Every effort of the last two legislative sessions has died, but Rep. Kendall Van Dyk, D-Billings, is hoping this time might be different.
“This is a compromise between sportsmen and landowners,” he said last week.
The bill is up for what is expected to be a packed public hearing Tuesday at the 2009 Montana Legislature.
The bill Van Dyk is sponsoring is simpler than previous efforts and comes after 16 months of working with landowners and sportsmen groups to find common ground. It also has bipartisan support, including four Republican co-sponsors, and proponents including Attorney General Steve Bullock and cattle groups.
The issue has its roots in the state's unique 1985 Stream Access Law, which states that rivers and streams belong to the people of the state and that citizens may access them, regardless of who owns the land abutting the stream, provided they stay below the high-water mark.
Ranchers often attach fences to bridges to keep cattle either out of waterways or off the road. In most parts of the state, said Craig Sharpe, executive director of the Montana Wildlife Federation, one of Montana's largest conservation groups who worked on HB190, these fences are clearly intended to keep cattle, not people, out of streams and cause no problems. People just pull apart two strands of barbed wire, walk through the fence and landowners have no problems.
But the Ruby River in Madison County seems to be a special case. A few landowners, namely James Kennedy, a billionaire heir to a media fortune from Atlanta, have resisted efforts to allow the public to access public waters from public bridges crossing their land.
In 2000, Attorney General Joe Mazurek issued a formal opinion upholding the right of bridge access. Attorney general opinions carry the weight of law unless changed by the Legislature or overruled by a judge.
But Mazurek's opinion hardly resolved the issue. For the last four years, Kennedy and others have been fighting a Madison County court battle contending that the public right of way at bridges narrows to the exact width of the bridge, meaning anyone who stepped off the bridge would be trespassing.
District Judge Loren Tucker rejected that argument in his October 2008 ruling, but he also upheld the right of landowners to attach fences to bridges.
In the 2007 Legislature, lawmakers tried to negotiate some way that would allow landowners to fence to bridges and shield them from lawsuits if a member of the public got hurt on their fence, while also guaranteeing that the public would still have access to waters from public bridges.
Sharpe said he thought the 2007 bill became so lengthy and complicated, it could not pass.
HB190 is short, and includes things important to both cattle growers and sportsmen.
It states that citizens may access rivers and streams from a bridge, the bridge right of way and abutments or from a county road. It also says that when someone is getting to the water from a bridge, they must stay within the public right-of-way.
If a dispute arises, the bill lays out a plan for how the Department of Fish, Wildlife and Parks will resolve it: The agency will work with the landowner to find a way to keep livestock out and let people in. If, after 60 days, the landowner hasn't done anything, the agency will provide a list of fencing options. If another 30 days go by, the agency will install - and pay for - some kind of proper fence that doesn't keep people from using the bridge to get to public waters.
Other private groups can also help pay for fence changes. Van Dyk said the intent is that landowners be reimbursed for any costs associated with allowing public access through their fences.
Once a “legal fence” has been installed, the landowner is exempt from any liability, meaning someone can't sue the landowner.
The bill has bipartisan support: Several Republican lawmakers have co-sponsored it, including Sen. Jeff Essmann, R-Billings, and Rep. Tom McGillvray, also of Billings.
Van Dyk said the bill is a good deal for everyone, except, perhaps, “rich out-of-staters” who want to buy exclusive river access.
“If a rich, out-of-stater wants to buy access to rivers and streams, I know some incredibly pretty places in Wyoming they can look at,” he said.
Attorney General Steve Bullock, a Democrat who campaigned on public access in his November 2008 election, also supports it. As a young lawyer working for Mazurek, Bullock wrote the 2000 attorney general's opinion that first formally established bridge access.
Bullock said the bill enshrines not only the original opinion, but also Tucker's court decision of last October.
“We need to minimize the impact on private landowners,” Bullock said. Van Dyk's bill does that while protecting “the core of Montana heritage” of public fishing, he said.
Gov. Brian Schweitzer also supports the bill, saying he wanted to “keep the Angus off the roads and the fisherman on the river. This bill does both.”
The Montana Stockgrowers Association was one of the groups that helped craft the bill. Jay Bodner, a spokesman for the group, said Friday that the group would support the bill with a few changes.
