Montana Legislature

A Vast Difference Between Stream Access Bills

By Dan Testa, 2-20-07

A second stream access bill is now meandering its way through the Montana legislature, this time in the House.

Like the bill recently passed by the Senate, House Bill 642 seeks to resolve the decades-old conflict between landowners and recreationists over stream access from bridges on county roads.

But the bill that came before the House Fish, Wildlife and Parks Committee Tuesday could not be more different from the Senate’s.

Nearly everyone who opposed the Senate bill, like representatives from the Montana Stockgrowers Association and the Farm Bureau Federation, rose in support of the House bill. And – predictably – many of those who helped craft the Senate bill, like spokesmen from Trout Unlimited and the Department of Fish, Wildlife and Parks, spoke up against the House bill.

The sponsor and Chair of the Fish, Wildlife and Parks Committee, Rep. Mike Milburn, R-Cascade, introduced his bill by saying the Senate’s version, “asked for too much.”

“It did not meet the criteria of protecting constitutional rights of the landowner,” Milburn said of the Senate bill. “We have to come back with another workable solution.”

The major difference between the two bills lies in the assumption by the Senate bill, based on a 2000 Attorney General’s opinion, that the width of the easement on county roads passing through private property extends to bridges. So when a fisherman accesses a stream from such a point, he is traveling on public land.

Supporters of the Senate bill say it grants a landowner adjacent to a county bridge the right to attach a fence to the abutment over that public land, which is currently prohibited.

The House bill attacks the problem from the opposite angle, asserting that the 2000 Attorney General’s opinion on county road easements only applied to a limited number of bridges in Madison County. The county road easement is no wider than the width of the road, so the landowner can already attach legal fences to bridge abutments because his private property extends right up to it.

Under the House bill, recreationists cannot cross this private property to access a stream without permission from the landowner.

The House bill puts the onus on the Department of Fish, Wildlife and Parks to work with landowners to develop and maintain access sites through its Fishing Access Enhancement Program.

John Bloomquist, an attorney for the Stockgrowers Association, said the bill provides a narrow means for the public to get off of county bridges into streams.

“It places the emphasis of access on an existing program,” Bloomquist said, referring to the Fishing Access Enhancement program. “If FWP goes out and works with landowners, many of these problems will go away.”

Tom Hougen, a rancher with land on the Musselshell river, said he favored the House bill over the Senate bill because it removed the liability at access points from landowners and puts it on FWP.

“Obviously we do have to have some type of enclosure to keep livestock from getting to the public road way,” Hougen said. “Don’t punish the many landowners that have, over the years, allowed access and there’s been no conflict.”

Opponents of the House bill argued that it misinterpreted the Attorney General’s opinion and would trample on the cherished right of public access to Montana’s waterways.

“I don’t believe we should have this situation where we should pay for access next to bridges where we already have a right,” said opponent Chris Gagnon, referring to the Fishing Access Enhancement Program. “If you vote for (the House bill), there’s really nothing wishy-washy about it, you are really making a vote that is anti-recreation.”

Mark Aagenes of Trout Unlimited said, “I really think this bill dramatically changes all the current interpretations of our laws on how we access rivers and streams. I get really nervous when we start thinking about having to pay for access across public rights of way.”

Bob Lane, chief counsel for FWP, said legal decisions on county road easements have always had broad interpretations for use, so that as society grows, power and phone lines can be erected in that easement. Stream access falls within that easement he said, adding that the Enhanced Access program doesn’t apply to bridge access.

Concluding, Milburn emphasized that Montanans have it good when it comes to stream access, but any legislation on the matter needs to stem from the foundation of protecting private property rights from public access—not the other way around.

“Let’s appreciate what we have,” Milburn said. “Let’s not ruin it for everyone else because we’re out for more.”

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