Madison v. Graham, CV00-18-H-CCL.

• Decision Date: 04 January 2001
• Docket Number: No. CV00-18-H-CCL.,CV00-18-H-CCL.
• Citation: 126 F.Supp.2d 1320
• Court: U.S. District Court — District of Montana
• Parties: Harvey and Doris MADISON, Charles and Elena D'Autremont, and Harrison Saunders, Plaintiffs, v. Patrick J. GRAHAM, Director, Montana Department of Fish, Wildlife, & Parks; Montana Fish, Wildlife & Parks Commission; and Stan Meyer, David Simpson, Charles Decker, Darlyne Dasher, and Tim Mulligan, Commissioners, Defendants, Montana Wildlife Federation, Montana Chapter of Trout Unlimited, Fishing Outfitters Association of Montana, and Montana Coalition for Stream Access, Defendant-Intervenors.

126 F.Supp.2d 1320

Harvey and Doris MADISON, Charles and Elena D'Autremont, and Harrison Saunders, Plaintiffs, v. Patrick J. GRAHAM, Director, Montana Department of Fish, Wildlife, & Parks; Montana Fish, Wildlife & Parks Commission; and Stan Meyer, David Simpson, Charles Decker, Darlyne Dasher, and Tim Mulligan, Commissioners, Defendants, Montana Wildlife Federation, Montana Chapter of Trout Unlimited, Fishing Outfitters Association of Montana, and Montana Coalition for Stream Access, Defendant-Intervenors.

No. CV00-18-H-CCL.

United States District Court, D. Montana, Helena Division.

January 4, 2001.

COPYRIGHT MATERIAL OMITTED

Dale R. Cockrell, Christensen Moore Cockrell Cummings & Axelberg, Kalispell, MT, William P. Pendley, S. Amanda Koehler, Mountain States Legal Foundation, Denver, CO, for plaintiffs.

Robert N. Lane, Helena, MT, Joseph P. Mazurek, Stephen C. Bullock, Office of Montana Attorney General, Helena, MT, John F. Lynch, Helena, MT, for defendants.

James H. Goetz, Richard J. Dolan, Goetz, Gallik, Baldwin & Dolan, Bozeman, MT, for intervenor defendants.

OPINION AND ORDER

LOVELL, Senior District Judge.

Before the court are the motions to dismiss filed by the State Defendants and the Defendant-Intervenors. These motions came on regularly for hearing on December 13, 2000. The court heard argument by William Perry Pendley for the Plaintiffs, by Stephen C. Bullock for the State Defendants, and by James H. Goetz for the Defendant-Intervenors. The court, having considered the briefs filed by the parties and the arguments made at hearing, is prepared to rule.

Plaintiffs seek by their Complaint to enjoin the State Defendants permanently from enforcing the Montana Stream Access Law with regard to privately owned streambeds and banks underlying the Stillwater and Ruby Rivers and O'Dell Creek, historically non-navigable waters in the State of Montana.¹ Plaintiffs' First Claim asserts that the Stream Access Law violates their 14th Amendment right to substantive due process. In the alternative, Plaintiffs' assert the same due process claim pursuant to 42 U.S.C. § 1983. Plaintiffs' Second Claim asserts that the Stream Access law violates their right to due process because it is void for vagueness.

The court's analysis of these issues starts with their legal history beginning in 1972 when Montana adopted a new Montana Constitution, which some feared could infringe upon rights vested and existing under the prior 1889 Montana Constitution and the substantial body of law decided thereunder.

The 1972 Montana Constitution contained this new and significant provision:

All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.

Article IX, Section 3(3).

Then, in 1984, the Montana Supreme Court examined a claim of plaintiff Montana Coalition for Stream Access, Inc. against defendant Dennis Curran, who owned private property bordering some six to seven miles of the Dearborn River and who claimed a right to restrict its use. Montana Coalition for Stream Access v. Curran, 210 Mont. 38, 682 P.2d 163 (1984). Plaintiff claimed that the Dearborn River is a public way and that the public possesses a right to use the river for recreational uses, up to the high water mark on defendant Curran's private property. Although the Dearborn River had always been considered a navigable river for purposes of federal title analysis, and therefore it was never in doubt that the State of Montana had legal title to the Dearborn's streambed, nevertheless the court proceeded to consider the effect of the new surface water provision of the 1972 Montana Constitution. Relying on the 1972 Montana Constitution and upon the Public Trust Doctrine, the Montana Supreme Court held that "any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for nonrecreational purposes." Montana Coalition for Stream Access v. Curran, 210 Mont. 38, 682 P.2d 163, 171 (1984).

