Not too long after I moved to Montana, I went fishing on a small river that borders the town where I live. It was Easter Sunday, 2003. I accessed the stream at a bridge on a public road and I walked downstream below the high-water mark, being careful to follow the rules. As I stood beside a sweeping riffle-corner, working the slow water on the margins, a four-wheeler approached well above me on the far bank. I had been warned about this landowner, so I set my jaw, rolled my shoulders back, and kept fishing. He parked directly across from me; less than twenty feet separated us. I raised my hand in a salutary gesture, but he did not return the wave.
“If you want to continue to fish my land and keep your fishing license, you will stay below the high-water mark.”
I let my line drag through the tail-out and looked up at him.
“Of course I will. I have no intention of trespassing on your land. But this . . .” I pointed to the river and the gravel bar where I stood, “. . . is public land and I have every right to be here.”
I figured this was my chance to make this guy look like an ass. I wanted to let him know that he couldn’t intimidate me while I was within my rights. I locked eyes with him and spoke with syrupy sarcasm.
“I see you guys are stringing fence. I’m not working today, just fishing. I’d be happy to give you a hand if you have a spare pair of gloves. I need an extra-large though.”
I held my palm wide and flashed a self-satisfied smile. I had him.
He glared and slowly moved his right hand. That was when I noticed the shotgun across his lap. After stroking the firearm a few times, he spun out his four-wheeler, spit gravel into the holding water, and went back to his fences.
I have told that story for years as an illustration of the “evil” landowners in Montana who want to block legal access to public resources. It’s a dinner-party standby: everyone understands who the good and bad guys are and it reflects well on me. I followed the law, kept the high ground, and was met with a shadowy threat. The subtext of that story is that landowners are greedy and sinister; anglers are just and righteous.
Over ten years and millions of dollars in legal wrangling later, I arrived at a satellite meeting of the Montana Supreme Court to hear, yet another, case about stream access law. The room was packed well beyond fire code and the young police officer charged with keeping the exits clear was constantly busy. This most recent case involved the legality of just one small bridge that crosses the Ruby River. The landowner in the case was no stranger to stream access battles; Jim Kennedy’s legal team was back at it again. The spectators numbered in the hundreds.
After the arguments, I stood outside to interview the milling crowd. I flippantly assumed that most everyone was there to stand up for public rights; that all these people wanted to show the greedy, evil landowners that Montanans intend to protect our culture and our waterways. I did hear plenty of that but also got some unexpected stories. Those ones have stuck with me.
One guy passed through the doors, a little stooped and shuffling. I politely stopped him and asked if I could take a minute of his time. He was dressed in clean Wranglers, cowboy boots, cowboy hat, and a pearl button shirt. His belt-buckle was the size of a small serving platter, recently polished. When I asked him why he came, I expected to hear how he wanted protect Montana from rich out-of-staters. Instead, he told me how “damn glad” he was to hear someone standing up for private property owners.
I almost balked. He continued.
His ranch has been in the family for five generations, a source of obvious pride. Until recently, the last decade or so, he never had any problem with fishermen. Guys used to come up to the house and ask permission to fish the creek that runs through his pastures, and he was always happy to grant it. Sometimes, after they were done fishing, the guys would come back and they would share beers or a little whiskey, shake hands, and go on about their evenings. He met some good friends that way.
“It ain’t like that anymore,” he told me. “Now they just come up from the county road right through my land like they own the place.” When he approaches them to talk, they just “flip the bird” and fail to show him basic respect. He has already received two citations for harassing anglers.
“I’m eighty years old! What the hell am I gonna do to anybody? I’m just damn sick and tired of all these people coming out here and treating my property like a public park.”
I liked the guy immediately. He was frank, funny, and unpretentious. He could laugh at himself while making a serious point; he upended my assumptions about landowners who opposed stream access. I met quite a few others outside the court hearing who agreed with him and none of them fit the category of wealthy out-of-state weekenders looking to buy up prime streamside real estate and hoard it for themselves. My simple narrative eroded. I was forced to rethink this whole problem.
Of course, I should have known that the story was never as simple as I had framed it. And this framing, this caricature of the opposing sides dressed as heroes and villains, is not helping the problem at large: Lots of people are competing for limited resources, more every year.
More than nine months later, the Montana Supreme Court ruled on the case. They, once again, stringently upheld the precedent of stream access in my state. This is well and good; it’s a win for anglers and for the public, but this fight is not going away. Less than a month after that decision, Jim Kennedy, the landowner on the Ruby who is at the center of this battle, had his legal team file a petition for rehearing to the state Supreme Court. The wording in this petition makes it very clear that he intends to move this up the ladder to the United States Supreme Court. He claims that the Montana Stream Access Law conflicts with the Fifth and Fourteenth Amendments to the United States Constitution.
This isn’t going away.
My conversations outside the last state Supreme Court hearing have convinced me that if we anglers continue to rely on legal shielding and treat landowners as the enemy, we are destined to lose this battle.
The United States holds private land ownership in the highest regard and Montana in particular has a bright streak of libertarianism that glows vibrantly. If this continues to be an “us versus them” battle, we will lose. It may take a long time, but I see it as inevitable. If we want to retain the rights we currently have, to access the rivers and streams that sustain us, we need to stop taking that access for granted. And by that I don’t just mean contributing to PLWA (the organization that has single-handedly created and upheld our stream access law and who does so entirely on donations), I mean amending our attitudes and conduct. Instead of giving the evil eye and looking to pick fights, we need to extend our calloused hands. The vast majority of the landowners in this state are not the “greedy out-of-staters”; they’re old-school ranchers with more stories and local knowledge than you could ever hope to hear.
If we want to make meaningful, long-term headway toward securing public access to flowing water, we need to mend some fences, both literally and figuratively. I should have been more genuine when I met that landowner a decade ago. I actually should have tried to help him get some work done that afternoon instead of trying to make a point and ratchet up the tension.
There are so many trout streams in this state, you won’t stomp through all of them in a lifetime. I encourage you to explore lesser-known waters but when you walk onto a no name creek that runs through private property (as most of them do), take the time to knock on a couple of doors and introduce yourself, even if a county road provides legal access. Think about stopping back at the ranch when you’re done and offering a beer or two. Ask the family if they like trout, maybe bring back a pan-sized brown. No, you are not required to do so by law. For now, you have every legal right to walk into that streambed and go where you please below the high-water mark. You can even flip off the landowner if he hassles you, or you can take the higher-ground and possibly forge a necessary ally. A moment of humility may be temporarily uncomfortable but valuable in the long-term.
We may continue to survive the legal challenges to stream access in Montana but only if we have the cultural core of this state on our side. If we make enough landowners into enemies, we will lose our access.
This article originally appeared in The Drake Magazine.