Finding Its Role: TU and Public Fishing Access
By David Nickum
Article originally appeared in Summer 2007 High Country Angler
Few issues generate emotion among anglers like public fishing access. Whether it’s long-time residents who see more and more “posted” signs along their home waters, or landowners who experience the frustration of trespassers who use (and sometimes abuse) resources on their property, anglers of all stripes bring great passion to the discussion about providing public fishing access. It’s no surprise that the same passion has risen to the surface within Trout Unlimited, as we grapple with the question of what TU’s role should be when it comes to public access.
In Colorado and beyond, TU has a long history of involvement with public access - mostly non-controversial efforts working with willing landowners, but also some contentious stream access disputes between anglers and private landowners. The debate over TU’s role in such access issues returned to the fore when the former Chairman of TU’s Board of Trustees resigned, citing dissatisfaction with TU’s national policy governing involvement in access disputes. “There is nothing in TU’s … simple, eloquent mission statement or sweeping vision statement about promoting or defending public access; nor should there be,” wrote John Maher.
While TU’s mission statement is simple – “to conserve, protect, and restore North America’s trout and salmon fisheries and their watersheds” – different TU leaders have looked at how access relates to that statement in very different ways. While Maher views public access as outside of TU’s mission, officials with the Montana Council of TU have taken a very different view. “When the public has access to public resources – water and fish and wildlife – they will fight for the conservation of those resources,” explained Montana Council Executive Director Bruce Farling. “When they don’t have access, they won’t. It isn’t coincidence that [Montana has] the best trout fishing in the U.S. We also have the best stream access law.”
Trout Unlimited President and CEO Charles Gauvin falls in the camp of those believing access is not in the TU mission, but he acknowledged Farling’s concern. “We all recognize the importance of public stream access to building and maintaining a grassroots constituency for conservation,” Gauvin said. However, “if TU is going to devote any of its resources to matters that are not within the mission (and we do, from time to time), the cardinal rule is, first do no harm. By taking on disputed access cases, we risk doing substantial harm to our relationships with landowners and others who support [TU’s] mission.”
The issue is muddied by the fact that access can mean very different things to different people, and indeed means different things in different states. For example, in Montana stream access is a constitutionally-affirmed right of way up to the high-water mark of rivers and streams, while in Colorado private landowners own the bank and bottoms of rivers and streams. As a result, when anglers talk about wanting to secure or preserve access, those words means very different things in the two states. Other states have yet more variations on stream access law.
The issue has been further confused by different perceptions of what current access rights are (or should be). Where TU affiliates have engaged in access disputes in recent years, local members have framed their involvement as a defense of current public rights as they exist in their state – not a claim against private property. Unsurprisingly, there have been private landowners, including TU members and supporters, who have reached the opposite conclusion. The result has been significant debate and controversy over what role, if any, TU should play in such disputes.
In contrast to access issues involving disputes between public access and private landowner interests, there is widespread agreement that TU involvement in voluntary and incentive-based access programs is worthwhile. “Like teaching kids to fish, it’s not in the mission,” said Gauvin, “but it’s a solid investment in the future of angling and grassroots conservation.”
Indeed, TU in Colorado and beyond has a significant track record of involvement on promoting public access through a variety of non-controversial efforts. Recently, the Collegiate Peaks Anglers Chapter of TU partnered with the Division of Wildlife on the first-ever project funded through dollars from the Division’s new Habitat Stamp. The chapter contributed $10,000, matched by $89,000 from the Habitat Stamp funds, to acquire a perpetual access easement on approximately 1.25 miles of the Arkansas River near Granite. “Any time we can tie up a river in public access in perpetuity, I’m willing to spend some money to do that,” said Chapter President Mark Cole.
The Arkansas River on the Hardeman property, recently secured for permanent public access. (Photo courtesy Colorado Division of Wildlife)
The property owner, Mrs. Pat Hardeman, had previously leased access under five-year agreements with the Division of Wildlife. When Habitat Stamp dollars became available, the Division took the opportunity to pursue a permanent access agreement with her. The chapter’s support was important. “Even though it was only 10% of the purchase price, it was really helpful to have TU involved,” explained District Wildlife Manager Tom Martin. “It made a real difference with the decision-makers.”
