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Old 10-22-2013   #41
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 31
Montana v. United States, relation to the Grand Canyon.

Okay, I will reply only on this thread, not the others. Yes, Montana v. United States confirmed that a tribal government can prohibit nonmembers from hunting and fishing on the LAND surrounding the river, but cannot do so on the bed and banks of the RIVER. This is consistent with centuries of law and previous U.S. Supreme Court decisions, holding that public rights on rivers are not at the discretion of the owner of the surrounding land. (Cited on the new free posters and handouts at, and in the book Public Rights on Rivers.)

The river in dispute was the Big Horn River in Montana, a typical western river with shallow places, gravel bars, and rapids, navigable in rafts, canoes, kayaks, and other small boats, but not in ships or barges. (You can read the case at The users of the river were noncommercial. The state of Montana sought to protect noncommercial public navigation and fishing rights on the river, while the Tribe sought to exclude the public. The U.S. Supreme Court said, “To resolve the conflict between the Tribe and the State, the United States, proceeding in its own right and as fiduciary for the Tribe, filed the present action, seeking a declaratory judgment quieting title to the riverbed in the United States as trustee for the Tribe and establishing that the Tribe and the United States have sole authority to regulate hunting and fishing within the reservation, and an injunction requiring Montana to secure the Tribe's permission before issuing hunting or fishing licenses for use within the reservation.” In other words, lawyers for the Department of the Interior, Bureau of Indian Affairs, sought to prevent public use of the river. However, they lost the case. The U.S. Supreme Court confirmed the navigational easement “for the benefit of the public, regardless of who owns the riverbed,” including public rights to engage in “sport fishing and duck hunting,” despite the objections of the Department of the Interior and the Tribe.

In sum, the case confirms public rights to navigate noncommercially on typical western rivers flowing through Department of the Interior lands, despite the objections of the Department of the Interior. This is the latest thing the U.S. Supreme Court has said on the subject. The Court is not going to reconfirm this principle river by river.

Even so, the public right to navigate rivers does not include unlimited quantities of people, on a long river trip with only limited camping places. In the Grand Canyon, the National Park Service can deny access to noncommercial applicants when the river is already fully reserved by other specific, named people, planning to go on commercial and noncommercial trips. However, it cannot deny access for an arbitrary and unlawful reason, such as when there is ample vacant space on the river, and the reason for the denial is to preserve arbitrary allocations to commercial operators, thereby requiring the public to pay those operators in order to gain access to the river in a timely manner.

Have a nice day.

– Eric Leaper, for the National Organization for Rivers (NOR.) (Home - National Organization for Rivers.)

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Old 10-22-2013   #42
Fort Collins, Colorado
Join Date: May 2006
Posts: 69
In other words, lawyers for the Department of the Interior, Bureau of Indian Affairs, sought to prevent public use of the river.
That's not what this case is about. The petitioners sought to prevent Montana from regulating use of the river. It may be a subtle distinction, but it's one that would matter if you started bringing this into court. Your interpretation of the case might make an interesting law review article, but it's not going to convince a lot of judges.

Also, I don't know where you're getting the information about which agencies were involved. The only mention of either Interior or Indian Affairs in the opinion is in a footnote about the legislative history of the Allotment Act.

sport fishing and duck hunting
I don't know where you're quoting this from; the phrase doesn't appear in the case.

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Old 10-23-2013   #43
Rainy Northwest, Washington
Paddling Since: 1980
Join Date: Feb 2009
Posts: 460
So in the end, your argument is that it is arbitrary and capricious for federal agencies to restrict non commercial river access, other than for environmental or safety reasons you agree with. I think that you will usually lose that argument given the deference courts will provide to the regulating agencies. Montana v. US does not address that point.
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Old 10-23-2013   #44
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 31
NOR reply to the above

In reply to the above, we would direct your attention to: TRIBE REFUSES TO GIVE UP BATTLE FOR BIG HORN RIVER - This is a New York Times article from that time. Note that Montana Senator John Melcher, a member of the Senate’s Select Committee on Indian Affairs, described the Supreme Court’s decision as follows: “What is involved here is whether or not other people can have the privilege of fishing or floating down that river.”

Or, if you prefer the script of an NBC show with Tom Brokaw from that time, see: Crow Indian Tribe Fights for Rights to Montana's Big Horn River.

Regarding “sport fishing and duck hunting”, they spelled it “sports fishing and duck hunting”.

Regarding the “deference courts will provide to the regulating agencies,” it’s true that courts generally respect agency decisions, and that plaintiffs disagreeing with agency restrictions have to show the judge why the restriction is arbitrary or unlawful. We are saying that restricting noncommercial navigation in the Grand Canyon to an unchanging allocation for years on end, thereby denying access to most applicants by lottery, while maintaining a large unchanging commercial allocation that allows easy phone reservations for all interested customers, is arbitrary and unlawful.

We will be detailing this, specifically regarding the Grand Canyon, in upcoming handouts and posters for public distribution (with the necessary citations.) At this point, we have general handouts and posters about public rights in the United States, and in Colorado, available as free downloads at Home - National Organization for Rivers. – Eric Leaper.

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