- [Joe] Just ahead on "Impact."

With a record number of people enjoying the great outdoors, there are contentious views on where the public access ends and private land begins.

- [Speaker] I'm on public land.

Back off.

- You crossed a private road.

- Back off!

- It's the only way in there.

You crossed a road you can't cross.

- [Joe] Montanans are testing those limits.

We'll explore controversial cases and reveal places where the law is murky.

- You have multiple values and interests fighting over a scarce resource and it can make for tough trade-offs and choices and conflict.

- [Joe] And it was a groundbreaking youth climate case, but it hasn't changed the way the state regulates greenhouse gases, at least not yet.

Now the landmark decision is mired in appeals and conflicts.

- Helena doesn't have all the answers.

My agency doesn't have all the answers.

I don't have all the answers.

The ideas of what we could and should do are across the board.

- [Joe] Those stories next on "Impact."

- [Announcer] Production of "Impact" is made possible with support from the Otto Bremer Trust, investing in people, places, and opportunities in our region, online at ottobremer.org.

The Greater Montana Foundation, encouraging communication on issues, trends, and values of importance to Montanans, and viewers like you who are friends of Montana PBS.

Thank you.

- Hello, you're watching "Impact."

I'm Joe Lesar.

Outdoor recreation in Montana is at an all-time high and according to an onX Maps report, 92% of people use public land to do so.

But what happens when public land intersects with private land?

That question is causing disagreements and lawsuits across the state.

And as Montana PBS' Breanna McCabe reports, it's driven by a shared passion for our state's natural resources.

- Hopefully I can catch a fish today.

- [Breanna] Born and raised Montanan Kao Mua isn't deterred by the sign on the bank of the Bitterroot Valley's Mitchell Slough.

He knows the state's Stream Access Law gives him the right to wade these waters, even though they run through private property.

- [Mua] It gives us the opportunity and the ability to actually just walk up and down any stream we want.

- [Breanna] As long as he doesn't step above the ordinary high water mark.

- [Mua] It's usually not that deep.

- [Breanna] Five years ago, Mua mistakenly crossed that fragile line.

He stepped out of the slough in an attempt to avoid spooking the fish, but instead someone spooked him.

- I get one foot out on the bank and I'm just about to get my other foot and I hear this voice behind me and he goes, "Oh, you know what you're doing."

And I was like, I turned around kind of startled and I was like, "I'm fishing."

And he goes, "Well no, now you're trespassing."

And I was like, "I have one foot on the bank."

And he is like, "Yep, that's trespassing."

Where are am trespassing on private land?

- [Breanna] You don't have to go far in Montana to find friction where public and private land meet.

- [Mua] You're threatening me, get away from me.

- No, I'm not threatening you.

- [Mua] I'm on public land.

Back off.

- You crossed a private road.

- Back off!

- [Breanna] From this dispute between an outfitter and an ATV motorist in Blaine County, to the stream at the base of an elite private residential club in Madison County.

- [Sheriff] I just am involved because it was a possible trespassing.

- [Breanna] Public lands have long been grounds for debate.

- Governor, I invited you to come out and fish, but you haven't shown up yet.

You're welcome.

- Thanks for the invitation.

But the beauty is that's a public right of way.

I don't need your permission.

- [Breanna] But now more people than ever are sharing Montana's rivers, streams and public lands as new residents and visitors flood in, and all that pressure spills over to the banks and boundaries of private property.

- You have multiple values and interests fighting over a scarce resource that is significant to a lot of people, federal, state, tribal interests.

And it can make for tough trade-offs and choices and conflict.

That's not multiple use.

- [Breanna] Martin Nie has taught federal public lands law and policy at the University of Montana for 21 years.

He says the mosaic of land ownership across the west complicates these conflicts.

- I challenge my students every year to just think of a land distribution system that is crazier than the one that we've devised for the American West.

I mean giving away sections of land to homesteaders and school trust lands, alternating sections of land to the railroad corporations that are now the checkerboards.

I mean that's the legacy that my students have inherited when they're managing resources that go across all of those boundaries.

- [Breanna] A third of Montana is public land, but because of our gridded system, three million acres of it is landlocked by private land.

870,000 acres are inaccessible because they're corner locked in a checkerboard pattern of ownership, that's created one of today's biggest access disputes over whether the public can legally step across the corner from one parcel of public land to another.

- In no way would I want to vilify private landowners, but we do have a situation where the public is trying to access its public lands.

