"The Stream Case"

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IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA

No. 2002-002

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DONALD DEWEY,

Plaintiff and Appellant

v.

STATE OF MONTANA, acting by and through the DEPARTMENT OF FISH, WILDLIFE AND PARKS,

Defendant and Respondent

and

NATIONAL AMPHIBIAN RESCUE CLUB, INC.; DOLLY VARDEN and ASPEN VARDEN,

Defendant-Intervenors and Respondents

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FACTUAL AND PROCEDURAL BACKGROUND:

Part I:

Donald Dewey enjoyed a brief but lucrative career as "Six-Pac," a performer of novelty Country-Western songs. As his career began to slide, he invested his dwindling fortune into a run-down but scenic Montana Dude Ranch on the blue-ribbon Lincoln River.* Discovering himself better at business than music, but missing his old life, he renovated all the guest cabins, then built a state-of-the-art recording studio which soon became immensely popular with many famous musicians, both for the quality of the studio and for the trout fishing.

To create privacy for his clients, Dewey closed off all ranch access to the general public. This infuriated many local hunters and outfitters, used to being allowed access by the previous owners. In retaliation, a local fishing guide brought a raftload of paparazzi down the river. This happened to be when the OutaSync Girls were recording their new CD--and testing their new-found fishing skills while wearing the latest in "summertime" attire. To prevent this invasion, Dewey strung barbed wire across the river to keep floaters away, too. However, the Department of Fish, Wildlife and Parks called Dewey and explained that Montana's Stream Access law allowed public access between the high water marks of the river for "recreational use." Grudgingly, he took down the barbed wire.

Undaunted in his quest to create privacy for his famous clients, he decided to dig a trout pond out of the Burr Swamp,* which was a marshy, low-lying area of the ranch, fed partly by tiny Polliwog Creek. (Except in Burr Swamp, most people could jump across Polliwog Creek with a running start). He dubbed the impoundment "Daisy Pond," and stocked it with lunker hatchery Rainbow Trout. His guests moved their post-recording recreation from the Lincoln River to the pond, screened from the river&emdash;and photographers&emdash;by a thick willow grove.

Polliwog Creek flowed into the Lincoln River about 9 months of the year, but usually dried up below the swamp by August. In the process of digging out the pond, Dewey hit the underground spring which had also been feeding Burr Swamp. Freed of soil and vegetation, the spring began to flow freely into Polliwog Creek, and increased the flow of the creek enough so that it ran year-round. Also as a result, Burr Swamp basically dried out, save for a small wetland in the willows, near the confluence of Polliwog Creek and the Lincoln River.

Part II:

Aspen Varden was the daughter of Dolly Varden, PhD., a renowned fisheries biologist at the local university. Aspen had played in Polliwog Creek most of her life, as her parents lived next door to the ranch and were friends of the previous owners.

Dr. Varden had once done an inventory on the frog population of Burr Swamp as a college undergraduate. Three years ago, just before Dewey bought the ranch, Aspen needed a subject for a Science Fair Project, so she completed a new frog inventory to compare to her mom's earlier records. Her goal was to see if Ozone depletion was harming the frog population. Her project showed a declining population and won her several awards. Inspired, she became an active advocate for frogs, even joining the National Amphibian Rescue Club (NARC).

When Dewey dug Daisy Pond and drained most of the swamp, Aspen was worried. In August, 2001, she decided to go on an expedition to see if creating the pond had wiped out the frogs. She decided that more frog research could also be this year's Science Fair Project.

Aspen knew Dewey didn't let people on his land, but she convinced her mom that she could legally wade up the creek. Dr. Varden warned Aspen, "just remember to stay in the creek and downstream of the pond." She explained to Aspen that the Stream Access law didn't allow Aspen to enter a man-made impoundment of water, nor could she go beyond the high water marks of the stream.

The next day, Aspen walked along the side of the river (below the high water marks) to the mouth of Polliwog Creek, put on her waders, and waded up the creek. She found a few hardy surviving frogs, and had caught two alive for further observation and later release.

Dewey discovered Aspen wading about 100 yards downstream of Daisy Pond. He rudely ordered her to leave. Aspen argued that Polliwog Creek was a Class II Water and under Montana law she had a right to be between the high water marks of the stream. She also pointed out that she hadn't set foot on dry land. Dewey didn't care and became quite angry. Wisely, Aspen left without further argument. Nonetheless, Dewey called the sheriff and signed a complaint against Aspen for trespassing, a misdemeanor.

The community was outraged at Dewey, and the Justice of the Peace for Westslope County dismissed the case.

Fearing hordes of paparazzi wading up the creek in the name of "educational research," Dewey filed a petition with the Fish, Wildlife and Parks Commission to prohibit all research and recreational use of Polliwog Creek. NARC and the Vardens intervened to protect the interests of the frogs and people who studied them.

Dewey made several arguments: First, that Polliwog Creek was an "intermittently flowing natural watercourse" under Mont. Code Ann. § 23-2-302(2)(b), (c) or (g). Hitting the spring was a man-made diversion of water, he argued. (Normally the creek was dry by August and a dry streambed can't be used as a right of way.) Alternatively, he argued that Polliwog Creek was incapable of recreational use under Mont. Code Ann. § 23-2-302(5) and ARM 12.4.102-106. Second, Dewey argued the Stream Access Law at Mont. Code Ann. § 23-2-301(10) didn't allow for educational or scientific uses of waterways, only "recreational" uses. (Further, he suggested frog catching was "trapping," and thus not allowed.)

