Rough Waters Ahead for Stream Access Bill

By Daniel Testa, 1-18-07

Jack D. Jones, 70, grew up in Bozeman, and has been fishing for 60 years. He remembers the time in Montana when access to a river or stream was decided by a knock on the landowner’s door and a handshake. While in many places that’s still true, Jones is concerned about the fishing access his grandchildren will have.

“I’m speaking for the younger generation,” he said, testifying in support of Senate Bill 78, which clarifies Montana’s stream access law as it applies to access from bridges. “Most of this is related to the influx of wealthy, out-of-state, part-time residents.”

Nearly everyone who testified said they wished conflicts between landowners and recreationalists over stream access at county bridges could be resolved with verbal agreements. But with a lawsuit pending in Madison County, proponents of the bill conceded that if the legislature couldn’t resolve this issue of stream access, the courts eventually would.

Speaking before the Senate Fish and Game Committee, Sen. Lane Larson, D-Billings, described how SB78 would define public access to streams and rivers from county bridges adjacent to, or cutting through private property.

Under Larson’s bill, landowners attaching a fence to a public access point could, for example, be required to cover a few feet of barbed wire with PVC piping, or use smooth wire at that section, or build a gate. Basically, a fence would be allowed so long as it doesn’t obstruct an able-bodied person trying to get over, under or through it.

Larson emphasized the narrow scope of the bill. It doesn’t tackle any parking issues, force landowners to build gates, or obligate county commissioners to create access where, for example, a bridge is 30 feet above the river.

“Sometimes a public access point at a bridge can be taken care of very simply,” Larson said. “This is a bill that sticks to the point.”

The bill also provides $10,000 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 in district court.

As happens with many bills at this early stage – particularly controversial ones – Larson drafted eight pages of amendments that the committee received shortly before the hearing and that no one testifying had yet seen. Larson explained the amendments removed any liability from landowners or the county in the event that a recreationalist is injured at an access point. The amendments also make clear that authority over these access points rests with the county commissioners. The Department of Fish, Wildlife and Parks would act solely in an advisory role.

“This is one of the most basic stream access bills I’ve ever seen,” said Hal Harper, the governor’s chief policy adviser, speaking in support of the measure. “This bill offers county commissioners the certainty they need to go forward,” while also protecting private-property rights and the public’s right of access.

“It’s critical that we have the cherished access we need,” said Mark Aagenes of Trout Unlimited, who helped draft the bill.

Sportsmen from organizations throughout Montana lined up to voice their support for SB78.

Opposition came from the Montana Stockgrowers Association, the Farm Bureau Federation and landowners concerned with what they saw as the further erosion of private property rights. Landowners also bristled at the prospect of having to go through a regulatory process just to attach or mend a fence on their own land.

“I don’t think it’s going to solve conflict, it’s going to create conflict,” said John Bloomquist, an attorney for the Stockgrowers Association. “This is a litigator’s dream. There’s litigation all over this bill.”

SB78 wrongly assumes an easement granted to a county bridge extends down to the private land on either side, Bloomquist said. That easement allows a 60-foot wide right-of-way, except at bridges, but the bill assumes the 60-foot rule applies at bridges as well, he said.

Bloomquist also questioned why the FWP doesn’t use its Fishing Access Enhancement Program to provide more places for recreationalists to get on the river.

“I submit that that’s the solution,” Bloomquist said of the FWP program. “Why isn’t that program being utilized?”

Fred Finke, a Big Sandy ranch owner and farmer also opposed the bill.

“This bill, if passed, will create problems where none exist,” Finke said.

“Who is responsible for garbage or gates left open?” Finke said of the access points. “If you would like to have access, simply ask. It’s just common courtesy.”

Larson introduced a similar bill, HB560, last session, which died in the House Committee with Republicans voting against it along party lines. The bill could face the same fate this session when it leaves the Senate.

Referring to SB78 last week, the Chairman of the House Fish, Wildlife and Parks Committee made clear the bill’s future is grim.

“This bill, as it’s written right now, would have a very slim chance of getting through,” said Rep. Mike Milburn, R-Cascade. “I’m not painting a rosy picture – purposefully.”