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This Land isYour LandMontana Sporting Journal
This Land Is Your Land
By Joshua Bergan, Montana Sporting Journal
(If you like this go to www.montanasportingjournal.com and subscribe.)
Access makes Montana Montana to hunters and anglers. It's what separates Montana's world-class fishing from Wyoming's and Colorado's, and its abundance of national forest, Bureau of Land Management property, block management and state-owned property allows hunters ample space to pursue their quarry. But there will always be opponents working to whittle it away, and sportsmen and women have fought and will continue to fight to maintain Montana's long-held sporting heritage.
The most recent swipe at Montana's stream access was perpetrated by the infamous Atlanta- media mogul James Cox Kennedy regarding a bridge on his Madison County property on the lower Ruby River southeast of Twin Bridges. In January of 2012, the public right-of-way on Seyler Lane, a historic prescriptive easement (which is basically public use of a road without permission of the landowner for five years - as opposed to the standard public county road that was created to be public), was deemed to be only the 16-foot paved road surface, as opposed to the standard county-road easement of 60-feet, by Madison County Judge Loren Tucker. The ruling clears the trail for other landowners on prescriptive easements to do the same (each road or bridge has to be ruled individually).
Enter the Public Lands/Water Access Association (PLWA), a non-profit citizen group working specifically to maintain and expand access to Montana's streams and public lands. The outfit appealed the lower court ruling to the state supreme court on behalf of those who recreate within high-water marks, and a hearing was held on April 29 at Montana State University in Bozeman (the final ruling was unavailable as of this writing).The esoteric nature of these cases can sometimes serve as a road-block for public interest and support. And especially during times of legislative sessions, it can be overwhelming and confusing. But if there's one thing to remember, it's that our abundant access will always be under attack.
Groups like PLWA, Montana Hunters and Anglers Action!, the Montana Wildlife Federation, the Montana Fish and Wildlife Conservation Trust, the Ruby Habitat Foundation (not access-specific but of particular relevance to aforementioned case), and many others stand up to big money, hometown nepotism, and cranky landowners like sow grizzlies to coyotes. We might not have the access we have today if not for the steadfast backbone of such organizations.
The esoteric nature of these cases can sometimes serve as a road-block for public interest and support. And especially during times of legislative sessions, it can be overwhelming and confusing. But if there's one thing to remember, it's that our abundant access will always be under attack.
Consider also the ongoing case of a county road that was gated by a landowner in Meagher County, blocking access to a patchwork of thousands of acres of Lewis & Clark National Forest north of White Sulphur Springs. Forest Road 6424 was ruled public in county records as far back as 1899, but the landowner claims the road has since been moved and is not the same right-of-way (he also claims to give friendly access with a phone call, but is rarely around to accommodate in my experience). A sign-in sheet accompanies the gate (so he can monitor accessees), at which point hunters and anglers can hike the road. This has implications for both hunters who want to access the elk and mule deer habitat and anglers looking to wet a line on Tenderfoot Creek.
In that case, Meagher County officials refused to confront the landowner despite recognizing FR 6424 as a public road, prompting then-Montana Attorney General Steve Bullock to step in.
"If the county is unwilling to enforce these laws to maintain public access on a county road, the State is prepared to do so," Bullock's office said in a statement. "It is the State's position that the petitioned county road extends without interruption through sections 30, 31 and 32. I believe that a court would declare a public right of access all the way to Tenderfoot Creek despite (the landowner's) claim that the road has moved since it was originally petitioned and accepted as a county road..."
Even more recently, the Fiddle Creek Bridge on the Shields River was illegally posted by a landowner, until PLWA representatives protested at a meeting with Park County commissioners. In that instance, the "local game warden was said to claim that he would ticket anyone attempting to access the river from the bridge area," according to PLWA President John Gibson. It's not the first time, nor will it be the last, that hometown judges and law enforcement side with neighbors in lieu of the law.
Similar cases have risen in Teton County, Stillwater County, Musselshell County, Golden Valley County, Lewis & Clark County, Yellowstone County, Fergus County, Deer Lodge County and many other places statewide. And most anglers are aware of the Mitchell Slough debacle (if not, read the April 29, 2009 article in the Missoula Independent titled "Muddy Waters"), and similar issues at "irrigation ditch/natural waterways" like Gallatin County's Darlinton Ditch.
