1 principles
protecting property interests from confiscation. Landowners,
through whose property a water course flows as defined in
Curran and Hildreth, supra, have their fee impressed with a
dominant estate in favor of the public. This easement must
be narrowly confined so that impact to beds and banks owned
by private individuals is minimal. Only that use which is
necessary for the public to enjoy its ownership of the water
resource will be recognized as within the easement's scope.
The real property interests of private landowners are
important as are the public's property interest in water.
Both are constituti.onally protected. These competi.ng
interests, when in conflict, must be reconciled to the extent
possible.
Accordingly, we find 23-2-302 (2)(d), (e), and (f),
MCA, to be unconstitutional. Further, we find
S 23-2-311 (3) ( e ) , MCA, to be unconstitutional insofar as it
requires the landowner to bear the cost of constructing a
portage route around artificial barriers. The balance of the
statutory scheme accords with the Elontana Constitution and
the opinions of this Court. We find the unconstitutional
portions of the statute to be subject to severance and
therefore, leave the balance of the statute intact.
We enter declaratory judgment in favor of appellants in
accordance with the views herein expressed.
We Concur: - 7
4 '
Justices
Mr. Chief Justice J. A. Turnage, concurring remarks:
I have sjgned the majority opinion because I believe
the result of the majority will offer some clarifi-cation to
the existing law as well as remove unconstitutional provi-
sions from the statutes.
I do not agree v~ith all that has been said about the
Public Trust Doctrine in thjs opinion and in the Curran and
Hildreth decisions.
It was not then and it j s not now necessary to resort
.
to the theory of Public Trust Doctrine to find a right to the
use of surface waters in this State for recreational purpos-
es. This right, to whatever extent it may ultimately devel-
op, is to be found in the express language of Article IX,
Section 3(3) of the Montana Constitution, which pr0vid.e~:
All surface, underground, flood and
atmospheric waters within the boundaries
of the state are the property of the
sta.te for the use of its people and
subject to appropriation for beneficial
uses as provided by law.
The Public Trust Doctrine is not expressly set forth in
the Monta.na Constitution. It is a legal theory created by
courts. This Court should not resort to creating or finding
legal theories when a result can be reached from express
constitutional language.
If the State of Montana is to be considered a trustee
over waters of this State, or a trustee over any other prop-
erty, under a Public Trust Doctrine, then the State must be
held to the standard that applies to all trustees which
standard requires that the trustee must own legal title to
the property over which trust power is sought to be
exercised.
Mr. Justice L . C. Gulbrandson specjally concurring:
J concur with the holding of the majority opinion that
5 23-2-302 (2) (d), (e), and (f), MCA, are unconstitutional. I
would also hold that § 23-2-301(12), MCA, which defines
"surface waters" as includingUthe bed and its banks up to the
ordinary high-water markWis unconstitutional as applied to
Class I1 waters.
I would, in line with my dissents in the Curran and
Hildreth decisions, request that this Court expunge from the
Hildreth decision, the unsupported statement that "the public
has the right to use [the bed and banks] up to the ordinary
high water mark." Hildreth, 684 P.2d 1088, 1094. In my
opinion, that statement is dicta. There was no legal.
authority for said statement, it was not necessary to decide
the issue before the court, and it conflicts with the holding
of the majortty decision that only that use which is
necessary for the public t.o enjoy its ownership of: the water
resource will be recognized. In support of this position, I
cite Day v. Armstrong (Wyo. 1961), 362 P.2d 137, a case
relied upon by the majority in Curran. In Curran, this Court
stated:
In 1961, the Wyoming Supreme Court
supported public use of waters suitable
therefor without regard to title or
navigability. The Court held:
"Irrespective of the ownership of the bed
or channel of waters, and irrespective of
their navigability, the public has the
right to use public waters of this State
for floating usable craft and that use
may not he interfered with or curtailed
by any landowner. It is also the right
of the public while so lawfully floating
in the State's waters to lawfully hunt or
fish or do any and all other things which
are not otherwise made unlawful."
Day v. Armstrong (Wy0.1961)~ 362 P.2d
137, 147.
In essence, the Wyoming court held that
public recreational use of waters was
limited only by the susceptibility of the
waters for that purpose.
Curran, 682 P.2d 163, 170.
The Wyoming Supreme Court in - further stated:
Day
When waters are able to float craft, they
may be so used. When so floating craft,
as a necessary incident to that use, the
bed or channel of the waters may be
unavoidably scraped or touched by the
grounding of craft. Even a right to
disembark and pull, push or carry over
shoals, riffles and rapids accompanies
this right of flotation as a necessary
incident to the full enjoyment of the
public's easement. . . .
