Property rights are for everyone

2013-04-25T09:00:00Z Property rights are for everyoneGuest column by TERRY L. ANDERSON
April 25, 2013 9:00 am  • 

On April 29, the Montana Supreme Court will convene at Montana State University to hear the case of Public Lands Access Association, Inc. v. The Board of County Commissioners of Madison County, et al. This hearing will afford all MSU students, whether from in-state or out-of-state, an opportunity to see our justice system in action.

The openness of our legal system is especially important in this case. The plaintiff, now calling itself the Public Lands/Water Access Association, challenges the legality of Madison County’s resolution to permit James Kennedy, a landowner from Georgia, to attach a private wood rail fence to a bridge across the Ruby River.

Beyond the legal technicalities, this case is about the rights of a private landowner to limit access to his property. PLWA portrays itself as David – a local, citizen sportsmen group – against Goliath – a wealthy, out-of-state landowner. In fact, this is a long-standing campaign by the association, dressed up in public-interest clothing, to gain access to waterways across the state even if access means trespassing. Since the stream access judicial and legislative battles began in the 1980s, the question has been whether public access constitutes a taking of private property rights without compensation.

Secure private property rights are the bulwark of equality and justice in the United States. The blindfolded statue of Lady Justice holding her balance symbolizes our rule of law. Ours is not justice for hunters versus bird watchers, poor versus rich, or Montanans versus Georgians; it is “justice for all.”

Moreover, private ownership is the key to good resource stewardship, something we all want to encourage. Put it this way: no one washes a rental car – except the rental car company. Across Montana, private landowners provide habitat for big game, birds, fish and plants, and open spaces that we call Big Sky Country. With 66 percent of all Montana land and an even greater percentage of riparian land under private ownership, no one, not even members of PLWA, doubts that private owners provide fish and wildlife habitat, which benefits all of us.

Lest you doubt the pernicious effect that taking property has on habitat, consider what happened when the Bitterroot River Protective Association led the battle to access the Mitchell Slough, again pitting local, citizen sportsmen against rich, out-of-state landowners. The privately reclaimed waterway, once a ditch, was managed for both fish and irrigation. Because it became such a good fishery, it attracted the attention of the BRPA, which challenged the rights of landowners to restrict public access.

After the BRPA won its access challenge in the Montana Supreme Court, ditch owners stopped managing for fish and now manage only for irrigation, shutting off the water in the winter, leaving fish high and dry. Yes, BRPA “won” the right to access the public’s water by walking on the privately owned beds and banks of the ditch, but we all lost the fish habitat that private owners created.

The great conservationist Aldo Leopold underscored the importance of a “land ethic,” but he also understood incentives. As he put it, “Conservation will ultimately boil down to rewarding the private landowner who conserves the public interest.” Or rephrased in the context of stream access, habitat destruction will result if we penalize the landowner by taking his or her private property without due process and just compensation.

After co-authoring a “friend-of-the court brief” in the Madison County case, I received an unfriendly note telling me to “leave the public’s stream access law alone. This is Montana not Atlanta and we treasure our Treasure State.” As a native, citizen, homeowner and sportsman of Montana, I do treasure our Treasure State, which is precisely why I hold the constitutional protection of private property in the highest regard. Without it, our economic and environmental treasures are in jeopardy. May justice prevail on April 29.

Terry Anderson is president of the Property and Environment Research Center in Bozeman, and a senior fellow at the Hoover Institution at Stanford University.

Copyright 2015 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(6) Comments

  1. claudius
    Report Abuse
    claudius - April 26, 2013 10:57 am
    This dispute has been echoing for literally centuries.

    From an 18th century protest:

    The law locks up the man or woman
    Who steals the goose from off the common
    But leaves the greater villain loose
    Who steals the common from off the goose.

