Errol Rice - April 12, 2007
Montana Stockgrowers Association
Stream Access
THE MONTANA STREAM ACCESS LAW- WHY IS THE LEGISLATURE CREATING CONFLICT?
By: Errol Rice
Executive Vice President, Montana Stockgrowers Association
In this legislature there has been an unnecessary strain placed on ranchers and recreationists relationships in Montana. This strain has been caused primarily over the issue of access to streams and rivers from county road bridge crossings. The controversy has surrounded only a handful of bridge sites in Southwestern Montana. SB 78, as recently passed by the Montana Senate and rejected by the House and now brought back to life by an outlandish amendatory veto by the Governor, does not and will not solve the issue of stream access at county road bridge sites. SB 78 forces the entire ranching industry into a special interest access coalition blood feud against a handful of problematic wealthy non traditional landowners and in fact, the legislation and the Governor’s amendments are so flawed that litigation and or disputes are going to be the end product of the measure. The Montana Stockgrowers Association and other landowner groups worked hard with access advocates in the mid-1980's to craft Montana's Stream Access Law (MSAL). The Montana Stream Access Law was very controversial when it was debated, and passed, but by and large has resolved disputes between landowners and recreationists over where and how Montana's streams and rivers are used by the recreating public. Montana Stockgrowers Association has stood by its 1985 compromise agreement and has never challenged the Montana Stream Access Law in spite of numerous offers to do so by landowners and ranchers who believe the text of the law to be a threat to property rights. In spite of the success of the Montana Stream Access Law, others who agreed to the law, and its limitations, have not honored the agreement. Chief among those who agreed to the Montana Stream Access Law, but now are actively seeking its expansion, is the Montana Department of Fish, Wildlife & Parks and other access agenda driven groups like the Montana Trout Unlimited and Montana Wildlife Federation.
First, SB 78 was drafted and supported by Department of Fish, Wildlife and Parks, Trout Unlimited and other access interest’s personnel since its inception. Never, was the Montana Stockgrowers Association or other landowner groups contacted to be a part of the process. As a result, the Bill seeks to take property adjacent to county bridge crossings under the guise that all easements accompanying county roads are the same and that county bridge sites are all legal access sites. This position violates express provisions of the Montana Stream Access Law as well as existing law on the scope and use of county road easements, in particular those roads created by use or prescription. SB 78 also places landowners and Montana’s County Commissioners in an impossible circumstance when it comes to the simple act of a rancher desiring to attach a fence to a county bridge. Throughout Montana there are hundreds if not thousands of areas where a livestock fence is attached to a bridge. The obvious purpose of these fences is to keep livestock from wandering onto roadways and putting the recreating public in danger. Yet SB 78 requires 3 pages of legislation for a mis-guided process the counties and landowners will have to comply with in order to simply attach a livestock fence to a bridge. The definitions and process prescribed in the legislation will place both ranchers and counties in a position where compliance with the law may be impossible to achieve.
Second, Department of Fish, Wildlife and Parks is also directly involved in the Court system to expand the type of water open for access under the Montana Stream Access Law. When passed in 1985 the law was expressly limited to natural water bodies and expressly kept water diverted away from streams and rivers outside the scope of open public access. Now Department of Fish, Wildlife and Parks is seeking to expand the water which the public may access under the Montana Stream Access Law to waters "capable of recreational use". This position has been directly articulated to the Montana Supreme Court in a case which Department of Fish Wildlife and Parks actively litigated against landowners and water user companies in Ravalli County. In spite of losing in the District Court, Department of Fish Wildlife and Parks appealed the decision and now is openly asking Montana’s high court to ignore clear limitations of the Montana Stream Access Law. If agreed to by the high court ditches, canals, ponds, artificial wetlands, or any other wet area on land may be open as "capable of recreational use".
Unfortunately for ranchers and recreationists, the state agency and the Governor, who is a rancher should be advocating for BOTH interests, but their position is only myopic. Department of Fish Wildlife and Parks is driven by an access agenda, the result of which will only heighten tension between ranchers and sportsmen. In spite of ranchers being left out of the process in crafting SB 78, Montana Stockgrowers Association and other landowner groups will continue to attempt to reach policy decisions which truly balance the rights of ranchers and the interests of the recreating public. In fact, Department of Fish Wildlife and Parks already has a legislatively authorized program to acquire access at county road bridge sites. They simply don’t use the program. Fortunately, many legislators also recognize Department of Fish Wildlife and Park’s and Trout Unlimited’s mis-guided approaches and are working on other efforts to balance the competing rights of both ranchers and recreationists. Department of Fish Wildlife and Parks has a bumper sticker which advises to "ask first before hunting and fishing on private property". It’s just too bad the agency won't practice what it preaches.
If Montana’s sportsmen and rancher relationships are only luke warm as it relates to access, shoving this measure down our throats has just caused ranchers to travel down the road of total public shut out. This is Errol Rice with the Montana Stockgrowers Association.
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