House Bill 295 would stop the trend of landowners gating roads to public land, but supporters are worried it won’t get a fair shot at becoming law.
HB 295, sponsored by Rep. Tom Jacobson, D-Great Falls, would allow a county to consider a locked gate across a county road to be an encroachment on county property or easements. The county could fine the owner up to $500 a day until the gate is removed instead of the current $10 a day. Plus, if cars can’t get through, the road supervisor would have the authority to remove the gate immediately.
The law already allows counties to force the removal of fences or buildings that encroach on a road right-of-way. It doesn’t apply to private roads.
The need for such a law is growing. Montana has endured an increasing number of contentious lawsuits prompted by gates suddenly blocking public roads. The situation is often associated with someone from out-of-state who bought a ranch unaware that the public used a nearby road to access public land. Annoyed by passing vehicles, the new landowner installs a gate to keep people out, and a legal battle ensues when there’s a question of who owns the road.
Groups such as the Public Land and Water Association often sue such landowners when counties balk either because county coffers don’t have the funds to sue or because county commissioners are worried about being re-elected.
The PLWA has managed to prevail in some lawsuits, and roads have been reopened. But the gates stay locked during the lawsuits, which can string out for years.
Public land advocates support the bill and were dismayed to see it assigned to the House Judiciary Committee, which has the reputation of being the committee where the majority party sends bills to die.
The House Judiciary Committee has already canceled two hearings for HB 295, originally scheduled for last Tuesday and again for Thursday. Committee chair Rep. Alan Doane, R-Bloomfield, might have been waiting for the accompanying fiscal note, which was printed on Thursday. But the wait was worthless because the note shows the bill is neutral with no cost or benefit to the state.
Advocates expected the bill to get a hearing this Tuesday, but it’s not on the schedule.
Some think the bill should have been assigned to the Transportation Committee. That’s where a similar bill – HB 286 sponsored by Jacobson - went in 2015 after first being assigned to the Judiciary.
HB 286 went further than this year’s bill, prohibiting barriers across any road or throughway not documented as private. The bill had 11 proponents, mostly hunters and conservationists, and eight opponents including property rights groups and the Montana Association of Counties. It was tabled in committee.
This year, a related bill - HB 319 sponsored by Jeff Essman, R- Billings - will be heard in the Local Government committee, which is another place Jacobson’s bill could have been assigned. Essman is among the top of the GOP leadership and was the Senate Majority Leader in 2013 so his bills are likely to get good placement.
HB 319 provides a more laborious procedure for determining the status of roads where counties are uncertain. It allows people to petition to designate a road as public but it takes at least 10 property owners in the county to bring it forward. However, any member of the public can oppose the petition, and if the commissioners decide the rebuttal is adequate, the road won’t be public.
Public access is a big issue for many Montanans but bills that would enable that access must clear a high hurdle in the Legislature.