Debate Over Stream Access Begins Anew

By Beacon Staff

HELENA – Montana’s prolonged debate over public access to streams from county roads and bridges got its first airing of the 2009 legislative session on Tuesday when a House committee heard testimony on an access bill, then put off voting on it.

Rep. Kendall Van Dyk, D-Billings, said the bill he is sponsoring aims to minimize situations in which landowners’ fences impede stream access from county roads and bridges. Opponents of the measure include the Montana Stockgrowers Association, which finds the bill overly broad and said it would jeopardize private-property rights. The association proposed amendments, which Van Dyk asked the House Fish, Wildlife and Parks Committee to resist.

The issue of stream access from bridges spans several legislative sessions.

Van Dyk said his bill, prepared with the help of sportsmen and landowners, will finally address the issue if lawmakers leave the measure intact. The access controversy frustrated legislators in past years “when politics got in the way of clearer heads,” Rep. Wayne Stahl, R-Saco, said in urging committee support for the measure.

Its advocates include Montana Trout Unlimited and a number of other conservation groups, some farm organizations, the Montana Cattlemen’s Association, Attorney General Steve Bullock and Gov. Brian Schweitzer.

“If it seems simple, straightforward, factual and fair, that’s because it is,” said Bob Lane, chief lawyer for the Montana Department of Fish, Wildlife and Parks.

Montana’s stream-access law on the books for nearly 25 years says the public is entitled to access rivers and streams no matter who owns the land beneath them. The law also says people recreating may use rivers and streams up to the ordinary high-water mark.

Disputes have sometimes arisen when ranchers who own streamside land say they must control the movement of cattle and attach fences to county bridges. In some places, the fences have been configured in ways making it difficult for people to get past them and reach the water.

The issue has been particularly hot along the Ruby River in southwestern Montana, bringing allegations that rich, nonresident landowners use fences not for livestock control but to thwart the public. A court case in Madison County included James Cox Kennedy, a wealthy Atlanta media executive who owns land along the Ruby River.

In that case filed by the Public Lands Access Association — with Kennedy, Hamilton Ranches and the Montana Stockgrowers Association intervening — District Judge Loren Tucker in September affirmed the right to access streams from bridges. He also said property owners could install livestock fences at access points, as long as the public still could reach the water.

Among provisions of the Van Dyk bill: It lays out public access to rivers and streams for recreation, requires the Department of Fish, Wildlife and Parks to negotiate with landowners on ways to provide public access to water while maintaining livestock control, and provides for payment of expenses incurred in altering fences so people can pass through or over them.

The Montana Stockgrowers Association’s John Bloomquist said the bill is better than legislation presented in past years but likely would lead to conflicts. In calling for amendment of the measure, he said it could be used to give the public unwarranted access to private property between bridges and streams. If the state is going to sanction public use of private land, then constitutional protection against the taking of property must be addressed, said Bloomquist, a Helena lawyer who has represented Hamilton Ranches.

The House committee’s Rep. Ken Peterson, R-Billings, said the Van Dyk bill dilutes the responsibilities of county commissioners, people who understand the road and bridge systems in their areas and should be involved in policy decisions on matters such as crowd control at particularly popular stream-access points. In an interview, Van Dyk countered that Montana’s 56 counties “can potentially have 56 different interpretations of their obligation to provide access.”

Peterson also is sponsoring an access bill. The committee plans a hearing on it Thursday.