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The Legislature and Stream Access PoliticsJohn Gibson PLWA President
It is not over yet.
Yes, we have won two very decisive legal victories in the last few months These decisions have helped to clear up the stream access picture. With the District Court decision on the Ruby River followed by the Supreme Court opinion on Mitchell Slough recreation water users are in a far better shape than we were before.
But it is not over yet!
As I write this there have been FOUR BILLS bill drafted by legislators to deal with stream access at bridges on county roads. You can bet they are not all favorable to fishermen and boaters.
As I look at the makeup of legislative committees it’s a mixed bag. In the House the Chairman is a real advocate for public access. The remainder of the committee, however, contains many of the same names of those who worked hard to defeat SB 78 during the last legislative session. There are also new members who’s views are not known and we are missing some strong supporters who have moved on to other committees.
The District Court Judge stated that fences on the easement and tied to the bridge railing were not encroachments as long as they have been authorized by the County Commissioners. Keep in mind, however, that many of these fences were authorized before the Commissioners were aware of the legal decision that the public could access the stream along the entire 60 foot wide easement.
There are statutes on the books that define a legal fence in Montana. MCA-1999, 81-4-101 defines the maximum height of a legal fence to be between 44 and 48 inches. It would seem doubtful that county commissioners would authorize illegal fences at bridges since, with their authorization, the liability has shifted to them.
There is presently orange paint and signs that would prohibit access at bridges within the 60 foot easements on county roads : No question that the these have to go.
And of course there is the monster lurking behind the curtain…That is the 20 to 25 percent of the well traveled and county maintained roads out there that have never been accepted as formal county roads . Their status is unknown. Likely, there is a prescriptive easement on many of these roads but the easement width and other conditions are unknown. The average Montanan cannot tell a petitioned county road from one of these non status roads.
Something has to be done about the many miles of roads in this category. There are lawyers who are making a career of challenging public use of these roads. Montana citizens are being shut out of access to public land and water.
If there is one thing we need to tell our legislators it should be that this mess must be cleaned up.
External Article / Resource
Ruby River Welcome