- [Breanna] Crossing at the corner is a legal gray area.

In 2021, four hunters in Wyoming used an A-frame ladder to access public land over a corner marked with no trespassing signs.

The ranch owner took them to court saying their access to otherwise landlocked public land devalued his 22,000 acre ranch by more than $7 million.

But in May, a federal Wyoming judge ruled the hunters crossing the corner had not criminally trespassed.

The following week, Montana Fish, Wildlife & Parks grappled with the implications of that ruling during its private Land Public Wildlife Advisory Committee meeting.

- Some of the sportsman's groups are coming out and encouraging people to maybe corner cross here in Montana.

I think that's a big mistake and I think it's gonna cause a lot of division.

- This is probably the safe spot for all of us to be discussing that topic and I would- - [Breanna] But with little discussion, FWP made a declaration.

- The case ruling doesn't apply in Montana.

Corner crossing remains illegal here.

And if a trespass is found on corner crossing, wardens have been advised to refer it to the county prosecutor for a handling at their discretion.

- [Breanna] Despite that June statement from FWP, no law exists to outlaw corner crossing.

In 2013, the Montana legislature rejected a bill that would've made it legal.

And in 2017, a bill that would've outlawed corner crossing died in committee.

That means there's still no outright rule for people on the ground to follow.

- I've often wondered what kind of fraught legal issues I could start by digging a tunnel, some sort of mineshaft that goes under the corner.

- [Breanna] Four decades ago a similar legal muddiness surrounded access to Montana streams.

Property owners had started to deny the public access to stretches of the Dearborn and Beaverhead Rivers in the early 1980s.

- The landowners had decided people could no longer float and fish there, even though they've been doing that for decades.

- [Breanna] Bob Lane has outlined and lived through decades of Montana's stream access controversies during his 25-year career as Montana Fish, Wildlife & Parks Chief Legal Counsel.

In 1984, the state's highest court ruled that the public not only had the right to wade fish and float the Dearborn and Beaverhead Rivers, but in fact it was a right guaranteed to them in the state's Constitution.

- Which said all of the water in Montana is owned by the people for the use of the people.

Sort of an all-encompassing decision.

Very simple, but very controversial.

- [Breanna] The following year, a contentious 1985 legislature saw attempts to limit stream access to floating, but ultimately lawmakers further confirmed the stream access right by clarifying its definitions.

- It was necessary to fill in some of the details about how the people could use the waters.

- [Breanna] The result was Montana becoming one of the least restrictive states for public access to rivers and streams, as legislators better defined landowner rights, as well as the public's ability to enjoy rivers for recreation within the ordinary high water mark.

- The ordinary high water mark is that line that the water impresses upon the vegetation such that vegetation does not normally grow there because it can't grow underwater.

So that line is the ordinary high water mark.

- [Breanna] But sometimes seeing the line on the landscape isn't straightforward.

- And the law leaves it open to interpretation.

It doesn't give an exact distance above the water and it doesn't say in the water, it says the ordinary high water mark.

And so it's open to my interpretation, it's open to the judge's interpretation.

It's open to the angler's interpretation, and it's open to the landowner's interpretation.

This is actually Idaho.

I see it's a non-resident Idaho license, so.

- I was wondering.

- [Breanna] Fish, Wildlife & Parks Game Warden Shane Yaskus says he empathizes with the people in his district.

- We fished the locks the last week.

- I grew up in this valley.

We hunted in this valley, and I don't ever recall seeing a warden in this valley.

And I think back on some of the things that we did, and I think, I wonder if that was legal or not.

And that's why, you know, as a warden I try to remember that, that there's so many laws to learn and that the people that move here, they have so much to learn.

I try to do a lot of education where I can to help people.

You'll be there in 20 minutes when we get there?

- [Breanna] Yaskus says trespassing and hunting without landowner permission are the top issues he investigates.

And the Bitterroot Valley's 16-mile Mitchell Slough is one of the hotspots.

- A lot of the complaints I deal with, I basically talk to the landowner and they tell me what they did.

And I say, well, they can duck hunt, they can fish, they can float their kayaks down the slough, things like that.

And this moose that you saw before it fell down, it was walking in this direction?

- That's right.

- [Breanna] Yaskus says while Montana's Stream Access Law is clear about the public's right to be there, the edges of that boundary are unique to each stream.

