In Montana, Stream Access Is on the Ballot
Greg Gianforte, the Republican candidate for governor, threatens the state's unique angler-access regulations
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Montana’s stream access law grants anglers, floaters, and other recreational users the ability to access most rivers, creeks, and streams—even where they flow through private property. (This is not always the case in other states.) It’s one of the things that makes Montana such a uniquely special place to live, but it’s threatened by the state’s Republican candidate for governor, Greg Gianforte, and his potential lieutenant, Kristen Juras, should they be elected. Such a move would represent an unprecedented assault on public access, threatening jobs that rely on outdoor recreation and even potentially impacting the state’s booming outdoor-recreation economy.
Between High-Water Lines
The 1972 Montana constitution established state ownership of waters within its boundaries. This was further clarified by two state supreme court cases in 1984, leading to the passage of the definitive stream access law in 1985. It states:
“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.”
Montana Fish, Wildlife, and Parks goes on the specify: “The public may use rivers and streams for recreational purposes up to the ordinary high-water mark. Although the law gives recreationists the right to use rivers and streams for water-related recreation, it does not allow them to enter posted lands bordering those streams or to cross private lands to gain access to streams.”
Another law, passed in 2009, confirmed that the public can access streams using state or county roads or bridges. It allows landowners to fence up to those bridges to control their livestock, and it also supplies public funds for the installation of gates to provide public access. Landowners may run fences across waterways, and the law gives the public the right to travel around such barriers, provided they do so “in the least intrusive manner possible.”
What all this adds up to is a best-case scenario for public access. Your right to access a river or stream is protected, even if it flows through private property. The rights of private landowners are also protected, as the public is only able to access rivers and streams within the water’s boundaries, via roadways that intersect them, or through established easements.
“Montana’s stream access law—like our public lands—is about who we are as Montanans,” lieutenant governor Mike Cooney wrote in an email to Outside. “You don’t have to be a multimillionaire to fish on our blue ribbon trout streams.” Cooney, a Democrat, is also running for governor.
Of course, the stream access law has been challenged multiple times by those multimillionaires. And one of those lawsuits came from governor candidate Gianforte.
Follow the Money
In 1997, Gianforte, then a recent Montana transplant, cofounded a customer-service software company with his wife, Susan, called RightNow Technologies. In 2011, RightNow was acquired by Oracle for $1.8 billion, netting Gianforte $290 million. Montana senator Steve Daines was employed by RightNow at the time.
The Gianfortes established a charitable family trust for the primary purpose of promoting their conservative Christian agenda. Money from the Gianforte Family Foundation has gone to everything from anti-gay-marriage to anti-abortion causes and also to support their young earth-creationist beliefs. This foundation also backs anti-public-lands and anti-public-access causes.
Between 2007 and 2013, the Gianforte Family Foundation donated $27,500 to the Foundation on the Economy and the Environment (FREE). FREE advocates that the ownership of national forests be transferred to extraction interests. It’s also funded by the Charles Koch Foundation, a pro-oil drilling trust from Texas.
In 2013 and 2014, the Gianforte Family Foundation contributed $1,150 to Americans for Prosperity and listed the organization as a “grantee.” Politico describes Americans for Prosperity as the “Koch brothers’ main political arm.” It lobbies for the privatization of public lands to benefit the oil and gas industries.
Between 2015 and 2017, the Gianforte Family Foundation gave $3,000 to the Property and Environment Research Center. Based in Bozeman, Montana, PERC advocates for a free-market approach to environmental problems; in short, it argues that conservation is better handled by private landowners than it is by the government, often taking that to an extreme degree. In 2015, its executive director authored an op-ed in The New York Times calling for the dissolution of America’s national parks. PERC has fought against the Montana stream access law since the early 1980s.
Gianforte in Congress
Following a failed 2016 gubernatorial campaign, Gianforte won the congressional seat vacated by Ryan Zinke when Zinke became interior secretary in 2017.
There, in collaboration with Steve Daines, Gianforte introduced legislation to strip protections from 700,000 acres of public land in Montana. The measure failed, but according to the Missoulian, it would have been “the single biggest rollback of protected public lands in Montana history.”
Gianforte has since voted against conservation and environmental protections on 85 of 88 occasions, netting him a 5 percent lifetime score from the League of Conservation Voters.
While serving in Congress, Gianforte expressed support for William Perry Pendley’s tenure as acting director of the Bureau of Land Management.
Last year Gianforte stated that he was “optimistic about working with Mr. Pendley to promote Montana’s interests.” And in July, Gianforte said he was “pleased” by Pendley’s nomination to officially run the BLM. That nomination was withdrawn two weeks later, when GOP senators in vulnerable seats apparently complained about being forced to vote for such an unsavory character. In 2001, Pendley sued Montana in an effort to overturn the stream access law. But last month, Pendley’s acting status was ruled illegal after current Montana governor Steve Bullock challenged his anti-public-lands actions.
Gianforte is running for governor alongside Kristen Juras, a lawyer from Great Falls. And her record on the stream access law is almost as troubled has her running mate’s.
When Juras faced criticism for her anti-stream-access-law actions while running for a seat on the Montana Supreme Court in 2016, she authored an op-ed for the Helena Independent Record in which she called the law “settled,” praised its balance between public-access and private-property rights, and claimed that her critics were “yelling wolf.”
Those critics have reason to worry. The most significant challenge brought against the stream access law came in 1987 from rancher Jack Galt, Juras’s uncle. The state supreme court upheld the law, but its ruling represented the most significant diminishment of public rights under the law to date. A commonly understood interpretation of the law that allowed camping below the high-water mark was determined to be “overbroad and unconstitutional,” according to a 2010 essay that Juras wrote on the topic. In that same piece, published in the Vermont Journal of Environmental Law, Juras went on to argue that landowners should have the “right to exclude” access, moving ownership of the state’s waters out of public hands and into those of wealthy landowners.
“Attempting to whitewash your record and your stance on public access just because you know it’s popular among us voters is unacceptable,” Kendall Van Dyk, a former state representative and senator, wrote of Juras in 2016.
On the East Gallatin
In 2009, East Gallatin LLC, a financial vehicle owned by Gianforte, sued Montana Fish, Wildlife, and Parks, arguing that an access easement to the East Gallatin River through the property where the Gianfortes live was invalid, since it had been negotiated with a previous owner of the property. It also argued that users of the easement were causing unspecified damages to the property. A fence was installed to block public access before the suit was filed.
The matter was resolved out of court, with Montana Fish, Wildlife, and Parks returning the fence to its previous boundaries, conducting mitigation work to prevent the spread of weeds (possibly the damage cited in the suit), and restoring public access. You can visit and fish Gianforte’s property to this day, as you can on any other river or stream in the state.
“I’ve been very clear all along that public lands must stay in public hands,” Gianforte said on Montana Public Radio in 2017, one year before he wrote the legislation that would have stripped protections from hundreds of thousands of acres of state public land.
Lieutenant Governor Cooney, noting the $7.1 billion and 71,000 jobs that “depend on our ability to access public lands and streams,” is standing behind the law. “Anyone who wants to mess with that will have to go through me first,” he warns.