On the other
hand, where the use of the bed or channel
is more than incidental to the right of
floating use of the waters, and the
primary use is of the bed or channel
rather than the floating use of the
waters, such wading or walking is a
trespass upon lands belonging to a
riparian owner and is unlawful. Such
trespass cannot be made lawful either by
legislative or judicial action . . .
Except as herein specified, to use the
bed or channel of the river to wade or
walk the stream remains an unlawful
trespass.
- 362 P.2d 137, 145-46.
Day,
It is my opinion that where the State has title to the
streambed, it may legislate, within the limits of declared
public policy, the use of the streambed. Where the title to
the streambed is privately owned, the State has no legal
authority to legislate use of the bed and banks of that
stream without paying just compensation through lawful
eminent domain proceedings. I
Mr. Justice William E. Hunt, Sr., dissenting:
I dissent. The majority finds S$ 23-2-301, et seq.,
MCA, an impermissible enlargement of the public trust
doctrine and this Court's holdings in Montana Coalition for
Stream Access, Inc. v. Curran (Mont. 1984), 682 P.2d 163, 41
St.Rep. 906, and Montana Coalition for Stream Access, Inc. v.
Hildreth (Mont. 1984), 684 P.2d 1088, 41 St.Rep. 1192. They
describe in some detail the evils they foresee if the public
uses the streambed up to the high water mark in a
"convenient, productive, and comfortable" way. While they
acknowledge the publ.icls right to use the streambed, and
reject appellant's claim that the public may only use the
surface of the water, they find the use permitted by $ 5
23-2-301, et seq., MCA give the public rights that are not
necessary to utilize the stream or river.
I do not agree that this is so hut if it is then it is a
question for the legislature to solve a s experience teaches
how we can best balance the rights of the landowner and the
public.
The issues addressed by the majority opinion are not
properly before this Court. They were not raised at the
District Court level nor on appeal. The appellants filed an
action for declaratory judgment alleging that S S 23-2-301
through 23-2-322, MCA (H.R. 265) were unconstitutional as a
taking of private property for public use without the
landowner's consent or just compensation.
In the District Court and on this appeal appellants
raised these three issues:
1. Whether H.B. 265 operates as a taking of private
property for the public purpose of recreational uses without
providing just compensation for the taking.
2. Whether H.B. 265 is constitutionally deficient
because it failed to include in its title any reference to or
any reasonable reference to the fact that private property
was being committed to the public purpose of recreational
uses without just compensation, a n d without the consent of
the landowner.
3. Whether the District Court erred in not finding H.R.
265 unconstitutional in part.
The issues raised! by appellants and briefed by
respondents on appeal are clearly res judicata under this
Court's decisions in Curran, 682 P.2d 163, 41 St.Rep. 906,
a.nd Hildreth, 684 P.2d 1088, 41 St.Rep. 1192. In both of
those opinions we upheld the dismissal of the defendant's
counterclaims for inverse condemnation based on the theory
there had been a taking of land without compensation. In
discussing this issue in Curran we pointed out the provision
in the Montana Constituti.on that applied and discussed its
application as follows:
"All surface, underground, flood, and atmospheric
waters within the boundaries of the state are the
property of the state for the use of its people and
are subject to appropriation for beneficial uses as
provided by law." [Art. IX, S 3 ( 3 ) , 1972 Mont.
Const. 1
Thus, Curran has no right to control the use of the
surface waters of the Dearborn to the exclusion of
the public except to the extent of his prior
appropriation of part of the water for irrigation
purposes, which is not at issue here. Curran has
no right of ownership to the riverbed or surface
waters because their ownership was held by the
federal government prior to statehood in trust for
the people. Upon statehood, title was transferred
to the State, burdened by this public trust.
In essence, the question is whether the water?
owned by the State under the Constitution are
susceptible to recreational use by the public. The
capability of use of the waters for recreational
purposes determines their availability for
recreational use by the public. Streambed
ownership by a private party is irrelevant. If the
waters are owned by the State and held in trust for
the people by the State, no private party may bar
the use of those waters by the people. The
Constitution and the public trust doctrine do not
permit a private party to interfere with the
public's right to recreational use of the surface
of the State's waters.
Curran, at 170, 41 St.Rep. at 914.