Colorado Trout Unlimited lobbied for the Habitat Stamp, adopted by the General Assembly two years ago. The legislation creating a Habitat Stamp requires all hunters and anglers, as well as other users of State Wildlife Areas, to purchase the annual stamp. The resulting dollars are to be used to provide an ongoing public funding source for habitat protection and improvement – and for securing public fishing and hunting access. “We’re very pleased that anglers were beneficiaries of the first Habitat Stamp acquisition,” said CTU President Steve Craig. “Opportunities to secure angler access and protect aquatic habitat are the very reason we supported this legislation.”
The Hardeman Lease was not the first instance of CTU and its chapters partnering with the Colorado Division of Wildlife to secure public access. In 2000, CTU had the opportunity to help the Division secure permanent public access on a small but important parcel of land on the Roaring Fork River near Carbondale. The owner of the property had passed away, and his heirs thought the property already had been transferred to the Division of Wildlife. Unfortunately, it had been only leased to the Division – and had accumulated back taxes over several years, and was at risk of being claimed by private interests. CTU stepped in, worked with the heirs to pay the back taxes, and had the property deeded permanently to the Division of Wildlife. “We saw an opportunity to perform a public service because the Roaring Fork has limited public access,” explained former CTU President Tom Krol. “It made sense for us, it made sense for the Division of Wildlife, and it makes sense for the myriad residents and visitors who fish there every year.”
While voluntary access efforts have been a small but important part of TU’s work in Colorado, in some portions of the country they are integrated more systematically into conservation work. The Central Wisconsin Chapter has secured multiple easements on the Plover River, in conjunction with helping landowners complete stream restoration work. The chapter covers matching grant costs for stream restoration work and provides volunteer help in exchange for public access easements. “We won’t put our money into places that the public doesn’t have access to,” explained Duke Welter, a TU Grassroots Trustee and member of the Central Wisconsin Chapter. “Landowners in our area know we’ll pay a landowner’s share [on federal matching grants] if they’ll donate a public access easement. We probably hold a couple of dozen easements.”
Wisconsin's Plover River, where TU has partnered with landowners to improve habitat and provide public fishing access. (Photo courtesy WI Dept of Natural Resources)
National TU explored involvement in securing conservation and access easements in the mid-1990s, putting together a series of pilot projects for trout “conservancy” work and assessing whether TU should make such projects a significant part of its efforts. “We seriously thought about whether to … become something akin to an aquatic Nature Conservancy,” said TU Vice President for Volunteer Operations and Government Affairs Steve Moyer. TU completed three acquisitions – on a small Pennsylvania spring creek called Falling Spring, on the Red River Wildlife Management Area in Idaho, and on Mill Creek in Missouri “We pulled off those, but as we analyzed the costs and the benefits, we realized that is was just a tremendous amount of effort and expertise that needed to be developed to be successful and we decided that wasn’t in our strategic long-term interests,” said Moyer. “Our best role was to work with existing land conservancy groups.”
In contrast to voluntary access agreements, TU’s involvement on access disputes has generated significant debate within the organization. In 2002, CTU, working under then-existing national TU policy, stepped forward to lobby against an amendment (to an unrelated wildlife bill) that would have criminalized the act of fishing while floating past private land. The move generated both support and concern in different circles. CTU’s Board adopted a policy statement that drew the line on where CTU would or would not get involved in access disputes: CTU would “not support efforts to reduce existing rights of public access” – but similarly, would “not support measures to expand public access by diminishing the vested property rights of any riparian landowners.”
Access disputes have also arisen in Montana. Most notably, in 2000, the Colorado-based Mountain States Legal Foundation challenged the state’s stream access law. Montana Trout Unlimited intervened on behalf of the state, supporting the access law, and ultimately prevailed. “There are people around the country who do not want to see the kind of access law we have in Montana in other states, and they are concerned that this is going to spread,” explained Farling. “All we want to do is protect what we have.”
While access is not part of TU’s mission statement, it comes as little surprise that TU has been engaged in such disputes. “For good or ill,” said Kirk Otey, vice-chair of TU’s Board of Trustees, “When [members] think about where to turn because they might not be able to fish anymore, the first place they turn is Trout Unlimited.”
However, such involvement generates controversy with some landowners and raises concerns, as voiced by Maher in his letter to fellow Trustees. “If [TU] is serious about protecting pristine habitat, reconnecting fragmented habitat, and restoring degraded habitat … on a landscape and regional scale,” he wrote, “TU must reckon with two simple facts: that many of those waters run through private land that is not publicly accessible, and that many landowners are understandably reluctant to work with a group whose motives they perceive as mixed.”