In the Mitchell Slough, which has a head gate controlling the water levels upstream, the ordinary high water mark doesn't create a visual vegetative change.

- When you recreate on Mitchell Slough, you have to stay, the high water mark is essentially at or near the waterline.

So you have to stay in the water, you're totally safe, and if the ground's wet and there's water under your feet, you're gonna be safe.

But if you walk up on the bank a foot or two above the waterline, you're gonna be above the high water mark.

- [Mua] I should have, you know, did my homework.

- [Breanna] That's where Kao Mua stepped into his $185 mistake.

- [Mua] I really kind of blame myself for that one.

And then after I did my homework, I was like, oh, okay.

There's actually a ton of controversy around this.

- [Breanna] The bank where a sheriff's deputy issued Mua a criminal trespassing ticket belongs to singer songwriter Huey Lewis.

- [Huey] It's a law, right?

It's a law.

So when you step on the bank, it's trespassing.

- [Breanna] Lewis declined to go on camera, but agreed to a phone interview from his ranch along the Mitchell Slough, a waterway he wishes the public would avoid altogether.

- [Huey] These fish need a sanctuary.

They believe me, they need help, they're pounded.

And there's only about, you know, very few of them left.

So let's, and I say if you get outta here, I won't call the cops.

- [Breanna] A decade before Mua trespassed, Lewis and other property owners made the case that Montana's Stream Access Law didn't apply to the Mitchell.

The case went to Montana's Supreme Court.

- I was confident from the very beginning.

I know not everybody else was because it had been part of the river.

- [Breanna] Bob Lane argued on behalf of Montana Fish, Wildlife & Parks in court that Mitchell Slough should be open to public access because of its history as a natural branch of the Bitterroot River, as identified on original survey maps.

- It was now called the Mitchell Slough, was designated as the right fork of the St. Mary's Fork of the Bitterroot River.

- [Huey] It's not a historic branch of the Bitterroot River.

It comes through a head gate and it's diverted twice before it gets to these ranches.

- [Breanna] Landowners tried to make the case that the Mitchell was a ditch since so much irrigation water fed it.

Plus they argued they were the ones to stabilize the stream banks.

- You're allowed to make changes in the side channel, but you're not allowed to claim that then those changes make it a private ditch.

And also all of the water counts, whether it's return flows or a runoff from irrigation, all of the water counts.

- [Breanna] Ultimately, the Montana Supreme Court ruled despite its altered state, Mitchell Slough was a natural body of water open to the public.

- So it was a side channel of the Bitterroot River stream act as applied.

- [Huey] The real tragedy of the Supreme Court decision is that these fish need help and the Mitchell's exactly what they need, but they're not gonna get it unless we fix it up and we're not gonna fix it up because why would you do that?

To invite less privacy, you know.

- [Breanna] The Mitchell Slough decision had statewide implications saying natural streams can't be altered into private ownership, but that wouldn't be the final test of Montana Stream Access Law.

A year ago, environmental lawyer, John Meyer and a contractor hiked up a fork of the Gallatin River near Big Sky to take water samples downstream from the elite Yellowstone Club.

They entered the water at a public access point.

- This is how we access the river.

And then we walked about three miles up the river.

- [Breanna] Along the way, they documented themselves fishing and staying below the high water mark.

- Because of Montana's Stream Access Laws and our recreational use statutes, nothing that my client was doing was actually criminal in any way, shape or form.

- There were security guards (indistinct) up on the bridge watching us as we came out, they had walkie-talkies and they were taking photos barking into their phones about what we were doing.

And we, again, we never got out of the high water mark so we just kept walking past 'em, waved to 'em, and they didn't wave back to us.

- [Sheriff] I just am involved because it was a possible trespassing.

- [Breanna] When they arrived back at the parking lot, a sheriff's deputy was waiting for them.

- [Sheriff] If you guys didn't go off above the high water mark, good, great, grand.

- [Breanna] He seemed to side with them.

- [Sheriff] The property owners sometimes seem to think that they own all of it.

- [Breanna] And found no reason to write a trespassing ticket.

- [Sheriff] That's why we, it's public land, it's public water, they don't own water.

- [Breanna] So Meyer was surprised five months later when the Madison County Deputy Attorney had him arrested for criminal trespass.

She did not respond to our repeated requests to speak with her about why she brought the case forward.

But ultimately, the judge dismissed the charges saying, since Meyer entered the stream bed on public property and remained below the high water mark, he did not trespass.