In Hildreth, we again considered the issue and said:
Hildreth's claim for inverse condemnation is based
upon the theory that there has been a taking of his
land without compensation. Such is not the case.
Public - of the waters and the bed and banks of
use
the Reaverhead up to the ordinary high water mark
was determined, not title. (Emphasis in original.)
H.B. 265 represents a legislative enactment that
attempts to reconcile the conflicting interests of
recreationalists and landowners, within the ambits of the law
as set out by this Court in Curran and Hildreth.
The District Court provided us with an excellant
analysis of the launching and ultimate enactment of H.B. 2 6 5 .
This dissent adopts that portion of District Court's Opinion
and Order as follows:
C. House Bill 2 6 5
The minutes of the meeting of the Senate Judiciary
Committee on March 8, 1985 relate some of the
history of House Rill 2 6 5 as follows:
"Representative Bob Ream, sponsor of HB 2 6 5 ,
introduced the bill to the Committee and traced a
bit of its history. There were a variety of bil1.s
on stream access last [I9831 legislative session.
Because of the uncertainty regarding the Hildreth
and Curran Supreme Court decisions at that point in
time, Representative Keyser sponsored a resolution
requesting an interim study. The interim committee
provided! a public forum for this issue. People
began to realize it wasn't a black and white
situation; there were areas of gray in between on
which people were going to have to compromise.
Both sides realized they would have to come up with
a bill to ameliorate some of their concerns. This
is not a committee bill, but a bill on which the
two sides got together in the months before the
session began and hammered it out. The bill was
before the House Judiciary Committee, which
appointed a subcommittee headed by Representative
Keyser. There was an attempt to involve both sides
in the decision making on the amendments made by
the subcommittee.. ..The goal of the
subcommittee was to keep House Bill 265 within the
bounds of the Supreme Court decisions and to
express the Legislature's desire to tie down and
define the areas that were left very broad in those
decisions."
As Judge Loble pointed out, many organizations were
instrumental in supporting this bill. For example the
Montana Stockgrowers Association and members of the
agricultural industry allia-nce, consisting of the Montana
Stockgrowers Association, Montana Wool Growers Association,
Montana Association of State Grazing Districts, Montana
Cowbelles, Montana Farmers Union, Montana Cattlemen's
Association, Montana Cattle Feeders Association, Montana Farm
Bureau Federation, Montana Water Development Association,
Women Involved in Farm Economics, and the Agricultural
Preservation Association, supported passage of H.B. 265.
Their position was set forth very clearly in a written
.
statement submitted. to the committee and it. is set forth
here :
While the suits [Curran and Hildreth] were pending
on appeal to the Supreme Court of Montana, the 1983
Legislature considered a variety of stream access
legislation. Those efforts failed in deference tc?
the appellate process. In May and June of 1984,
the Supreme Court of Montana rendered two broad,
sweeping decisions which allowed the public the
right to use all state waters for any recreational
and incidental uses. The use right was extended to
the high water mark on all streams regardless of
size. The decisions did not attempt to provide
definition to many of the terms and rights
extended, inviting a legislative response.
Fortunately the 1983 Legislature had created a.n
jnterim study committee to receive testimony and
propose legislation. The interim committee met
both before and after the Supreme Court of Montana
decisions and considered primary and collateral
issues raised by the decided cases.
The interim committee gave thoughtful deliberation
to the issue and developed Hcuse Bill 16 which
became the catalyst for the remaining legislation
being considered by this committee. It is fair to
say that absent these actions the later activities
of the agricultural community, working in
conjunction with recreationalists ai
rd the
Department of Fish, Wildlife and Parks, would have
never occurred.
As the interim committee's action drew to a close,
landowner groups met to outline the goals for
upcoming l-egislation and to plan for [the 19851
session. All groups agreed that it was critical to
pass legislation this session, both to define areas
left unclear by the Supreme Court of Montana's
decisions, to allay the fears of landowners and
recreationalists, and to avoid conflict as the
newly won rights were tested and applied to
specific streams other than the streams subject to
the litigation.
To pass legislation which would be sustained in the
event of a court challenge required an analysis of
the limits of the Supreme Court of Montana
decisions and a determination to propose
legislation within those limitations. Six major
goals were id-entified....
