Mitchell Slough back in the news

ScottPScottP Senior MemberPosts: 480 Senior Member
Looks like Huey Lewis and Chuck Schwab are raising the stakes.

http://falsecastsflattires.com/2012/01/26/this-wont-happen-anymore


Regards,
Scott
They say the times are changing but I just don't know

Replies

  • swizzswizz Senior Member Posts: 2,550 Senior Member
    This article was written by a kind-hearted soul who is ignorant of land "rights".
    Here is a quote from the article that sums up the ignorance well: "The public’s right to legally recreate on public water vs. landowners protecting their property and the water that runs through it."

    Recreational fishermen have no "rights" to land use, their recreational use is legally defined as a "privilege" and thus... at the mercy of many agencies, landowners, and commercial operations who clearly have legal precedence. Recreational users may challenge this as much as they like, but will lose every time... guaranteed.
    Professional or commercial fishermen have "rights" but recreational fishermen have no more "rights" than recreational butterfly collectors.
    Commerce, land ownership, and Constitutional laws trump "recreational" use every time.
    The guy who wrote this article means well, but laws and facts are clear.
    All of your Trout are belong to me.
  • NZ IndicatorNZ Indicator Senior Member Posts: 9,707 Senior Member
    Unless I'm interpreting things wrong, Montana recreational fisherman do have rights to land use up to the ordinary high water mark. Am I missing something here Swizz?

    http://fwp.mt.gov/fwpDoc.html?id=24929

    I know Colorado and Wyomings laws concerning this are much different.
  • swizzswizz Senior Member Posts: 2,550 Senior Member
    If MT's "state" law is ever challenged by the Feds..... MT would lose.
    Constitution and Fed trump State.
    Much like the CO 'state law' proclaiming the legalities of marijuana. Colorado says yes to weed, the Feds say no.
    Feds appear to turn a blind eye but every time they come in and enforce Federal drug laws here (and they do), they WIN legally in the Federal court of law.
    You can cling to the premise of State laws being legitimate and protective of privileges, but Feds have the final say regarding rights.
    All of your Trout are belong to me.
  • TomTom Senior Member Posts: 253 Senior Member
    While I agree that the author of this blog is a kid who only knows enough to be dangerous, you are wrong that MT's access situation is unconstitutional. MT's supreme court found a public EASEMENT, a valid state based property right, to montana's rivers. Whether that easement is based on recreational or commercial use is irrelevant. Its status as a valid property right is the only relevant factor. The feds consistently recognize state based easements over their property; I see it ALL THE TIME in my work here in MT. Legally speaking, there is no difference btw my right to walk a river in MT, an irrigator's right to cross another's land on his ditch easement, and your right to walk down a sidewalk easement. They are all valid property easements, deserving of equal protection under the law, including the federal constitution.
  • swizzswizz Senior Member Posts: 2,550 Senior Member
    aaahhhhh... the old easement loophole. Perhaps in MT, but it doesn't fly here.
    It's refreshing to hear from an esteemed and emboldened trooper such as yourself exercising your state recreational privileges.
    Carry on, it's only a matter of time..... many CO,CA, and TX folk are interested in scooping up some of MT's beautiful land. Money talks, it certainly does here in CO and the disease is spreading. Best for ya'll not to become complacent with your current recreational privs.
    oopps.. nevermind, I "don't know what I'm talking about".
    We lost ours in a heartbeat.
    All of your Trout are belong to me.
  • TomTom Senior Member Posts: 253 Senior Member
    ...we already rode that colorado **** reid rosenthal out on a rail. LAst I heard, he was up in AB trying to pull the same crap up there. If outtastate jerkfaces cant follow MT's laws, they arent welcome, and they too will be run out on a rail. That is kind of what this post is about. But, if u read my post on the drake, this isnt an access issue, and im not convinced any laws were broken. Its a streambed disturbance permitting issue (310 permit) and whether the permit, properly granted under law, was exceded in scope.
    aaahhhhh... the old easement loophole. Perhaps in MT, but it doesn't fly here.

    It isnt a loophole. Its a property right, vested in the public, recognized and confirmed by our state supreme court, while interpreting our state constitution, and regulated by the state thru our stream access law and FWP.

    As far as CO is concerned, you guys had a chance too, back in 81 or whatever, but yall blew it. Im sure you had old timers who would have come forward too, and the **** hadnt been there that long back then. Unfortunately, ever since, CO landowners have been more keen on asserting exclusive control over the rivers, making it more and more difficult to argue such an easement still exists. You gotta use a prescriptive easement, fight for it when its challenged, or you will lose it. But that doesnt mean that ours wasnt fully and legally established back in the 80s, when a busload of oldtimers laid out how it used to be for our courts, and established an uncontrovertable prescriptive use easement for every bit of natural water in this state that holds fish.
    We lost ours in a heartbeat.

    At least now I know why you are being so acerbic about this, but dont go raining on our parade just cause yours got cancelled 30 years ago. And who knows, maybe youll get a bunch back if MT wins the most recent round in this fight. But youre still gonna have to fight for it, river by river and probably reach by reach.
  • swizzswizz Senior Member Posts: 2,550 Senior Member
    ok... good luck with that
    All of your Trout are belong to me.

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