A Class War Runs Through It

JONATHAN WEBER- New York Times: "JAMES COX KENNEDY, the head of Cox Enterprises, the Atlanta media company, was just doing what lots of modern media moguls do when he bought nearly 4,000 acres in Montana's Ruby Valley: transforming remote Western ranchland into a private hunting and fishing retreat, and doing some commendable habitat conservation and restoration work in the process.

Perhaps unwittingly, however, Mr. Kennedy has walked into the middle of two separate but closely related controversies, one having to do with Montana's stream-access laws - that one will be the subject of a mediation session next week - and the other relating to conservation easements.

Both issues, ultimately, are about class, and point to the need for new policies (and vigilance) in policing the conservation easement system and defending access to public lands and water. Just as important, though, Mr. Kennedy's Ruby Valley imbroglio underscores the need for a deeper sense of noblesse oblige among the ultra-rich as they buy up great swaths of the American West.

Montana's 20-year-old stream-access law, which declares that the state's rivers and streams are public property up to the high-water mark, provides a clear window into land-use battles. The law, among the strongest in the nation, has survived numerous legal challenges and become a source of pride for many Montanans (including Gov. Brian Schweitzer), though it's still fiercely opposed by property-rights advocates.

The law does not require property owners to provide entry to waterways through their own land, but it does permit access from any public property. As a result, among the most common access points are county bridges. That's where Mr. Kennedy has run into trouble: his ranch includes all or parts of two bridges that cross the Ruby River, and he has blocked access by reinforcing old fencing along those bridges. Stream-access advocates have sued the county for allowing the fences, setting the stage for a showdown on a controversy that has raged for almost a decade.

Mr. Kennedy claims that the bridges are neither safe nor legal river-access sites. More to the point, though, he says allowing public access would damage the riparian habitat and destroy a fragile fishery that he has spent a lot of time and money nursing back to health. That's a similar argument to one being made by the brokerage mogul Charles Schwab, the rock musician Huey Lewis and others who are fighting to keep the public off a waterway south of Missoula where they own property.

And that brings us to the second controversy. Much of Mr. Kennedy's Ruby Valley property is in a conservation easement, an arrangement under which property owners receive tax breaks for forgoing development on ecologically sensitive lands. Easements have been under fire in Congress in the wake of revelations that some developers were claiming conservation easements for golf courses (hey, it's open space, right?) and otherwise gaming the system.

While Mr. Kennedy's Ruby Valley easements are not cover for a golf course, they do have one unfortunate feature: Mr. Kennedy is the president of the land trust that is supposed to serve as the enforcer of the easement agreement. That's exactly the kind of arrangement that rightly gets easement critics up in arms.

Easements have proved to be a very effective means of encouraging land conservation and habitat preservation. But there's something wrong when a billionaire buys a ranch, gets a tax break for an easement and then chases the locals off the river in the name of conservation.

Class, of course, is an issue here. Consider the people who are fighting for access to the river: retired miners and schoolteachers and other working folk, some of whom grew up fishing the local waters and some of whom couldn't give a hoot about fishing but hate seeing the landscape walled off. But there's also wider a social issue involved: if land and water conservation and wildlife protection come to be seen as things that only benefit the rich, it will reinforce the perception that conservation is a luxury of the elite rather than a universal concern.

If class warfare breaks out in Montana, the environment is going to suffer. So what do we do? As Jon Christensen and Terry Anderson, two of the West's leading thinkers on conservation issues, have pointed out, the conservation easement system needs to be better policed. For starters, appraisers - working with state and federal tax authorities - should establish appraisal standards for easement donations. Moreover, the land trusts should work together to set up an accreditation system, and Congress could mandate that tax deductions be available only for donations to accredited land trusts.

When it comes to public access, state and local officials - and voters - need to recognize that the heavy bias toward property rights that exists throughout the West is something that will increasingly serve a small minority of wealthy landowners, not mom-and-pop homesteaders or family farmers. This imbalance needs to change. County commissioners, who are often on the front lines, can't allow themselves to be intimidated by the threat of litigation over access issues. And they need strong back-up from state attorneys general.

But a big part of the solution is in the hands of the landowners themselves. In an era of economic policies that are producing an ever-larger group of the super-rich, those who are wealthier than the rest of us have a responsibility to manage their properties at least partly in the public interest.

They need to meet with their neighbors, get involved with the community and find compromises that work for everyone. In most cases, the locals will be more than receptive to even small gestures. After all, who wants to fight when the fish are biting?

Jonathan Weber is the founder and editor in chief of NewWest.Net, an online publication about the Rocky Mountain West."