House Bill 265 addresses all of these concerns
within the limitations imposed by the decisions of
the Supreme Court of Montana. While the result
reached in those decisions were not to the liking
of most landowners, it is irresponsible to ignore
those decisions or to propose legislation which is
not cognizant of the opinions of the court. The
Supreme Court of Montana, the third branch of state
government, construing the Constitution of Montana,
has declared rights to exist in the public which
protect the continued recreational use of all
waters of the state. Absent passage of a
constitutional amendment restricting those rights,
legislation which failed to abide hy those
decisions and the Montana Constitution would
probably be declared void. There is little gained
in passing legislation which is constitutionally
flawed and likely to be declared void if
challenged. Thus, while landowner grounds
appreciated the sincere efforts brought to the
debate and drafting of both House Bill 16 and House
Bill 275, they concluded alternative legislation
was needed which addressed the major goals
identified and did so in a vehicle [H.B. 2651 which
would likely pass court challenge.
[Written testimony of Ron Waterman, dated January 22, 1985.1
In my opinion, the District Court correctly concluded
that the very point decided in Curran and Hildreth is the
issue in this case and that S 23-2-302, MCA was the
legislation that constitutionally responded to these opinions
and it was Left with nothing to do but grant defendant's
motion for summary judgment.
Mr. Justice John C. Sheehy , dissenting:
I concur in the dissent of Mr. Justice William E. Hunt,
Sr., and have further remarks to make.
The best that can be said of the majority opinion is
that as to the recrea-tional use of waters, it has certainly
muddied the waters. When one reads the majority opinion in
the light of Curran (19841, 682 P.2d 163, 41 St.Rep. 906, and
Hildreth (19841, 684 P.2d 1088, 41 St.Rep. 1192, one can only
conclude that the law respecting the correlative rights of
landowners and recreational water users in Montana is adrift
in a sea of confusion.
I. THE STATUTES ON THE RECREATIONAL USE OF STREAMS
Following our decisions in Curran and Hildreth, the
legislature met in 1985. One of the principal subjects
attacked by the legislature In 1985 was the enactment of laws
that would define the rights of recreational water users with
respect to adjoining landowners. The legislation was
vigorously argued, and the resulting statutes incorporated in
Title 23, Chapter 2, Part 3 represent a legislative enactment
that balanced the contending arguments of the interested
parties. The legislation shows that it was founded on a
proper interpretation of Curran and Hildreth, in a field
where the interpretation by the legislature was proper. This
Court has no business interfering or setting legislation
aside where the leqislature has properly acted within its
distinctive sphere.
For ease of discussion, rather than setting out the
statutes - -
in haec verba, it is suitable to paraphrase what the
legislature has done, and to set out with particularity those
portions which the majority have confused.
First, the legislation refers to surface waters, and
streams. It has no applicability to lakes. "Surface water"
was defined for the purpose of recreational use to include a
natural water body, its bed and its banks up to the ordinary
high water mark. S 23-2-301 (12), MCA. By d.efining "surface
water" to include the water itself and its stream bed up to
the high water mark, the legislature was following the law as
expostulated in Curran and Hildreth, as will be shown later
in this dissent..
The legislature also defined "recreational use" to
include fishing, huntinq, swimming, floating, boating, and
"other water related pleasure activities, and related
unavoidable or incidental uses." 5 23-2-301(10), MCA.
An important part of the legislation is the division by
the legislature of surface waters into classes. Class I
waters essentially are defined as those waters that a.re
recognized as navigable or have been judicially determined as
navigable or are capable of supporting commercial activities.
All- other surface waters are designated Class TI waters. S
23-2-301 (2), (3), MCA.
Recreational uses are permitted in 5 23-2-302. gore
specific reference will be made to those hereunder.
11. TITLE TO STREAMEEDS
The glaring defect in the majority opinion is that
although it purports to support the public trust doctrine
enunciated in Curran and Hildreth, it finds the public's
right to use those waters to be something in the nature of an
easement. Such a concept of ownership or right of use is in
derogation of the public trust doctrine because under the
doctrine the title to the streambed up to the high water mark
resides i.n the state, and while the state may regulate the
public use of streambeds under its ownership, it may not. deed
away the ownership of the streambeds. As to Class I
streambeds, the concept of a mere easement right r _ the
in
public must fail. The state has title.
