Does the due process clause protect property? February 1, 2003 By
William Perry Pendley 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
and Trickling streams near urban areas became hangouts for drunks and
drug Perhaps the most outrageous abuse occurred during the horrific wildfires
of The fire danger was so extreme, throughout Montana, that all federally-
and Remarkably, newspapers across the state told their readers who wanted
to Under the Stream Access Law, the media advised, landowners could
not stop 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
they could 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
held that 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
the Thus, the Ninth Circuit has read (removed) the words "property"
and "public These brave landowners -- who had the courage to expose themselves
to the They intend to seek Supreme Court review. However, the Supreme Court's pronouncements on the relationship between
the Nonetheless, not even the curious and often convoluted rulings of
the 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 http://www.mountainstateslegal.org
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