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Stream access measure hits snag

Stream access measure hits snag

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HELENA - Six years of legal and legislative efforts to define how the public can walk from public bridges to public waters for floating or fishing snagged here Tuesday on something most Montanans have never heard of: prescriptive road easements.

At issue was House Bill 190, sponsored by Rep. Kendall Van Dyk, D-Billings. The bill was the subject of a two-hour hearing before the House Fish, Wildlife and Parks Committee, which Van Dyk heads.

Supporters of the bill, which included Attorney General Steve Bullock, Sen. Jim Shockley, R-Victor, representatives from the Montana Farm Bureau Federation, Montana Trout Unlimited and a host of other groups, urged the committee to pass the bill. Many, like Rep. Wayne Stahl, R-Saco, praised the groups who worked for 16 months on the measure, even if it wasn't exactly perfect.

"Everyone had to give a little to get a very good bill," he said. "I'm here today on a bill that I really, really like."

The measure attempts to put to rest a controversy brewing since 2000 when Madison County landowners, namely James Cox Kennedy, a billionaire absentee landowner, built fences to county bridges that anglers said were clearly designed to keep people off public waters.

The case is also the subject of a five-year-old Madison County lawsuit.

The Montana Stockgrowers Association, a prominent ranching group, had been involved in crafting the bill for months.

But on Tuesday, stockgrowers lobbyist John Bloomquist, a Helena water lawyer, opposed the bill. Bloomquist said that while the bill was a good start, it missed the mark on prescriptive road easements.

Such easements arise when the public has been using a roadway for many years. After a while, the county acquires a right-of-way to the road, even if the county never paid for it.

Bloomquist told the committee that prescriptive easements aren't like other kinds of easements. While most county roads include a 60-foot right-of-way, the right-of-way for a prescriptive easement ends at the roadway, he said.

That's important because it's precisely such a wide right-of-way that allows the public to legally walk from a bridge to the high water mark of a river or stream without trespassing on private property.

Van Dyk's bill does not mention prescriptive easements - Van Dyk said a stockgrowers representative specifically asked him to remove any reference to the easements.

However, on Tuesday, Bloomquist argued that the bill must be changed to specifically omit prescriptive easements from bridge access. He said there is, in fact, not access on such easements.

But that's not true, said Bob Lane, the head lawyer for the Department of Fish, Wildlife and Parks. Lane said Bloomquist's characterization of prescriptive easements is not correct.

He told the committee that the right-of-way for prescriptive easements does not end at the roadway's edge. He said that most such easements are old and are granted for "all highway purposes," including maintenance, power lines and other duties that would obviously require a right-of-way wider than the road. Highway purposes also include recreational access.

At the very least, he said, any county bridge over any stream wide enough to sustain a fishery would almost certainly be a well-established, wider right-of-way.

Lane said that there may be a handful of very small, narrow country roads acquired through prescriptive easement that do not include a wider right-of-way. But Bloomquist's amendments would throw out access at every single prescriptive easement bridge to spare confusion over just a few exceptions.

Prescriptive easements are also at the heart of what is left of the Kennedy lawsuit in Madison County. Madison County District Judge Loren Tucker last October ruled against Kennedy on most issues in the case.

One element still pending is a piece dealing with prescriptive easements.

The committee did not make any decision on the bill, but could do so as early as Thursday.

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