Does the due process clause protect property?
February 1, 2003
In 1985, Montana's Legislature enacted a Stream Access Law that opened
Specifically, the Act declared that although the
The abuses of these "no-man's lands" by the public are now well-known.
Scenic river banks were befouled with trash, garbage, and human waste.
Carefully maintained riparian areas, once lush habitat for livestock
Trickling streams near urban areas became hangouts for drunks and
Perhaps the most outrageous abuse occurred during the horrific wildfires
The fire danger was so extreme, throughout Montana, that all federally-
Remarkably, newspapers across the state told their readers who wanted
Under the Stream Access Law, the media advised, landowners could
In May 2000, several Montana landowners -- some direct descendants
of the men
They did not seek "just compensation" for the taking of
their property -- the
They argued that the "due process of law," without which
No reasons cited by Montana or environmental groups met either test.
In January 2001, the Montana federal district court granted the motions
Relying on a ruling by the Ninth Circuit Court, the district court
Their case was dismissed.
On December 23, 2002, the Ninth Circuit, relying on one of its earlier
The Ninth Circuit's ruling means that no property owner may challenge
Thus, the Ninth Circuit has read (removed) the words "property"
These brave landowners -- who had the courage to expose themselves
They intend to seek Supreme Court review.
However, the Supreme Court's pronouncements on the relationship between
Nonetheless, not even the curious and often convoluted rulings of
Today the Ninth Circuit is famous as the most frequently and consistently
Its ruling on Montana's infamous Stream Access Law could be next.
By William Perry Pendley
Mountain States Legal Foundation
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