- If the court had ruled against us, it would have been allowing entities like the Yellowstone Club to privatize natural resources that should be open to the public and that would've had a catastrophic effect on Stream Access Law.

- [Breanna] Where some put up fences, others build bridges.

onX, a Montana-based company founded by a hunter, developed technology to see the otherwise invisible boundaries of land ownership.

- It's nice to know exactly where you are when you're in the field because you wanna know that, hey, it's okay to set up camp here, or it's okay to harvest an animal here.

- [Breanna] onX Communications Manager, Molly Stoecklein says as the app started to show users where they can go on their outdoor adventures, the maps also revealed all the public lands blocked by private property.

Now the company finds creative ways to meet the needs of landowners and public land users while improving access.

- There's a lot of commonality and goals between those two groups, and we assume that they aren't at odds with each other.

- [Breanna] A willing property owner recently worked with onX and 20 other stakeholders to sell a 160-acre property north of Bozeman to the Gallatin Valley Land Trust.

The deal transferred a previously private portion of the middle Cottonwood Canyon Trail into protected public land, opening up permanent public access to a swath of forest service land in the West Bridger Range.

- Those private landowners love the outdoors just as much as outdoor enthusiasts do.

They've had experiences that have really shaped them into human beings, who they are, and they wanna make sure that other generations after them have those same experiences.

- [Mua] My buddies always joke around about like winning the lottery and buying our own private ranch.

- [Breanna] Kao Mua still fishes Mitchell Slough, but he admits he's more inclined to go upstream where there are fewer no trespassing signs.

- You know, you don't get hassled up here.

- [Breanna] In fact, if he had stepped on the bank of John Cook's property, he would've been met with a more welcoming attitude.

- Actually, most the fishermen are pretty good people.

- [Breanna] While Cook didn't formally back the effort to make the Slough private, he was in favor of keeping the public out.

He still says it's technically a ditch.

- It's not part of the Bitterroot River, but you know, courts made their decision, so you gotta live with it.

- [Breanna] Through that acceptance, he says the line between public and private land ought to be a little more fluid.

- As a landowner, we need to be more open to letting people use our land.

We may own it, but we're only caretakers of it.

But this is the new Montana.

We got a lot of people that come in and the first thing they do is post their ground, no trespassing, blah, blah, blah, blah, blah.

Well, that's not the way I grew up.

You know, you grow up, you go someplace.

You ask them for permission, nine out of 10 times, they're gonna tell you yes.

- [Breanna] But Montana's Stream Access Law doesn't require courtesy or permission for those who stay in the Slough or the rest of our state's public waterways and lands.

Yet Montanans are still contending with the boundaries of that right.

And as they do, Cook says maybe on both sides of the bank there's a little room for common ground.

- What's that old saying?

Can't we all just learn to get along?

- [Breanna] For "Impact," I'm Breanna McCabe.

- Montana Fish, Wildlife & Parks is currently updating signage in Mitchell Slough to better define the rules for public access.

Meanwhile, the Forest Service and the Bureau of Land Management recently started digitizing paper easements that have been locked in filing cabinets for over a century.

Those files have revealed existing easements over private property, opening up some 25,000 acres of public land thought to be inaccessible across the west.

Well, moving on to our next story.

A group of Montana children may have won their climate change lawsuit against the state, but the case and its ramifications are far from certain.

Prior to the lawsuit, Montana regulators were banned from considering the impact of greenhouse gas emissions when permitting coal mines and power plants.

But the children in the lawsuit argued that greenhouse gases or GHGs cause droughts, fires, and floods that ultimately harm their health and quality of life.

They claim the state has violated their constitutional right to a clean and healthful environment by ignoring the emissions.

Judge Kathy Seeley agreed and her ruling effectively lifts the ban.

However, her ruling stops short of requiring the state to regulate greenhouse gases.

Critics say the Department of Environmental Quality is using this wiggle room to continue business as usual, while it holds public listening sessions across the state.

- There's harm being caused right now.

Right now the state is issuing permits for fossil fuel-related projects and continuing to sort of refuse to analyze climate.

I mean, we're making critical decisions that are materially damaging the future of these kids right now.

- We are filing an appeal of the case because we think there's a lot of clarification required.

And in that clarification, we don't wanna do or conduct an analysis that then will just simply be litigated, wrong on its face.

