In Montana, water belongs to the public
The recent Montana Supreme Court hearing in Bozeman contained the following claim by an attorney representing James Cox Kennedy in reference to the water in the Ruby River running through his ranch.
His attorney claimed that the landowner not only owns the land under the river but the river itself as well as the air above the river.
He was immediately challenged by one of the justices who asked if he believed that the definition of water ownership in the Montana Constitution was unconstitutional. He answered, “Yes.”
Following is what the Montana Constitution says about the water in our state.” All surface, underground, flood and atmospheric water are property of the state for the use of the people.”
Anyone acquiring land in Montana should be aware of this proclamation. Basically, water in its natural channel belongs to the public. Only after it is diverted for beneficial use as part of a valid water right does it transfer to private ownership.
Public water runs through private land throughout our state. The Montana Supreme Court saw fit to allow the public to enjoy the use of their water along with their fish by allowing anglers and others to move up and down the stream below the high-water mark. The court applied this to all streams in the state large enough to support water-based recreation. The Legislature of 1985 passed legislation consistent with the court’s findings.
Perhaps those who are unhappy with this situation should move to another state.
John Gibson,President, PLWA – Billings
Column’s ripple effects
I recently finished reading in the Tribune James Huffman’s take on the Montana Supreme Court hearing regarding stream access in Bozeman on April 29.
For the life of me, I can’t see where he gets the idea that this law is a -massive land grab.- As I read the U.S. Supreme Court Decision in the Pennsylvania Power and Light case he references, the court said the state of Montana cannot claim an entire river as navigable if portions of it are not capable of navigation. The decision did not say the entire river was, therefore, non-navigable.
As president of Public Land and Water Access, I don’t see any attempt by the state to claim ownership of additional land under rivers, nor do I see where the U.S. Supreme Court decision in the PPL case damaged the underpinning of the Montana Stream Access Law. This law is based on the fact that citizens own the water in the river and can recreate there.
If the Montana Constitution - approved by the citizens in 1972 - is found to be unconstitutional, and the public does not own the water then who does? What would such a finding do to water right holders downstream of the first so-called owner? Who would be responsible for private water flooding? The good professor had better take an antiparanoia pill.
- John Gibson, Billings
Great Falls Tribune 05/17/2013