Bucky Ryan

February 26, 2009

In a continuing line of contentious legislative and judicial proceedings regarding public water rights in Montana, the state Senate will review and decide on a controversial stream access bill in the upcoming weeks. Commonly dubbed the "Stream Access Bill of 2009," SB 314 (formerly HB 190) is the latest chapter on a controversial topic that pits recreation against business, stockgrowers against sportsmen, and resident Montanans against out-of-state landowners. The Legislature saw extensive testimony in January on this bill, permutations of which have found their way into each legislative session dating back to the 1985 enaction of a landmark law that extended public access rights for recreational use to the bed and banks of all the state's navigable waterways.

Sponsoring Representative Ken Van Dyk of Billings testified on behalf of the bill before the House Fish, Wildlife, and Parks Committee, touting the bill as the strongest of its kind to go before the legislature in recent years. Van Dyk co-opted the bill's drafting among various environmental, outdoor enthusiast, landowner, and livestock groups alongside the state committee in order to maximize support. Though the process began as a collaborative effort intended to keep the bill simple and straightforward, certain changes have been made in the 16-month drafting and review process, leading some to criticize the bill as "watered down" or even contravening the original intentions of some of the drafters. Concerns range from safety and landowner liability to enforceability of designated easements and characterizations of "natural water body," the latter of which have received hotly contested attention of late despite the lack of any appurtenant provisions in the proposed bill's text.

Helena water attorney John Bloomquist led the charge in decrying the absence of a provision addressing prescriptive easements, which would ostensibly allow the public to access the high water mark of any stream legally by entering at bridge crossings of state roads. Bloomquist is a lobbyist for the Montana Stockgrowers Association, the very group whose representative, according to Van Dyk, specifically requested the removal of any reference to such easements in the bill. Unstymied by this primary attempt to snag the legislation, House members voted 95-5 in favor of the bill, which has been renamed SB 314 and is being reworked for final hearing before the state Senate.

Some have suggested the bill's success or failure will not only dictate the future of stream access in Montana, but also serve as a harbinger for other western states like Utah, which is also currently seeking to legislatively resolve stream access controversies. The pending bills before Montana and Utah's state committees (SB 314 and HB 187 respectively) have important ramifications for the continued public use of the states' waterways by the resident and nonresident public.

This piece serves as an update to a companion entry posted September 17, 2008, available at http://www.vjel.org/news/NEWS100141.html.

Sources:

Daniel Person, Bridge access bill passes first hurdle, The Bozeman Daily Chronicle Jan. 21, 2009, available at http://www.bozemandailychronicle.com/articles/2009/01/21/news/ 30bridge%20access.txt (last accessed Feb. 25, 2009).

House Bill No. 190, 2009 Montana State Legislature, Introduced by K. Van Dyk, P. Beck, Cohenour, Essmann, Gallus, Jent, Maclaren, O'Hara, Pomnichowski, Shockley, Stahl, Steenson, Brueggeman, Blewett, Caferro, Furey, Gillan, available at http://data.opi.mt.gov/bills/2009/billhtml/HB0190.htm (last accessed Feb. 25, 2009).

Jennifer McKee, Bridge-access bill gets major support in House, Helena Independent Record, Jan. 27, 2009, available at http://www.helenair.com/articles/2009/01/27/top/60st _090127_bridge.txt (last accessed Feb. 25, 2009).

Jennifer McKee, Stream access bill snags on specifics, Helena Independent Record, Jan. 14, 2009 available at http://www.helenair.com/articles/2009/01/14/legi/top/48st_090113 _bridgeaccess.txt (last accessed Feb. 24, 2009).

Perry Backus, Laible's stream access bill draws heat, Ravalli Republic, Feb. 13, 2009, available at http://www.ravallirepublic.com/articles/2009/02/13/news/news69.txt (last accessed Feb. 24, 2009).

Perry Backus, Senator Laible reworking stream access measure, Ravalli Republic, Feb. 13, 2009, available at http://www.missoulian.com/articles/2009/02/13/news/mtregional/news10.txt (last accessed Feb. 24, 2009).

Tom Wharton, Anglers rally to fight stream access bill, The Salt Lake Tribune, February 19, 2009, available at http://www.sltrib.com/ci_11744385 (last accessed Feb. 24, 2009).