    The law demands that we atone
    When we take things we do not own
    But leaves the lords and ladies fine
    Who take things that are yours and mine.
  2. Dubs
    Report Abuse
    Dubs - April 25, 2013 4:01 pm
    Good point Terry--property rights are VERY important to all Montanans.
  3. The_Boneshackler
    Report Abuse
    The_Boneshackler - April 25, 2013 10:54 am
    How do feel about a Canadian corporation using Eminent Domain to seize private property in order to build a tar sands oil pipeline to the tax-free zone in Texas for export and private profit? Should corporations be allowed to use Eminent Domain to seize private property for private profit even if there is no tangible benefit for the public?
  4. RobertBowling
    Report Abuse
    RobertBowling - April 25, 2013 10:04 am
    I am troubled by the angry reaction private property owners receive from public access advocates whenever an effort is made to protect their rights to possess, control and manage their own property. These advocates need to look around Montana at all of the conservation easements and contributions made by private property owners to the betterment of all Montanans and Americans and towards the protection of recreation, wildlife and open spaces. Bemoaning private property owners and rights, espoucing Socialistic tenets and name calling are not American or Democratic values. We all can agree on the value and virtues of protecting public access to public property. However, the 1984 Montana Stream Access law was contrary to longstanding laws protecting private property rights extending under non-navigable waterways and therefore, contrary to the US and State Constitutions. Under neither can you take private property or rights without tremendous public need AND "fair" compensation. This fundamental tenent of American private property ownership and democracy is one of the things that separates our great country from those our forefather's left for new lands of opportunity. Yes, there are other countries where private property rights can be taken without fair compensation and you can share in the fruits of everyone else's labor. And I hear the fishing is great.
  5. frenchy
    Report Abuse
    frenchy - April 25, 2013 9:51 am
    Private property rights must be protected. I am a land owner and am really getting tired of trespassers. I have yet to prosecute anyone but that time is ending. I have given permission to some people to hunt on my land and most have been respectful and appreciative but some have abused the privilege and were bringing other people and relatives and preventing my own family from enjoying our own land. I am not a rich out of stater. Myself and my family worked hard and sacrificed a lot to be able to buy our property and the general public think they can just climb over my fences and use it like public property. There is a lot more public land in this state than there is private land so there is no reason for trespassing.
  6. The_Boneshackler
    Report Abuse
    The_Boneshackler - April 25, 2013 9:41 am
    Bozeman seems to be a hotbed for Billionaire-funded front groups that are working tirelessly to privatize the commons, transform America into a nation of debt slaves, and cement the rule of the Oligarchs.

    Founded in 1980 and initially known as the Political Economy Research Center, PERC identifies itself as "the center for free market environmentalism". This use of environmentalism in connection with the language of free market economics is now commonplace with a host of similar groups, as if it were a valid form of environmentalism rather than a tactic in the overall strategy for taking control of the public's land.

    PERC links to a long list of the country's most powerful right-wing foundations and organizations committed to deregulation of industry and to the privatization of public assets. PERC's basic premise is that ownership and management of land by government is bad for the environment and that private property rights lead to better "stewardship of resources". The Federal Government is depicted not as an entity "of, by, and for the people" but as something far, far away and characterized by faceless, incompetent bureaucrats.

    PERC advances its agenda through policy analysis, conferences, seminars, internships, books, articles and "education".

Missoulian Civil Dialogue Policy

Civil Dialogue Policy for Commenting on

We provide this community forum for readers to exchange ideas and opinions on the news of the day. Passionate views, pointed criticism and critical thinking are welcome. Comments can only be submitted by registered users. By posting comments on our site, you are agreeing to the following terms:

Commentary and photos submitted to the Missoulian ( may be published or distributed in print, electronically or other forms. Opinions expressed in's comments reflect the opinions of the author, and are not necessarily the opinions of the Missoulian or its parent company. See the Terms of Service and Privacy Policy for more information.

Our guidelines prohibit the solicitation of products or services, the impersonation of another site user, threatening or harassing postings and the use of vulgar, abusive, obscene or sexually oriented language, defamatory or illegal material. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual orientation, disability or other classification. It's fine to criticize ideas, but ad hominem attacks on other site users are prohibited. Users who violate those standards may lose their privileges on

You may not post copyrighted material from another publication. (Link to it instead, using a headline or very brief excerpt.)

No short policy such as this can spell out all possible instances of material or behavior that we might deem to be a violation of our publishing standards, and we reserve the right to remove any material posted to the site.

Add Comment
You must Login to comment.

Click here to get an account it's free and quick