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Madison v. Graham

ELR Citation: 33 ELR 20142
Nos. No. 01-35145, (9th Cir., 12/23/2002)

The court affirms a district court's dismissal of individuals' substantive due process claims challenging the constitutionality of the Montana Stream Access Law. This law allows the use of all surface waters that are capable of recreational use without regard to ownership of the land underlying the waters. In this case, non-navigable streams capable of recreational use cross the individuals' properties, and the individuals own the streambeds underlying the streams. In their complaint, the individuals alleged that enforcement of the Montana Stream Access Law violates their substantive due process rights by infringing on their liberty interests and fundamental rights. A close inspection of the complaint, however, reveals that the harms allegedly caused by the law result from the individuals' inability to exclude others from their property. Thus, their claim must be analyzed under the Fifth Amendment Takings Clause. The U.S. Supreme Court has declared that the right of landowners to exclude others from their property is one of the most essential sticks in the bundle of rights that are commonly characterized as property, and the individuals recognized this well-established principle in their complaint. The U.S. Court of Appeals for the Ninth Circuit has also recognized that claims alleging governmental interference with property rights fall under the Fifth Amendment Takings Clause, and because the takings clause provides an explicit textual source of constitutional protection against private takings, the Fifth Amendment, not the more generalized notion of substantive due process, must be the guide in reviewing claims of a private taking. However, because the individuals steadfastly disclaimed reliance on the takings clause as the predicate for their lawsuit, their claims were not construed as takings claims. And because the individuals failed to adequately allege a substantive due process claim, the district court correctly dismissed their claim with prejudice. Additionally, the Montana Stream Access Law is not unconstitutionally vague because it addresses the legality of portage around artificial barriers in the streams but not the legality of portage around natural barriers.

Counsel for Plaintiffs
S. Amanda Koehler
Mountain States Legal Foundation
707 17th St., Denver CO 80202
(303) 292-2021

Counsel for Defendants
Brian M. Morris, Solicitor
Department of Justice
Helena MT 59601
(406) 444-2026