Questions over TU’s involvement in access disputes, and its implications for fundraising and partnerships with private landowners on conservation work, led the Board of Trustees to undertake a lengthy policy review which culminated in a revised policy one year ago. The new policy established a stream access working group to advise chapters and councils on access matters. Chapters or councils that wished to participate in access disputes would bring their concerns to the working group, which would forward them on to the Board’s Executive Committee with a recommendation to either support or oppose TU involvement. If involvement was approved by the Executive Committee, the TU affiliate would be able to participate under the TU name.
Under the new policy, there have been two issues brought forward and in both cases permission was granted for involvement. One was advocacy in support of legislation clarifying issues of access to rivers from bridge crossings in Montana. The other was an after-the-fact review of involvement in a Montana conservation issue with significant access implications: the “Mitchell Slough” case. At issue was the question of whether Mitchell Slough – a side channel of the Bitterroot River fed by an irrigation ditch – was a “stream” under Montana law. The debate has focused on Montana’s fishing access law, which provides public access up to the high water mark on streams. If Mitchell Slough were determined not to be a stream, landowners along it (and other similar waters) could exclude anglers.
Mitchell Slough, where debates over public access spilled over into conservation issues with the Montana streambed protection law. (Photo courtesy of MT Fish, Wildlife & Parks)
As the case developed, the Montana Council expressed concern about Mitchell Slough’s designation in relation to the state streambed protection law, which requires permits for work done on streambeds and channels. The Council filed an amicus brief in the case, raising concerns in some circles within TU about involvement on access issues. The Council disagreed with that interpretation. “The only involvement we have is … in support of the State of Montana’s position that Mitchell Slough is a stream for purposes of streambed and land preservation,” said Bruce Farling. “We’ve never publicly said anything about access in Mitchell Slough.”
However, involvement with the bridge legislation and Mitchell Slough case was enough to trigger concern among some TU Trustees – including the resignation of former chairman Maher. A new proposal was brought to the Board of Trustees that would have drawn a “bright line” and prohibited TU involvement in access disputes involving private lands, with a few identified exceptions for things like involvement in hydropower licensing or similar permit processes, and for applications of the Clean Water Act or Public Trust Doctrine. The proposal triggered substantial resistance within TU’s grassroots leadership, and was subsequently withdrawn. Instead, the Board adopted a resolution stating that involvement in access disputes was a divisive and difficult issue and should be re-examined and minimized. The resolution also called for a pilot program to promote voluntary incentive-based access, and established a working group to re-evaluate TU’s policy and develop proposed changes consistent with the board’s directive. That group will have recommendations in advance of the TU annual meeting in September.
The ongoing policy debate within Trout Unlimited is focused not on access in general, but on the specific question of TU involvement in access disputes pitting public access against private property rights. The question facing TU, Moyer explains is, “Should chapters and councils be able to defend what they think are existing public access rights, even when that defense takes us into disputes with private landowners? Because there are some private landowners that see it as being much more than defense, they see it as TU going on offense to take away existing private property rights.”
At least one Trustee – Duke Welter – believes the current policy of potential TU involvement subject to a review process continues to make sense. He voiced concern about the importance of access to rank-and-file TU members. “If TU volunteers are going to work hard for streams on the local level and be the face for TU in a lot of the country, then we need to be listening to what they have to say,” Welter said. “One of our state council chairs said, ‘How are we going to get people to work for streams if they can only see them from a bridge?’”
Gauvin cautioned against future involvement, given the risks it poses to TU’s ability to raise funds and build partnerships. “I think it’s a bad idea to take advocacy risks in matters that aren’t part of the mission,” he explained. “I’ve learned the hard way that if TU is going to take a position, pro or con, on something controversial, the subject matter of that something better be within the mission. If it is not, then it’s better to stay neutral.”
Where the policy ultimately goes will be determined later this year. Interested members can share their opinions with the working group reviewing the policy, by sending comments to the attention of Steve Moyer at Trout Unlimited, 1300 North 17th Street, Suite 500, Arlington, VA 22209.
In the meantime, the access dispute has a number of silver linings. “One of the good things that has come out of the controversy,” said Moyer, “is that there is a real, sincere interest in gathering the resources and doing a better job of working with land conservancies, states, landowners on voluntary access efforts.”
CTU’s Krol sees an even more fundamental positive in the debate. “The fact that this access issue came up as it did, says something good about the diversity of political views in our organization and how we represent a broad spectrum of conservationists,” he said. “The fact that we are in this together is a good thing.”