In Curran, the majority pointed out that under Schively
v. Bowlby (1894), 152 U.S. 1, 48-50, 14 S.Ct. 548, 566, 38
L.Ed.2d 331, the Supreme Court stated:
The Congress of the United States, in disposing of
the public lands, has constantly acted on the
theory that those lands, whether in the interior,
or on the coast, above high water mark, may be
taken up by actual occupants, in order to encourage
the settlement of the country; - - - but that the
navigable waters - - soils under them, whether
and the
within or above - - - - - - -
the ebb and flow of the tide, shall
- - remain public highways; and
be and ...shall not
be granted away during the period of territorial
government; ... shall be held by the United
States in trust for the future states, and shall
- -in the several states, when organized and
vest -
admitted into union ...but shall be held as a
whole f o y t h e purpose of being ultimately
administered and dealt with for the public benefit
by the state, after it shall become a completely
organized community. (Emphasis added.)
We further pointed out in Curra.n that under the public
trust doctrine as first enunciated in Illinois Central
Railroad v. Illinois (1892), 146 1 . . 387, 13 S.Ct. 110, 36
JS
I,.Ed. 1018, the United States Supreme Court said:
... The trust devolving upon the state for the
public, and which can only be discharged b~ the
management and control of property in which the
public - - interest, cannot be reliGuished
has an a
transfer - - property. The control of the state
of the
for the purposes of the trust can never be lost,
except as such parcels as are used in promoting the
interests of the public therein, or can be disposed
of without any substantial impairment of the public
interest in the lands and waters remaining.
(Emphasis added.)
The majority opinion has set out the provisions of S
70-16-201, MCA, which purports to provide that the owners of
land abounded by water take ownership to the low water mark.
Under the public trust doctrine, such transfer of lands
subject to the public trust under navigable streams cannot
occur. "The control of the state for the purposes of the
trust can never be lost." Illinois Central Railroad, 146
U.S. at 387, 13 S.Ct. at 110, 36 L.Ed. at 1018.
Section 17-16-201, MCA, was enacted in 1895, according
to its history, although it probably pre-existed state
government. Nevertheless, when defining fishing rights in
1933, the legislature provided in .
§ 87-2-305, MCA:
Navigable waters subject - fishinq rights.
to
Navigable rivers, sloughs, or streams between the
lines of ordinary high water thereof of the State
of Montana and all rivers, sloughs and streams
flowing through any public lands of the state shall
hereafter be public waters for the purpose of
angling, and any rights of title to such streams of
the land between the high water flow lines or
within the meander lines of navigable streams shall
be subject to the right of any person owning an
anglers license of this state who desires to angle
therein or along their banks to go upon the same
for such purpose.
The definition by the legislature in 1933 of the right to use
the streambeds up to the high water mark for the purpose of
fishing is an indirect recognition of the legislature that S
70-16-301, MCA, is not worth the paper it is written on
insofar as it applies to the streambeds hetween high water
marks on navigable streams.
Plainly, then, we held in Curran and that holding
controls here:
Curran has no right of ownership to the river bed
or surface waters because their ownership was held-
by the federal government prior to statehood in
trust for the people. Upon statehood, title was
transferred to the state, burdened by this public
trust.
The retrenchment by the majority members from Curran to
a position that the adjoining landowners on a stream owned
the streambed subject to an easement is perplexing. Three of
the majority members, Justices Morrison, Harrison and Weber
signed the Curran opinion without a murmur of discontent.
Justice Gulbrandson, in his dissent in Curran did not dispute
the public trust doctrine theory of ownership in the state,
but argued instead tha.t summary judgment was improper on the
test of navigability of the Dearborn River.
In Hildreth, we strongly reaffirmed Curran, sayina:
Under the 1972 Constitution, the only possible
limitation of use can be the characteristics of the
waters themselves. Therefore, no owner of property
adjacent to state-owned waters has the right to
control the use of those waters as they flow
through his property. The public has the right to
use the waters and the bed and banks up to the
.
.
ordinary high water mark. Curran, supra. Further,
as we held in Curran, in case of barriers, the
public is allowed to portage around such barriers
in the least intrusive manner possible, avoiding
damage to the adjacent owners property and his
rights.
Hildreth,
-
In Hildreth, we determine that the landowner had not
been deprived of a property right. We said:
As discussed previously in this opinion and
extensively in Curran, supra, ownership of the
stream bed is irrelevant to determination of public
use of the waters for recreational purposes.
Navigability for recreational land use is limited,
under the Montana Constitution, only by the
capabilities of the waters themselves for such use.
Hildreth has never owned and does not now own the
waters of the Beaverhead River. Under Montana law,
the public has the right to use the Beaverhead and
its bed and banks up to the ordinary high water
mark, with additj.ona1, narrowly limited rights to
portage around barriers.
