All Montanans have a constitutional right to access and make recreational use of streams. Full stop. The right exists, has been thoroughly tested in court and isn't going to be wished or finessed away by anybody.
Private property ownership also is a right, one Montanans cherish and protect.
The bill involves bridge abutments, of all things.
The public has the right to fish, float, swim or otherwise recreate anywhere within the ordinary high-water marks of streams. But people may not trespass on private property to reach streams. Either they must have permission to cross private property, or they must reach the stream through public access points, such as fishing access sites or across public land.
Or via public rights of way. That's where the bridges come in. The public owns a swath of land beneath and alongside public roads. When those rights of way cross streams, they create a perfectly legal place - where the bridge intersects the land - for people to access the stream without crossing private land. A binding state attorney general's opinion says it's so.
Some landowners don't like this or think it's right. They own the adjoining land and don't acknowledge the fact that the public right of way isn't limited to road and bridge traffic.
Complicating matters, bridge abutments make handy places to tie in fences. This common practice forces the public to clamber over barbed wire or worse to exercise their legal right of access. This can be as hard on the fences as it is on fishing waders.
Fences extending to bridge abutments have been trouble spots. Some landowners use these fences to discourage public access - that is, to deny other Montanans their rights. Some are mostly interested in keeping their livestock where it belongs, but find the public and its wear and tear on fences vexing. Meanwhile, many recreationists legitimately view the fences as barriers to their rights. Some consider the offense justification to disrespect and violate the legitimate property rights of the owners. This is a bigger problem in some counties than others, but the state Department of Fish, Wildlife and Parks lists 131 bridges statewide where legitimate public access to streams is “impeded or unavailable due to the presence of a fence or uncooperative landowner.”
One simple, obvious solution would be to bar anyone from stringing a fence into a public right of way. But that would be downright un-neighborly.
A far better solution is SB78, introduced by Sen. Lane Larson, D-Billings. Representing a thoughtful compromise of interests, this bill clarifies the rights of people on both sides of the fences, and it provides helpful remedies aimed at easing and preventing landowner-sportsman conflicts.
The bill's goal is “reasonable and safe public access” from county bridges, rights of way and abutments. And what it basically does is require that fences tying to bridges include some means of crossing the public right of way to the stream. This could be a gate, a stile, a step - perhaps even a piece of plastic pipe containing the top strand of barbed wire to permit stepping over without snagging.
Who would pay for these minor fence improvements? Sportsmen. The bill provides $10,000 a year for six years for the Department of Fish, Wildlife and Parks to reimburse landowners for the cost of compliance.
This bill attracted a lot of comment when it came up for hearing the other day - much of it positive. But it faces misguided opposition, too. That's too bad. As we said at the outset, anyone who respects the rights that exist under Montana's constitution should see SB78 as a problem-solver.
Let's be clear here: This bill promotes existing rights but doesn't expand anyone's rights. It doesn't allow anyone to enter private property without permission. It doesn't create any new liability for anyone. It will reduce damage and the need for irksome repairs on fences. And it will reduce landowner-sportsman conflicts.
The bill won't solve all problems. Litter, traffic, parking and rudeness are issues now and they'll likely be issues still needing management after this bill is signed into law. But this bill will smooth the waters, so to speak - considerably. It'll help keep landowners and sportsmen and counties out of court.
SB78 affirms and fosters respect for the legitimate rights existing on both sides of the fence, and it deserves passage into law.
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