Stream access via public-road bridges was clearly defined in a 2009 law "that confirmed that the public has access to surface waters by public bridge or county road right-of-way. (Montana Fish, Wildlife and Parks), in cooperation with the affected landowner and county, is responsible for providing public passage around or through a fence preventing such access. A typical access feature would be a stile, gate, roller, walkover, or wooden rail fence" (from the FWP web-page on stream access).
Signs like the one on the Fiddle Creek Bridge saying things like "positively no venturing off roadway," et cetera, hold no actual power. If there is a specific reason access is not allowed (such as at Seyler Lane), that reason should be posted (which it is at Seyler Lane). Anglers can and should exercise their rights at such places, keeping in mind that a confrontation is not out of the question.
As evidenced recently in Utah and Virginia, it's not impossible for stream access to be rescinded. Let us not be blindsided by the opposition, nor take for granted what we currently enjoy.
The tug-of-war continues at each legislative session...
Of particular relevance to hunters in 2013, a bill sought to make "corner crossing", or hopping across adjacent parcels of checkerboard public land, legal. House Bill 235 would have decriminalized the actions of those who use such corridors to access the hundreds of thousands of acres of public land currently inaccessible due to the law. The bill missed the deadline for general bill transmittal despite the support of hundreds of blaze-orange-clad supporters at the capitol building.
Corner crossing is illegal since there is technically no way to cross from corners and not trespass, at least over the vertical space over the private property (litigation against airlines soon pending, no doubt). It's an example of the minutia over which access battles occur, and that are often won by private interests.
As an alternative to HB 235, House Bill 440 was drafted, which would increase funds to the Block Management Program to theoretically increase participants and offset the loss of landlocked public land, but likely not to the tune of 800,000 acres, the amount that's often said to be landlocked.
Furthermore, it would have diverted funds from Habitat Montana, an FWP program that sets aside license fee money for conservation easement purchases. Conservation easements benefit landowners by giving tax breaks for setting aside portions of their property to never be developed or sub-divided (and some allow public access). The easements stay with the property for the duration regardless of sale/ownership, and provide needed habitat for fish and game. HB 440 was tabled in committee.
Similarly, House Bill 444 gives a tax credit for "... access established through a taxpayer's property to a parcel of (landlocked) state land for recreational use and certified by the Department of Fish, Wildlife, and Parks..." HB 444 passed successfully.
In response to deteriorating relations, FWP launched the Montana Hunter-Landowner Stewardship Project in 2010. The voluntary program "is an information program for anyone interested in promoting responsible hunter behavior and good hunter-landowner relations in Montana," by going over topics like obtaining permission, game retrieval, vehicle use and weeds. It is administered via the internet and has no time frame for completion. Successful participants receive a hat, bumper sticker and certificate, and more importantly, the satisfaction of having taken steps to learn and improve relations.
Many of the access-advocate organizations have all-volunteer staffs and affordable memberships. Supporting them helps to ensure Montana's fishing and hunting heritage into the future. Most of them also have Facebook pages that help spread the message.
PLWA has also set up the "Stream access defense fund" to defend Montana's fabled law against the big- money opposition. A note in the memo section of your check can indicate that you want your donation directed to the funds
Due diligence on the part of the participants of our beloved pastimes is and will always be required, and financial support of the non-profits whose lawyers try these cases to defend our rights doesn't hurt.
Anyone who's fished or hunted in Montana to a significant degree probably has a story or two of landowner run-ins. I generally have one or two per year while fishing, and it's never fun. But, as long as you make sure you're within the law, you have every right (arguably an obligation) to stand your ground. If the situation escalates, use your judgment. But don't be bullied by belligerent signage or ranch-hands.
All involved relationships are fickle and often volatile. Practicing respect and always abiding by the law are the least we hunters and anglers should be doing.
All told, Montana has over 35 million acres of public land, and innumerable miles of accessible stream bed. Don't take it for granted.
I cannot imagine a time when we don't have to fight for Montana's public land and stream access. Land and access that your tax dollars paid for, that law says we have a right to, and that facilitates the future of hunting and fishing in Montana. Most of us would agree that's worth fighting for.
Montana Sporting Journal