When Enough Is Enough: HB309…

March 7, 2011

When Enough Is Enough: HB309…

This BLOG never has been and never will be a podium or pulpit to spew political rants and raves, but when my livelihood and lifestyle is threatened, I feel it necessary to call a spade a spade.

House Bill 309 that is currently up for hearing in the Montana Senate is a clear example of what is at best a misguided bill seeking to clarify an issue that needs no clarification - \"what is a ditch?\" and at the worst, an attempt to end around the 25+ year old Stream Access Law that was put forth by men like my father and Mazurek and many other like minded outdoorsmen and was agreed upon by such varying interests as TU, Montana Fish Wildlife and Parks and the Stockgrowers Association and Farm Bureau. These same groups are now at odds with one another over the current piece of garbage that has been put forth in HB309, clearly something is afoul here...

House Bill 309 whether intended or not will erode Montana's Stream Access Law and will have far reaching and long lasting negative implications for not only Stream Access but Montana's Tourism Industry and Small Businesses sector.

And with that I'm off of my soap box - except to leave you with some ammunition that you might want to bring to the attention of our Governor of Montana and any of your own local representatives... following an open letter to our Governor and Elected Officials of MT:

I write you as a businessman and outdoorsman with grave concerns about House Bill 309 to “Clarify prohibition on recreational access to ditches.” Although the original intentions of this bill may have been benign, the unintended consequences are clear and that is the slippery legal slope that this legislation will introduce, and negative impacts that it will have for Montana’s Stream Access Law and the state’s Tourism Industry. The language and legalese within HB309 fails to provide any clarity on what constitutes a ditch and rather introduces a broad definition of recreational use of waterways that is open for legal interpretation. I’d like for you to be aware of the consequences this will have on a large number of small businesses.

I would like to make you aware that HB309 potentially will have devastating effects on my own business, a fly shop in Bozeman, Montana, as well as many of the service and support businesses across the state were it to be enacted. As the manager of a small business that has been thriving throughout this downturned economy, I’m very concerned with how this will impact tourism and the perspective that travelers will have of our state if this legislation is allowed to go into effect. The fact of the matter is that many people come to Montana during the summers to recreate on our rivers and streams, and they help support local businesses from restaurants, to motels, to bars and boutique stores etc. By shutting down recreational access by passing HB309, we will see a decrease in the number of visitors, the length of their stay and the frequency of their visits. During a time when budget shortfalls are predicted and taxes are needed, why pass a bill that has the potential to do harm to Montanan’s and small businesses?

From our viewpoint as a small business involved in outdoor recreation and retail, this bill is already affecting customer perception of our stream access laws and I’ve received complaints from various out of state and in state customers who are worried that they won’t be able to recreate on our rivers and streams in the same way that they have before. For the media and the general public perception is reality and if you shut down the access on some rivers, the national media will run with it and all that will be heard is “Montana’s Streams and Rivers are shut down to recreation.” Furthermore it could lead on down the line to lots of unnecessary, cumbersome and quite frankly anti-small business litigation from private landowners that would impact a wide variety of businesses locally and statewide specifically in our state’s Tourism industry.

I take specific issue with Section 2. Section 23-2-302, MCA, that is amended to read in below sections:

(c) except for impoundments or water diverted from a natural water body where the owner has provided public access, the recreational use of water diverted from a natural water body, including:
(i) the diverted water from the point of diversion to the point where the waters return to the natural water body from which the waters were diverted;
This opens up for interpretation the legality of floating large side channels of major waterways on rivers such as the Big Hole Jefferson and Yellowstone Rivers – this is the lifeblood of our business.

(ii) water bodies created at least in part by waters diverted from a natural water body where the diverted water is the principal source of water in the water body; or
This opens up for interpretation the legality of fishing entire rivers such as the Beaverhead, or the Ruby, or the Bitteroot, and also calls into question what happens in a drought year when irrigation removes the majority of a waterway such as on the Big Hole or Jefferson. Then is the entire river system declared illegal to recreate on?

(iii) water diverted to access points of ditches and other conveyances for the principal purpose of facilitating irrigation; or
(g)(d) use of a streambed as a right-of-way for any purpose when water is not flowing therein in the streambed.
This calls into question in drought years what might normally have water flowing through it is thus illegal to recreate on because of the lack of water due to seasonal drought conditions? What then becomes the legal precedence in the future were that streambed to have water flow through it again in a normal water year?

4) The right of the public to make recreational use of surface waters does not grant any easement or right to the public to enter onto or cross private property in order to use such those waters for recreational purposes.
This would allow private landholders to erect fences, dam structures, and other manmade obstructions in the public waterways to prevent passage of the public through these waterways rendering them unusable for recreation and clearly violates the Stream Access Law that allows for departure from the high water mark to pass around man made obstructions and return with immediacy to the high water mark area. This is extremely problematic for small bodies of water like the Ruby and Beaverhead rivers that pass through contentious privately held surrounding lands.

Representative Welborn’s bill is a classic example of a solution in search of a problem. It will lead to more litigation, less clarity, and will hurt Montana’s Tourism Industry and Small Businesses.

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