Several months later, the Montana Supreme Court decided Montana Coalition for Stream Access v. Hildreth, 211 Mont. 29, 684 P.2d 1088 (1984), in which plaintiff challenged defendant Hildreth's attempt to close 1.5 miles of the Beaverhead River to public use. The district court found for plaintiff and declared that the Beaverhead River was subject to public access up to the high water mark of Hildreth's lands. On appeal, the Montana Supreme Court affirmed the district court, citing Curran and the surface water provision of the 1972 Montana Constitution, and declared that the public had a right to recreational use of the streambed and banks of the Beaver-head River up to the ordinary high water mark. Id. at 1094.

Next, in 1985, after much political compromise, the Montana Legislature enacted the Stream Access Law, Mont.Code Ann. §§ 23-2-301, et seq., for the purpose of codifying Montana law regarding recreational use of Montana streams. The constitutionality of the Stream Access Law was challenged by several property owners (among them one of the Plaintiffs in the instant case, Harrison Saunders) in Galt v. State, Dept. of Fish, Wildlife & Parks, 225 Mont. 142, 731 P.2d 912 (1987) ("Galt I"). Although certain minor provisions of the Stream Access Bill were found to be unconstitutional, in the main the Montana Supreme Court found that "the balance of the statutory scheme accords with the Montana Constitution and the opinion of [the] Court." Id. at 916. Galt I made clear that although property owners might well possess title to the streambeds of streams running through their properties, such a "fee [is] impressed with a dominant estate in favor of the public." Id. The Montana Supreme Court therefore maintained its interpretation of the 1972 Montana Constitution and the Public Trust Doctrine, as earlier stated in Curran and Hildreth, that the public's right to use state-owned water for recreation imposes a narrowly-confined public easement over the bed and banks of Montana streams owned by private individuals.

Significantly, for purposes of the instant case, the Galt I Plaintiffs failed to attempt to appeal this decision to the United States Supreme Court, as they would have done had they desired to challenge the Montana Supreme Court's holding of the constitutionality of the Montana Stream Access Law.

In the instant case, the State Defendants move to dismiss the Plaintiffs' Complaint on the grounds that (1) the Complaint is actually founded in the Takings Clause of the Fifth Amendment, as applied to the states through the 14th Amendment, and this explicit textual source of constitutional authority overrides the claim of substantive due process, (2) under the Fifth Amendment Takings Clause, the test is whether the stream access laws are rationally related to a legitimate state interest and are therefore a valid exercise of police power, (3) even viewed as having a 14th Amendment Substantive Due Process claim, Plaintiffs have failed to carry their burden of showing that there is no conceivable public purpose for Montana's Stream Access laws, and (4) the Montana Stream Access law's failure either to permit or to proscribe portage around natural barriers is not a violation of the vagueness doctrine, and the law's definition of high water mark is not vague.² Thus, the State Defendants assert that there has been no constitutional violation, and Plaintiffs have failed to state a claim upon which relief can be granted.

The Defendant-Intervenors move to dismiss the Complaint on the grounds that (1) Montana's three-year statute of limitations has elapsed, (2) Plaintiffs' claims are barred by res judicata, (3) the Full Faith and Credit statute requires that the court honor a previous adjudication of the constitutionality of Montana's Stream Access Law, and (4) the Rooker-Feldman Doctrine bars federal district court review of Montana Supreme Court cases.

Taking up the State Defendants' motion to dismiss, the court finds that the State Defendants question whether Plaintiffs have properly framed the issues to be decided and assert that the Complaint's First Claim for Relief is really a Fifth Amendment takings claim. The State Defendants suggest that Plaintiffs seek to avoid framing it thus either because Plaintiffs have failed to exhaust their state remedies or because Plaintiffs cannot meet the applicable Fifth Amendment takings claim standard.

Indeed, Ninth Circuit precedent does require that this court view Plaintiffs First Claim as a Fifth Amendment takings claim rather than a 14th Amendment substantive due process claim. Armendariz v. Penman, 75 F.3d 1311 (9th Cir.1996) (en banc) (substantive due process claim not actionable when explicit textual protection under takings or just compensation clause of the Fifth Amendment are available, regardless whether a takings claim has merit); see also Macri v. King County, 126 F.3d 1125 (9th Cir.1997) (public takings claim); Sinclair Oil v. County of Santa Barbara, 96 F.3d 401 (9th Cir.1996) (public takings claim). An as-applied Fifth Amendment takings claim would require exhaustion of state remedies, i.e., presentment and denial, prior to being asserted in federal court. See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

The applicable test under the Fifth Amendment Takings Clause would require Plaintiffs to show that Montana's Stream Access Law either does not substantially advance legitimate state interests or denies a property owner all economically viable use of his land. See Nollan v. California Coastal Commission, 483 U.S. 825, 834, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) (citing Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980)). Perplexingly enough, Plaintiffs rely heavily on two Fifth Amendment Takings Clause c...