Feed on

The states are also eroding the tradition of respect for private property, just like their Uncle Sam has been doing for centuries. This Mitchell Ditch case in Montana just came to my attention:

The Montana Supreme Court ruled here recently that the 16-mile-long stream, Mitchell Slough, is open to the public and that the landowners are not entitled to fence it off as part of their private sanctuaries.

Since the landowners there tend to be really wealthy, I do not think there is any public sentiment toward them. However, they bought these properties with the expectation that the land was fully private. Now that people may freely trespass on their property, the value of their property is lower. Will the state compensate them? Of course not. What if the same thing happened in an inner-city, would there be no public outroar? By virtue of being successful are you less entitled to having your rights protected? Apparently so.

This was done in the name of public access, but have the Supreme Court justices considered the long term consequences on the health of the stream? After all, private landowners have a huge incentive to maintain stream flow and quality. In fact, after years of reduced stream flow due to irrigation (no doubt via subsidized water programs), private landowners have been taking measures to make sure the stream remained healthy:

Mr. Siebel, who has lived here for 29 years, said he had spent millions rebuilding, narrowing and deepening the slough. “I’ve put time and energy and love into the property,” he said, “and it’s all gone. And it’s a shame.”

Do you think private landowners have the same incentives after this ruling? And do you think the public anglers will be able to do anything to keep the stream healthy and moving? No – the public is not allowed to get above the high water line anyway.

And the topper for me is the utter contempt and lack of respect the authorities do seem to have for private landowners:

…A home belonging to Anthony Marnell II, the head of a casino construction company, is built over a tributary to Mitchell Slough. Robert N. Lane, the chief legal counsel for the Montana Fish, Wildlife and Parks Department, said he thought the public would soon be able to gain access to fish the tributary.“I guess they’ll have to portage around his living room,” Mr. Lane said of Mr. Marnell.

If the state wanted these lands to remain in the public domain, then fine. They should have purchased the land before it was developed and then turned it into a park. Or they could have sold the development rights to a group or private individual under conditions that the stream remain accessible. But none of that happened. You may not see this as an important case, but it is yet another chunk taken off the formerly solid foundation of property rights we had in this country. If you have an expectation that some of your property – be it physical or otherwise – might be taken, be reduced in value, or otherwise changed, what incentives do you have to pursue that property or to maintain it?

Leave a Reply