In Hildreth, Justices Morrison and Weber concurred.
Justices Gulbrandson and Harrison dissented, partly on the
ground that they would defer to the legislature in finding
solutions to water use conflicts between landowners and
recreational users. The legislature has now acted..
In the fairly recent case, Montana v. United States
(1981), 450 U.S. 544, 101 S.Ct. 1245, 6 7 ~.~d.2d
493,
reaffirmed the proposition that states when organized, own
the title to the riverbeds of navigable streams. The court
said:
The Crow Treaties in this case, like the Chippewa
treaties in Holt State Bank, fail to overcome-the
established presumption that the beds of navisable
rivers remain in trust for future states anddpass
to the new states when they assume sovereignty.
450 U.S. at 553, 101 S.Ct. at 1252, 6 7 L.Ed. at 502.
The statement of the majority opinion therefore, that,
"we reaffirm well-established constitutional principals
protecting property interests from confiscat.ion" is
ill-founded insofar as it applies to Class I streambeds. The
adjoining property owners have no ownership interest in the
streambeds of Class I waters and therefore, nothing is being
confiscated. The major premise of the majority opinion is
faulty. When the state legislature acts within its sphere to
regulate the use of property which the state owns, we should
respect the legislative discretion.
111. RIG GAME HUNTING
The majority hold unconstitutional this portion of 5
23-2-302 (2), MCA:
The right of the public to make recreational use of
surface waters does not include, without permission
or contractual arrangement with the legislature
with the landowner:
(dl Big game hunting except by long Inow or shotgun
when specifically authorized by the com.ission;
. . .
It has always been accepted that landowners may give
permission to big game hunters to go on the landowners'
premises for big game hunting. The legislature in the above
statute extended this requirement of permission from the
landowner to the streambeds which the landowners do not own.
If the requirement for the landowners' permission were being
attacked by a water recreational user we might have reason to
declare that portion of the statute unconstitutional except
for the fact the Department of Fish, Wildlife and Parks in
any event has the right to control big game hunting. The
statute confers no right to big game hunting or streambeds
except by permission of the landlord. There is nc.
unconstitutionality inherent in the provision.
IV. OVERNIGHT CAMPING AND DUCK BLINDS
What is said foregoing about the right of the state to
control streambeds, particularly under Class I lands, would
indicate that the legislature has a perfect right as owner to
permit any sort of lawful activity on the portions of the
lands that it owns. The majority finds that permitting a
water recreational user to roll out his sleeping bag or set
up his pup tent overnight is "overbroad." Yet, these are
legislative decisions, made by the legislature after public
hearings and discussion. What was done was the legislature's
business and not ours.
V. THE RIGHT OF PORTAGE
The legislature provided for portage, at the same time
as it defined recreational uses, by enacting § 23-2-311, MCA.
Paraphrasing that statute, the recreational user of surface
waters is empowered to portage around barriers in the least
intrusive manner possible, avoiding damage to the landowner's
land. The landowner is permitted to create barriers across
streams for land or water management or to establish boundary
fences. No right of portage is granted. if the barrier does
not interfere with the public's use of the surface waters.
Either a recreational user or a landowner may request a
porta.ge route around or over a barrier to avoid damage to a
landowner's land. If an artificial barrier is placed by the
landowner, the cost of establishing a portage route is borne
by the landowner. If the barrier is not of the landowner's
doing, the Department of Fish, Wildlife and Parks pays the
cost of the portage route. Once established, the Department
must maintain the portage route. An arbitration panel is
provided for in case the landowner or recreationalist
disagree. The portage route is the exclusive means to
portage over and around the barrier. No attempt was made by
the legislature to establish porta-ge routes for natural
routes, as distinguished from artificial barriers.
Again, without distinguishing Class I waters, and
without substantial discussion of the difference between
Class I and Class I1 waters, the majority finds the
provisions of 23-2-311, MCA, unconstitutional, insofar as
the landowner must bear the cost of constructinq a portage
route.
The effect of this portion of the majority opinion is to
give the landowner the go-ahead to construct artificial
barriers across navigable waters which impede recreational
use without cost. What we have said foregoing with respect
to title serves to refute any possible logic in that
pas?-tion.
VI. CONCLrUSION
I would uphold the constitutionality of the statutes in
toto. The legislature, cognizant of its ownership rights and
its duties as trustee of the public acted within its
legislative discretion in adopting the statutes. There is no
sound basis for our interference. .
I
1'
, I C f L L I2 &&
f
Justice