Access Remains No. 1 Issue

Access advocates are at least trying to play offense for a change

By Rob Breeding

Two public access bills have been added to the mix in Helena. I’m not sure of the fate of either proposal, but I’m watching them with great interest. The bills remind me that the “Access War” isn’t going away soon. But access advocates are at least trying to play offense for a change.

Both bills have been introduced in the House of Representatives. HB 304 would increase the fine landowners have to pay for blocking access to a public road from $10 to $500 per day.

The second piece of legislation, HB 286 may be even more provocative. It requires that roads remain open to public access during the dispute over its legal status. As things now stand, once the gates and “No Trespassing” signs go up, the public is locked out until the often lengthy legal process plods to a resolution.

Consider what happened in two of the recent fights over access to Montana rivers. On the Bitterroot River public access was blocked on Mitchell Slough for more than 15 years. And on the Ruby River, despite a resounding victory for the public in the Montana Supreme Court, access to the waterway is still being hashed out.

These are cases involving rivers rather than roads, but the basic principle that the public was long locked out of places it had a legal right to enter is disturbing.

I’m all for the bill in spirit. One of the strategies of the anti-access movement is to lock gates first, then delay, delay, delay. If not for the grassroots access movement in Montana that has risen up in response to disputes such as the Bitterroot and the Ruby, those delay tactics might have resulted in permanent closures.

A law such as the one proposed by HB 286 would be interesting to watch if it becomes law. Essentially, you’re going to have to have an intermediate body – the bill gives this responsibility to county commissioners – that will determine if the landowner has the right to block access. Parties that disagree may still pursue their case in court, but the commissioners will decide if the gates go up first.

You might think that this will be good for access rights, and in some counties that might be the case. However, the history of county commissioners on access issues is spotty at best. The commissioners in Madison County, for instance, have been overtly hostile to access rights on the Ruby River. I can’t imagine they’d be any better if they were judging a road dispute.

Even if the county commission isn’t the right forum, I like the idea of creating some sort of access arbiter that might be able to head off some of these disputes before they enter the costly and time consuming legal system. Such a system could work for both landowners as well, allowing them to protect their property rights where the evidence seems clear their claim is legitimate. The concept might best be organized at the state level rather than at the counties where decisions may be based more on local politics than a fair analysis of the history of public use on the road in question.

The other bill, HB 304, seems like a no-brainer even if $500 isn’t the correct amount for the proposed fine. If a landowner locks a gate that person has no right to lock, forcing the public into a lengthy legal battle, then that landowner should pay significant fines if the case is resolved against them. If the fine is large enough it may serve as a disincentive for the delay tactic and folks will instead work out reasonable compromises.

I don’t know if either bill has a chance of passage, but I am encouraged by the going-on-the-offensive approach both suggest. Most of the big wins in recent years have been cases where the public fought to regain access to places it lost when unjustified “No Trespassing” signs went up.

New laws should make it harder to deny access and create a path toward reasonable solutions that protect landowners and the public.

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