Does the due process clause protect property?

February 1, 2003

By William Perry Pendley
President and Chief Legal Officer
Mountain States Legal Foundation

In 1985, Montana's Legislature enacted a Stream Access Law that opened
private property to public entry for the undefined, but broadly-inclusive,
purpose of "recreation."

Specifically, the Act declared that although the
land beneath and adjacent to non-navigable streams is private property, any
member of the public desiring to recreate on such streams could go onto
private property to do so.

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 and
wildlife, were trampled.

Trickling streams near urban areas became hangouts for drunks and drug
addicts -- one elderly woman feared approaching the brook
on her lot where her grandchildren played. They play there no more!

Perhaps the most outrageous abuse occurred during the horrific wildfires of
2000, when hundreds of thousands of acres were in flames.

The fire danger was so extreme, throughout Montana, that all federally- and
recreational lands were closed -- every park and every forest.

Remarkably, newspapers across the state told their readers who wanted to
recreate to
use privately owned land.

Under the Stream Access Law, the media advised, landowners could not stop

In May 2000, several Montana landowners -- some direct descendants of the men
and women who settled Montana in the 1800s -- challenged the Stream Access
Law's constitutionality.

They did not seek "just compensation" for the taking of their property -- the
time for that had long since expired -- but
sought instead invalidation of the law as contrary to the Due Process

They argued that the "due process of law," without which they could
not "be deprived of life, liberty, or property," required that Montana
demonstrate a rational basis -- or even, given that property is a fundamental
right -- a compelling governmental interest for denying them the most basic
right of every landowner: the right to exclude others.

No reasons cited by Montana or environmental groups met either test.

In January 2001, the Montana federal district court granted the motions
filed by Montana officials and a host of environmental groups, which had
lobbied for the "right" of all citizens to access whatever stream they

Relying on a ruling by the Ninth Circuit Court, the district court held that
the landowners' only constitutional remedy was to seek "just
compensation" for a "taking" of their property for "public use."

Their case was dismissed.

On December 23, 2002, the Ninth Circuit, relying on one of its earlier
rulings, upheld the district court's decision. The Ninth Circuit held 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.

The Ninth Circuit's ruling means that no property owner may challenge the
authority of a unit of government to
regulate or seize his property as a violation of the Due Process Clause;
the owner may seek only just compensation.

Thus, the Ninth Circuit has read (removed) the words "property" and "public
use" out of the Due Process Clause.

These brave landowners -- who had the courage to expose themselves to the
vitriolic attack leveled against them by opponents of private property,
leftists in the media, and the environmental movement -- believe that the
Ninth Circuit's ruling is wrong.

They intend to seek Supreme Court review.

However, the Supreme Court's pronouncements on the relationship between the
Takings Clause and the Due Process Clause have not been the epitome of

Nonetheless, not even the curious and often convoluted rulings of the
Supreme Court on this subject lend any support to the Ninth Circuit's
evisceration of the Due Process Clause.

Today the Ninth Circuit is famous as the most frequently and consistently
overturned of the federal appellate
courts, often with unanimous Supreme Court rulings.

Its ruling on Montana's infamous Stream Access Law could be next.


By William Perry Pendley
President and Chief Legal Officer

Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, Colorado 80227



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