Montana Legislature

Stream Access Becomes a Three-Front War in Montana

By Dan Testa, 4-12-07

	Sen. Lane Larson, D-Billings, addresses the press flanked Sen. Larry Jent, D-Bozeman and anglers who gathered at the Capitol Thursday to support Larson's Senate Bill 78, which would clarify the legal ways a landowner can attach a fence to a county bridge abutment and still provide public access to the waterway. Photo by Dan Testa.

With the governor wading into the issue, the introduction of a new Republican bill to set up a two-year study, and a boisterous rally by Democrats and sportsmen Thursday, the stream access issue in the Montana Legislature has grown into a three-front war in the session’s final weeks.

But it is the nature of the Legislature that the more politicized and emotionally-charged an issue becomes, the less likely a solution will result, regardless of the problem’s simplicity.

You can practically see the marks in the hearing room carpet where lawmakers on either side of the issue are digging in their heels.

The stream access dispute is essentially a difference between landowners and recreationists over whether the land on either side of a county bridge is an easement or private property.

What this boils down to is fences.

And after months of study, amendments, hearings, meetings, debates, arguments, rallies and discreet hallway discussion, no one can agree on how to describe a fence that would allow fishermen to get through while keeping in cattle.

If you support Senate Bill 78, then anglers can access those rivers because they’re descending on public land and the bill provides landowners with a right they don’t currently have – to attach fences to county bridge abutments.

But agricultural interests represented by the Stockgrowers Association and Farm Bureau Federation question whether that easement applies to all county roads throughout the state, and argue SB78 represents the erosion of private property rights. They also say they have been deliberately excluded from meetings to craft SB78—that it is not the “consensus” bill its supporters say it is.

At Thursday’s hearing for House Joint Resolution 58, which sets up a committee to study the nuances of fence construction for two years, the SB78’s opponents spoke in support and vice versa.

The arguments and questions were identical to those raised in January meetings to craft Senate Bill 78, evidencing what little progress has been made over the last four months.

“Have any bills that you’ve seen defined what an acceptable fence is?” Rep. Ernie Dutton, R-Billings, asked Department of Fish, Wildlife and Parks Director Jeff Hagener. “Does every access need to be acceptable to someone with a wheelchair?”

Opponents of SB78 question whether imprecise language will lead to a ballooning of stream access until counties and landowners are obligated to construct parking lots, wheelchair and boat ramps at every bridge in Montana.

But during the hearing for the House Resolution, those who supported SB78 were visibly frustrated at the idea of putting off making a decision on stream access until 2009.

“I’m not sure what another study will do,” Mark Aagenes of Montana Trout Unlimited, who drafted much of SB78’s language, told the committee. “The interim study will not make a decision, it’s you guys that will make a decision.”

HJ58 sponsor Mike Milburn, R-Cascade, said he has been receiving “violent, threatening e-mails from sportsmen” over his opposition to SB78.

Milburn said his resolution is not an attempt to put off a decision on stream access, but that emotions are running so high on the issue it needs to be taken off the burner so a new process that includes landowners can begin.

“We just need to cool the jets,” he added.

Milburn criticized Gov. Brian Schweitzer’s move Wednesday to amend stream access provisions into an unrelated bill, preventing counties from being able to use state money unless the county bridges provide stream access for sportsmen.

“It’s hurting things,” Milburn said, adding that amending stream access provisions to an unrelated bill is unconstitutional.

Schweitzer disagrees.

“If a bill comes to me that would abridge the constitutional rights of Montanans, then I have a right to amend it,” Schweitzer said. “This is simply saying that we won’t use funds to restrict their constitutional rights.”

Schweitzer calls Milburn’s study resolution “a sham.”

“People who live in Montana know what a fence looks like to keep cattle in,” Schweitzer adds. “There’s not a whole lot more to study.”

Underscoring the simplicity of the issue, Milburn complimented the language Schweitzer used in his amendment to describe stream access, while objecting to the bill in which the governor included it.

As Schweitzer’s amended bill returns to the House floor for a vote this week, Democrats are framing the vote as a referendum on support for hunting and fishing rights, a deft piece of political Jiu-Jitsu that puts Republicans in a tight spot.

At Thursday’s news conference, Democrats said they will try another “blast” motion Saturday or Monday to bring SB78 to the House floor.

Anyone who has been paying attention to this legislature knows that when an issue gets political, don’t hold your breath for a satisfying solution, particularly one as simple and intractable as stream access.

In Thursday’s hearing, a spokesman for the Farm Bureau Federation, speaking in support of the resolution for Milburn’s two-year study, seemed to contradict himself.

“If cooler minds could prevail I think we could sit down in two hours and figure this thing out,” John Younberg said. “If we can try and find some resolution we can get away from a lot of controversy on this.”

It’s funny that in 25 years of conflict over stream access in Montana, no one has been able to carve out those two conciliatory hours. 

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