The cattle group, whose support is seen as important to passing the measure, wants to be sure that a rancher's fences across the right of way can't be seen as an illegal encroachment across public space.
Additionally, the group has some concerns about a special kind of public easement and has proposed changes to the bill to clarify their worries.
“We would support it with those amendments,” Bodner said. “We're still talking to the (Van Dyk) and all the working group members. It's been pretty civil.”
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Mulligan wrote on Jan 11, 2009 11:39 AM:
" Allan: This bill is discussing "public" bridges, not private bridges. If you're on my bridge, you're trespassing and I won't hesitate to call the Sheriff. The land has been recently posted more extensively than it was thanks to some ignoramus claiming he had a right to park on private property to access the river based on the stream access law. His party included two vehicles, two dogs, two adults and two children none of whom were below the high water mark, but frollicking smack dab on my property.
If you want to wade down the river, that's legal, but you don't get access to my property. If you came to my house and asked politely, I might allow it. But you have to agree not to bring your pooping dogs or your screaming children.
It would be also be expected that you won't relieve yourself of any bodily waste anywhere on my land, or leave beer cans or any other kind of trash, thank you very much.
I am a native Montanan, born and raised. I am not wealthy and I vote liberal Democrat. So you can stick the stereotypes in your ear. "
If you want to wade down the river, that's legal, but you don't get access to my property. If you came to my house and asked politely, I might allow it. But you have to agree not to bring your pooping dogs or your screaming children.
It would be also be expected that you won't relieve yourself of any bodily waste anywhere on my land, or leave beer cans or any other kind of trash, thank you very much.
I am a native Montanan, born and raised. I am not wealthy and I vote liberal Democrat. So you can stick the stereotypes in your ear. "
Len wrote on Jan 11, 2009 2:11 PM:
" This bill seems to be ok for what is actually qouted . Is there more added Not Quoted ? In regards to a private bridge over a Public stream the private part(s) could not impede or restrict in any way Public water or crafts borne upon those waters, including access within such high water marks. If, In the public interests such a structure would be proposed and accepted for Building ,a route or avenue shall be created to not impede or restrict foot traffic up down around or thru such structers to be spanned over Public Waterways, up to such High water marks. In so as much language related to this subject, an expectation is to preserved for ever, any interests of the Public Over ANY private interests either side of the Publics waterway. In simple language ,,ya can't fence across and can't stop someone from being at the river because of a bridge ,,, even if it were to be Privately Built owned and maintained . General public floaters , boats , waders ,walkers need no artificail man made obstructions to pre Empt Their RIGHT OF PASSAGE On the Public STREAM . A High Watermark BED which can be pretty wide in flood plain identification, if taken literally and accompished should be yearly marked as to just how high the water inundated such as it's natural body has flooded , could redraw private land ownership. Eventually this will come to Be. "
Jerry wrote on Jan 11, 2009 3:31 PM:
" Mulligan: You knew that Allan didn't intend to refer to private bridges (which also must comply with the law, right?), but you kicked his butt for that anyway. Shame on you Mulligan. It appears that you fit perfectly into Allan's stereotype, which, thanks to you, may now include landowners who hate recreational users of streams AND pooping dogs AND frollicking children. Allan's point (the real one that you chose not to comment on) was that if Allan has the immediate right to fish in a stream (which he does, right?), he should not have to wait until a landowner (perhaps one like you?) decides or is forced to comply with the law. Isn't that a valid point? Mulligan, you vented about things that had nothing to do with the article. That was rude and disruptive to those of us who genuinely are concerned about what the ARTICLE actually was about. In the future, please try to limit your comments to the actual topic. Also, you should consider apologizing to Allan who, unlike you, had a valid point on the ACTUAL topic. Perhaps you would be happier if you moved away. Or, you could contact your legislators and ask them to insert something into the bill about pooping dogs and screaming children. Although I don't have a pooping dog, I do have a couple of screaming children, so I'm with you on that part, buddy. You go boy. "
Ed wrote on Jan 12, 2009 9:23 AM:
" Class warfare is alive and well. It's more the attitudes of individuals like Allan and Len that are causing the problems. Conscientous and respectful sportsmen will ask permission to fish contested water. Len's idea to extend the "high water mark" to include the floodplain is ridiculous. "
allan wrote on Jan 11, 2009 7:49 AM: