Stream Access Via Levitation?

July 27, 2008 in 2007 Legislative Session, Economy & Business, Montana, Montana politics

by jhwygirl

A recent court case in Utah’s Supreme Court found that access to the state’s navigable rivers did, indeed, allow access not only to the water, but to the streambed underneath.

Yep – that one went all the way to the Supreme Court, folks. Private property owners made the case that floaters coming through their property committed criminal trespass every time their raft, paddles, or fishing tackle bumped the bottom of the river.

Consider this: The largest growing economic sector in Montana is tourism and recreation.

Could that come to Montana? The state does lay claim to some navigable waterways, including the streambeds and banks – see the PPL case – so those waters could be ruled out. But for other waters? The state’s Stream Access Law, laid out in 1984 by the Montana Supreme Court held that any river or stream that has the capability to be used for recreation, such as fishing and floating, can be used by the public regardless of whether or not the river is navigable and who is the owner of the streambed property.

Not that there aren’t issues. The 2007 state legislative session saw 3 bills proposed to try and clarify public access to the state’s waterways from bridges which cross such waterways. Trouble is, property owners are attaching fencing to the bridges – the public right-of-way – making stream access impossible.

None of the bills made it out of committee. Two of the bills – one, HJ 58, which was just to study the problem, the other HB 642, which was to define the access on the right-of-way easement and provide access with conditions, failed in committee due to the failure of both to meet deadlines for transmittal. Both of those bills were submitted by Mike Milburn (R-HD19).

The third bill, SB 78, made it a little further, but still died in committee after a 50-47 vote on the initial reading. Proposed by Lane Larson (D-SD22), the bill would have provided for public access from public rights-of-way, and would have reimbursed the owners of fences for alternations that would have been required to be made. If I recall correctly, $15,000 would have been put in an FWP fund to satisfy private property owners.

SB 78 failed to get to its second reading due to a party line vote.

Come now to July 2009. The Public Lands Access Association is now in court, and has sued Madison County for failing to remove encroachments (i.e., fences) attached to and on its public right-of-way.

The judge has said that he has some sense of how this should be resolved, but has not disclosed his position.

I wonder how the judge is going to rule? Who is going to have to remove the encroachment to the public right-of-way? Who is going to be burdened with that cost?

In some way it’d be a shame if it’s the local taxpayers, when a nominal funding to the FWP would have taken care of it. And it’d be a shame, too, if it’s shouldered on the private property owners who fought against all three of the bills.

Then again – maybe that is what you call poetic justice.