The Commission, acting pursuant to ARM 12.4.103, summarily dismissed the petition, briefly stating that Polliwog Creek was not an intermittent watercourse, and even if it was, 302(2)(b) only affected Daisy Pond, and 302(2)(g) only applied when the streambed was dry. Next, they declared that that wading was akin to swimming, and frog-catching was a form of fishing, both allowable recreational activities. Further, the Commission agreed with NARC and the Vardens, stating that one student wading in the creek for a few days each summer for research did not exceed the actual capacity of the water, did not cause degradation of the streambed, nor harm the frogs. The Commission suggested that if Mr. Dewey's fears of invading paparazzi came true next summer, he could re-file a new petition and present relevant evidence.

Dewey next filed suit in the 30th Judicial District Court, seeking to override the Commission's decision, and also sought a temporary injunction to prevent anyone from wading in Polliwog Creek. The District Court found for the State on a motion for summary judgment, and Louis Dewey filed this appeal.

QUESTIONS PRESENTED:

1. Is Polliwog Creek below Daisy Pond an "intermittently flowing natural watercourse?" Alternatively, is Polliwog Creek capable of recreational use?

2. Is educational or scientific research a "recreational use" under Montana Law? Further, is frog-catching akin to fishing&emdash;or to trapping?

CONSTITUTIONAL PROVISIONS:

Mont. Const. Preamble

Mont. Const. Article IX, Section 1

Mont. Const. Article IX, Section 3

STATUTES and REGULATIONS:

Mont. Code Ann. § 23-2-301 through -322 (2001) (excerpts)

Mont. Code Ann. § 77-5-302(7) (2001)

Mont. Admin. R. 12.4.101 through 12.4.106 (2001)

Mont. Admin. R. 17.30.602(13) (2001)

(example of acceptable short cite format: ARM 12.4.101)

CASES and OTHER MATERIALS:

Montana Coalition for Stream Access, Inc. v. Curran, 201 Mont. 38, 682 P.2d 163 (1984)

Montana Coalition for Stream Access, Inc. v. Hildreth, 211 Mont. 29, 684 P.2d 1088 (1984)

Galt v. Montana, 225 Mont. 142, 731 P.2d 912 (1987)

41 A.G. Op. 36 (1985)

Fisher v. United States, 534 F. Supp 514 (1982)

NOTES ON AUTHORITIES:

The Montana Stream Access Law is an example of a law which has developed both by judicial and legislative branch action.

Curran and Hildreth interpreted Article IX of the Montana Constitution and established the rights of the public to access the streams of Montana. In 1985, the Montana Legislature enacted Mont. Code Ann. § 23-2-301 et seq., the Montana Stream Access Law, to clarify the rules for recreational use of streams.

Galt and an Attorney General's opinion limited the law. Galt found a few subparts of Mont. Code Ann. § 23-2-302 and -311 unconstitutional. However, the legislature has not acted to change the law, so the unconstitutional provisions are still on the books, but if a real case came up, the courts would probably follow Galt, not the statute.

The Attorney General's opinion specifically addressed trapping. An Attorney General's opinion carries the force of law until or unless it is overturned by either an act of the legislature or by the courts. Because this has not happened here, 41 A.G. Op 36 (1985) is still good law. Although not needed in this case, another opinion, 13 A.G. Op. 48 (2000) states that a member of the public may use a public road or public bridge easement to gain access to streams and rivers.

The Administrative Rules of Montana (abbreviated Mont. Admin. R. or ARM) expand the Stream Access Law as authorized by the legislature. The sections included here outline how, when and why a stream may be excluded from the Stream Access Law.

There is no case law on intermittent streams below a man-made impoundment. The only case law on educational and recreational uses of public lands is Fisher v. United States, which is a federal case which addressed the definition of "recreational use" on public lands, not the definition used for waterways. Attorneys for Dewey will want to show how this situation is different from Fisher (in legal terms, to distinguish the case), Attorneys for the State want to show how it is analogous, i.e. similar to the case at hand.

This case depends heavily on interpreting definitions and the wording of statutes in light of long-established case law. Attorneys for the State want to show that Aspen Varden's actions were allowable recreational activities on a natural watercourse capable of recreational use. Attorneys for Donald Dewey want to show one of two things: 1) that Aspen's research activities were not recreational uses allowed by law or 2) that Polliwog Creek is the kind of surface water where access can be prohibited. The State must win on both issues to keep Polliwog Creek open. Dewey must make good arguments for both issues, but can keep waders out of the creek by winning either issue alone.

Read the definitions and lists in the statutes, especially 23-2-301 and -302, very carefully, they will be important for both sides. The definitions of an intermittent stream and "stream" are not included in Mont. Code Ann. § 23-2-301 et. seq., the Stream Access Law, so definitions from elsewhere in the code have been given for use with this fact pattern.

* Historical notes:

Madison, Gallatin, Smith, and Dearborn were all members of President Thomas Jefferson's cabinet. Lewis and Clark named various Montana Rivers after them. Levi Lincoln was Jefferson's Attorney General and never had a river named in his honor, so we are now remedying Lewis and Clark's omission.

Aaron Burr was the infamous Vice President of Jefferson's first term. Burr's antics were largely responsible for the passage of the 12th amendment, he became notorious for having killed Alexander Hamilton in a duel, and was later charged with treason (but acquitted) for conspiring to form an independent nation west of the Mississippi River.