We're gonna take a little bit more time, engage the public and stakeholders and gather consensus hopefully around what that greenhouse gas analysis is and should be.

- In the appeal, the DEQ is requesting a stay on Judge Seeley's decision.

They reiterated that the ruling does not require them to do anything, and that while the agency is considering if, when, and how to calculate GHG emissions in permitting analyses, this process cannot be completed overnight.

The Montana Attorney General's Office has also appealed the decision.

In an email to Montana PBS, Press Secretary Emily Flower says, "If not overturned, the district judge's decision sets a dangerous precedent by encouraging other radical activists to sidestep the democratic process by seeking to impose their policy preferences through litigation in courts that share their political views."

Scholars across the country have noted that Judge Seeley's detailed findings of fact included in the 103-page decision could serve as a buttress to other climate change lawsuits in the United States.

Montana PBS' Aj Williams sat down with Sandra Zellmer at the University of Montana Law School to discuss the ramifications of Judge Seeley's ruling.

- So it sounds like there are several climate trial cases that our Children's Trust has brought forth.

What about Montana's environmental laws made this a winning suit?

- Well, it was really a perfect storm, I think for the youth plaintiffs here in Montana, both because we have a very strong constitutional provision from the 1972 Constitution, an environmental right, and not only a right to a clean and healthful environment.

So we have a procedural statute called the Montana Environmental Policy Act.

Almost every state in the country and also the federal government has an environmental policy act that requires environmental analysis.

There has to be an analysis.

So those two things, the constitutional right and the procedure that requires in-depth analysis of effects of greenhouse gas permitted activities, those two things combine in Montana.

And I would say there's only maybe seven states total that have both of those things like Montana does.

- And what are some of those pending cases that you know may use Held v. Montana's ruling in how the case is presented and how it carries through?

- Yeah, to my knowledge, there are at least two.

One is in Hawaii in state court based on a state constitutional provision that's a little different than Montana's.

And the other is at the federal level, it's the Juliana case, which is also brought by our Children's Trust litigants and they're suing the federal government.

- So something we've discussed is that this case went farther than any other case has, and I'm wondering if there is anything specifically unique about the plaintiffs that have come to present this case or how they're presenting it that you think led to the ruling that they ultimately got.

- This case involves youth plaintiffs, and there is mounting evidence that there are really specific and concrete impacts on youth from climate change, that there are real, tangible psychological effects on children.

There's a very recent study from the American Psychological Association that shows that the impacts of climate on children's psychology is akin to post-traumatic stress disorder.

So the fact that these plaintiffs in Montana are youth plaintiffs and that they could show concrete effects on their recreational activities, their educational opportunities, their emotional levels of distress, that I think is a very important facet of the case and that allowed them to get over many of these jurisdictional hurdles.

- What would you say to those who are critical of this ruling to begin with?

What information would you want them to know?

- There is nothing really unique about that part of Judge Seeley's findings of fact.

There is tremendous consensus around the fact that humans are contributing to climate change and that even incremental reductions in greenhouse gases, even at just a state level like Montana can make a difference.

All the ruling really says is you have to analyze the effects of your decisions on climate change and on a climate-altered future.

And that doesn't mean you can't permit coal, you can't permit fossil fuel plants, you have to cut back on the provision of electricity to all of your citizens, but rather you have to consider the impacts of a change in climate of your decisions.

- Sandy, thank you so much for speaking with us today for Montana PBS.

- You're welcome, Aj.

It's a pleasure.

- Lawyers for the children have filed letters demanding that the agency begin evaluating greenhouse gases or risk being held in contempt.

The case and the appeals are likely headed to the Montana Supreme Court.

Well, those are our stories for this edition of "Impact."

Next time on the show, how is Bozeman managing an increasing number of so-called urban campers?

We'll examine what a new ordinance means for the city as it works toward long-term solutions.

And a community push in Billings aims to make it easier for victims of domestic violence to seek help.

We'll go inside the effort to create the state's first Family Justice Center.

Well, for all of us here at Montana PBS, I'm Joe Lesar and we thank you for joining us.

(light music) (light music continues) (light music continues) - [Announcer] Production of "Impact" is made possible with support from the Otto Bremer Trust, investing in people, places, and opportunities in our region, online at ottobremer.org.

The Greater Montana Foundation, encouraging communication on issues, trends, and values of importance to Montanans, and viewers like you who are friends of Montana PBS.

Thank you.

(light piano music)