Years ago, a California friend of some means sought a ranch in Montana where he could raise buffalo and enjoy the wide-open spaces far from strangers. Late one night, he found himself in a cowboy bar with his realtor mulling over the properties they had seen and the ones lined up for the next day. Out of the blue, the realtor, a Montana native, brought up the Montana Stream Access Law, which prohibits owners from excluding anyone seeking to recreate in and along the non-navigable streams, including the stream bed that they own and abutting their property.
“You mean,” sputtered my friend, slamming his beer on the bar, “someone can wade right up to the river’s edge and come up onto my land?”
“Yup, if that’s what he takes a hankering to do. All the way up to the high-water mark, which in some ranches in Musselshell County, is next to the barn.”
HOUSE OVERSIGHT COMMITTEE INVESTIGATES DC PROFITING FROM FORECLOSURES
“I’m done with Montana,” the Californian replied, motioning for the tab. “I’m off to Wyoming.”
My friend’s experience in Big Sky Country — he did buy a spread in southern Wyoming where he ranched happily for decades — came to mind earlier this month on reading an article in the Wall Street Journal about a property dispute possibly headed to the Wisconsin Supreme Court.
Paul Florsheim, a retired University of Wisconsin-Milwaukee professor and heir to the Florsheim shoe fortune who owns property on Lake Michigan, enjoys shoreline walks with his dogs. When he nears the shorefront property of Illinois dentist Daniel Domagala, however, Florsheim and others beach walkers encounter signs posted by Domagala that proclaim, “PRIVATE PROPERTY BEYOND THIS SIGN” and “ONLY WATER ACCESS BEYOND THIS POINT.” In fact, Wisconsin law, determined by its Supreme Court in 1923, provides that riparian owners, such as Domagala, have “absolute ownership as against all the world” of their beachfront property.
As a result, when Florsheim refused to pay the $313 Village of Shorewood fine for trespassing on his neighbor’s property, he took the matter to court (“My personality is such that if I’m confronted with it, I don’t back away from that.”), calling his father as a character witness. Domagala, a witness for the Village, testified that people lounge on his property, only 50 feet from a public beach, “like they own the place.” When cross-examined by Florsheim, he testified he never gave the clinical psychologist permission to come on his land: “Imagine somebody is in your house saying this is not your house.”
Florsheim lost after the municipal judge held she was bound by the 1923 precedent, paid the fine, but vowed to appeal, this time represented by an environmental group.
Wisconsin landowners hope they fare better than landowners in Montana. There, after its Supreme Court, sua sponte, created the Stream Access Doctrine and the state legislature codified it, landowners sued, but lost, given that it was years before the Supreme Court held for property owners in a similar situation in California. In early 2000, I filed a lawsuit for three families that were descendants of homesteaders. However, in a dubious ruling, the U.S. Court of Appeals for the Ninth Circuit held against them. Specifically, the Ninth Circuit read “property” out of the due process clause by holding that, because the Fifth Amendment grants property owners the specific right to just compensation if their property is taken by governments, the more general protections afforded “life, liberty, [and] property” by the due process clause are null and void.
After that litigation, I received a letter from an elderly Bozeman woman who, 35 years earlier, invested her life savings in a small home on 50 acres, with an ankle-deep creek flowing through it. A good steward, she eschewed chemical sprays, protected wildlife, prevented erosion, and gave permission to any stranger who wanted to fish on her property. Then came the Stream Access Act:
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“[Now] the public is allowed to wade down [our] and similar small streams into people’s back yards at any time, bringing their dogs and stereos. [They] have beer parties, eat picnic lunches, sleep or even camp without permission…. It’s almost as if a public highway had been opened up through people’s backyards…. [W]ho is going to pay for cleaning up the beer cans and picnic leavings and other trash on our half mile of stream and who will build up the banks to prevent erosion and flooding if it is public property? I am a senior citizen and I like to walk in the bottomland of our property but now I’m almost afraid to go alone for fear of encountering drifters lounging (doing drugs or drinking) in the dense trees and shrubbery along the stream. I’m also afraid to allow my own young grandchildren to play freely down there.”
Her sad fate may await Wisconsin landowners.
William Perry Pendley, a Marine, Wyoming attorney, and Colorado-based public-interest lawyer for three decades with victories at the Supreme Court, served in the Reagan administration, and led the Bureau of Land Management for President Donald Trump.