09/27/2022
The Curran Case: Public Trust Doctrine and the Montana Constitution
The Dearborn River tumbles out of a gorge in the Lewis and Clark Range and, before reaching its confluence with the Missouri some 70 miles later, passed through six to seven miles of Dennis Curran and his Curran Oil Company’s land. Claiming ownership of the banks and streambed — and thus the right to restrict public access — Curran harassed and interfered with fishermen and floaters on the Dearborn, even running over a recreationalist’s inflated raft with his vehicle in one instance according to witnesses.
Members of what would soon become the stream access coalition filed suit against Curran in 1977, and the case wound its way to the Montana Supreme Court in 1984. Using the “log-floating test,” the court determined that the Dearborn was navigable when Montana entered the Union in 1889 because it had previously been used to move logs and railroad ties downstream. Under the federal definition of navigability, the state owned the riverbed and held it in trust for the good of the public (Curran).
Perhaps the most crucial concept to emerge from the court’s decision was a broad definition of navigability of state waters: “any surface waters
capable of use for recreational purposes are available for such purposes by the public. . . .” (Curran). The court based its reasoning on the public trust doctrine and Montana’s 1972 Constitution. The public trust doctrine, a concept dating back to Roman times, posits that the state must maintain certain resources, like “navigable waters and soils under them,” for the public’s use (Illinois Central Railroad). Montana’s 1972 Constitution states that “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” (Montana Constitution).
Importantly, the 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” (Curran). The justices decided that if a river or stream can be used for recreational purposes, then that alone suffices to designate it as a “navigable” river for recreational uses. Further, they ruled that anyone may use the stream up to the normal high water mark for recreational purposes, and he or she also has the right to portage around stream barriers in the least intrusive manner.
