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Madison v. Graham



A group of landowners challenged the constitutionality of a Montana stream access law, alleging it violated the Due Process Clause of the Fourteenth Amendment[1] and was void for vagueness. The district court held that the landowners actually alleged a Fifth Amendment takings claim[2] instead of a due process claim and that the landowners had failed to properly plead the vagueness claim.[3] Therefore, the district court dismissed for failure to state a claim.[4] The landowners appealed, and the Ninth Circuit affirmed.

The contested state law declared that “all surface waters that are capable of recreational use may be used so by the public without regard to the ownership of the land underlying the waters.”[5] The landowners all owned properties crossed by streams subject to this law. Therefore, even though under Montana law these landowners owned the land under the water,[6] they were unable to restrict the recreational use of the water by the public.

The Ninth Circuit reviewed the case de novo. First, the court addressed whether the landowners’ “claim that a statute precludes private property owners from excluding others from their property must be analyzed” as a substantive due process or a takings claim.[7] The court relied on another Ninth Circuit case, Armendariz v. Penman,[8] which held that the “‘explicit textual source of constitutional protection’ against ‘private takings'” is found in the Takings Clause of the Fifth Amendment and, therefore, that clause must be used to review claims of private takings.[9] According to the Ninth Circuit, Armendariz extended the principles of the Supreme Court case, Graham v. Connor,[10] which held that an excessive use of force case must be brought under the “explicit textual source of constitutional protection” in the Fourteenth Amendment and not under substantive due process rights.[11]

The landowners argued that their claim only asked for declaratory and injunctive relief and therefore could not be characterized as a takings claim. The Ninth Circuit responded by pointing out that landowners in the past have sought injunctive and declaratory relief when challenging an alleged taking under the Constitution.[12] In addition, the landowners argued that Armendariz was not good law after the Supreme Court’s decision in Eastern Enterprises v. Apfel,[13] and because Armendariz was a private takings case as opposed to a public taking. In response, the Ninth Circuit pointed to its decision in Esplanade Properties, LLC v. City of Seattle (Esplanade),[14] a public takings case, which found that Eastern Enterprises did not disturb Armendariz.[15] The court in Esplanade explained that none of the justices in the majority in Eastern Enterprises had found that the law in question was unconstitutional under a substantive due process claim.[16] Instead, Justice O’Connor, writing for the plurality, held that the law violated the Takings Clause, but declined to address the due process claim.[17] Thus, the Ninth Circuit affirmed its decision in Esplanade that Armendariz was good law. The court determined that a takings claim was required to address the landowner’s harm, but that the landowners failed to make such a claim. Therefore, the Ninth Circuit held that the landowners failed to allege a substantive due process claim and affirmed the district court’s dismissal.

Second, the Ninth Circuit addressed the landowners’ argument that the Montana law was void because it was unconstitutionally vague. The landowners in particular pointed to the fact that the state legislature did not address the legality of portage around natural barriers, instead only addressing those around artificial barriers. The Ninth Circuit affirmed the district court’s decision dismissing the claim because the landowners did not allege in their complaint that the streams that crossed their properties had natural barriers requiring portage beyond the high water mark. In addition, the Ninth Circuit found no problem with vagueness regardless of the content of the complaint. Therefore, the court affirmed the district court’s decision on the vagueness issue and dismissed the complaint with prejudice.


[1] U.S. Const. amend. XIV, § 1.

[2] U.S. Const. amend. V.

[3] Madison v. Graham, 126 F. Supp. 2d 1320, 1324, 1327-28 (D. Mont. 2001).

[4] Id. at 1328; Fed. R. Civ. P. 12(b)(6).

[5] Mont. Code Ann. § 23-3-302(1) (2002).

[6] Mont. Code Ann. §§ 23-2-309, 22-2-322, 70-16-201(2002).

[7] Madison v. Graham, 316 F.3d 867, 870 (9th Cir. 2002), cert. denied, 123 S. Ct. 221 (2003).

[8] 75 F.3d 1311 (9th Cir. 1996).

[9] Id. at 1324 (internal quotation marks omitted).

[10] 490 U.S. 386 (1989).

[11] Id. at 395.

[12] E.g., Daniel v. County of Santa Barbara, 288 F.3d 375, 384-85 (9th Cir. 2002).

[13] 524 U.S. 498 (1998).

[14] 307 F.3d 978 (9th Cir. 2002).

[15] Id. at 982-83.

[16] Id.

[17] Eastern Enterprises, 524 U.S. at 538.

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