2007 Legislature Is Underway

Montana Stream Access: New Legislature, Old Problem

By Dan Testa, 1-10-07

Fishing is hard. Like other outdoor pursuits, conditions for success have to be just right. The proper season, temperature, lure, line-weight and a host of other factors determine whether you go home to grill trout filets or pick up a Whopper from the drive-through.

The process by which a bill becomes law is no less difficult, particularly when that bill seeks to end the conflict over stream access between private landowners and river-users that has been going on in Montana for years.

But this session, conditions in the State Legislature could be just right.

Wednesday the architects of SB78 met to discuss the definition of words like “adequate” as it applies to access and other trouble areas in advance of the bill’s introductory hearing before the Senate Fish and Game Committee next Thursday, Jan. 18th.

The meeting’s attendees included Governor Schweitzer’s Chief Policy Adviser Hal Harper, a few county commissioners, representatives of Trout Unlimited, the Montana Wildlife Federation, the Dept. of Fish, Wildlife and Parks, and lawmakers from the House and Senate Fish and Game committees.

Sponsored by Sen. Lane Larson, D-Billings, the bill would define and codify public access to streams and rivers from a county bridge adjacent to private property. Under the law, ranchers wishing to control livestock or private landowners with other uses would be allowed to attach fences to county road bridges or abutments, so long as the fence provides “adequate” public access to streams and rivers.

Landowners attaching a fence to a public access point would, for example, be required to cover a few feet of their barbed wire fence with PVC piping, use smooth wire at that section, or build a gate. The bill provides $10,000 in funding to the Department of Fish, Wildlife and Parks to reimburse landowners for steps they take to improve access, and outlines how an arbitration committee would settle disputes.

“They’re doing it now,” said Larson, referring to the actions of private landowners to attach fences. “They’re not attempting to keep their cows in, they’re attempting to keep people out.”

Fish, Wildlife and Parks studies conclude that there are 131 river access sites in Montana impeded by a fence or uncooperative landowner. But Larson is clear that that there are about six spots throughout the state that are real problems, mostly along the Ruby River in Madison County.

Opposition to the bill will likely come from some landowners, many of whom were not at Wednesday's meetings but will likely be at the bill's first committee reading next week. County Commissioners may also be opposed to the bill, many of them reluctant to relinquish authority over what constitutes “enhanced” or “adequate” access.

“I truly am OK with enhanced access as it applies to a fence,” said Yellowstone County Commissioner John Ostlund, but only as long as that decision remained within the discretion of the county commissioners. “We’ll do everything we can so that we don’t have fences across creeks.”

Ostlund was also wary of the definition of “enhanced” being construed to require counties to construct stairways or other major improvements in cases where a bridge is 30 feet higher than the river.

Larson carried a similar bill, HB560, last session, which died in the House Committee with Republicans voting against it along party lines. The bill, Larson said, was “just too encompassing.”

At the meeting, all parties said they felt they could bring a workable bill before the committee.

“I really think we have an opportunity this session to get this taken care of,” Larson said.

Everyone in the meeting agreed that this is probably the last chance for the legislature to resolve the stream access problem. If it doesn’t happen here, then another branch of government will have a crack at it: when the next inevitable stream access lawsuit goes before the court.

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