New fence across Dearborn River sparks outcry; FWP works with landowner on fix

The river that spawned the legal battles to create Montana's robust stream access law was back in the spotlight this month, but this time around, it got resolved fairly quickly.

A recently constructed fence across the Dearborn, a popular river on Montana's scenic Rocky Mountain Front, raised some hackles and got people hot on social media before the situation was quickly remedied by the landowner and state officials.

All in all, it was a lesson both in the tension around Montana's famous Stream Access Law, the power of social media to inflame that tension and the way that cooperation and open discussion can still resolve problems quickly.

Sometime this winter, someone who leases land for cattle grazing from the large Mosher family ranch southwest of Augusta constructed a fence across the Dearborn underneath the High Bridge, where the river goes underneath Highway 435.

Built to keep cattle from escaping through the river when it gets shallow, the fence initially did not include an opening in the main water channel or a portage option.

Montana's Stream Access Law states that "the public may use rivers and streams for recreational purposes up to the ordinary high-water mark."

"Although the law gives recreationists the right to use rivers and streams for water-related recreation, it does not allow them to enter posted lands bordering those streams or to cross private lands to gain access to streams," says the state's website on the law.

There is also a specific provision for waters that go under a public bridge.

"House Bill 190, passed during the 2009 Legislative Session, confirmed that the public has access to surface waters by public bridge or county road right-of-way," says the state website. "The Fish, Wildlife and Parks Department, 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."

A couple area residents posted pictures of the fence on Facebook and Instagram, both noting that there was no portage option. One of the people, a local fishing outfitter, also told people to make sure they let FWP know how they feel about the situation.

The posts were shared by dozens of people, and got many dozens more comments.

The Dearborn, a tributary of the Missouri, is a popular floating and fishing river.

All the social media chatter, and subsequent calls to FWP, got the attention of the department.

"Once they were made aware of the issue, the landowners were quick to respond," explained Greg Lemon, a spokesperson for FWP. "With the help of an FWP warden, they created a suitable portage for the fence. We’re grateful for their quick response to remedy the circumstance."

Some of the people who posted the original photos of the fence took follow-up photos showing steps over a portion of the fence. They noted that they appreciated the quick fix.

The Dearborn River actually has quite a bit of history of sparking stream access arguments in Montana.

Graham Coppes, a water-rights attorney living in Missoula, said it was a dispute on the Dearborn in the early 1980s, between an oil magnate and a group of rafters, that led to the creation of Montana's Stream Access Law.

The case, the Montana Coalition for Stream Access v. Curran, went all the way to the Montana Supreme Court in 1984. Eventually, the Montana Legislature created the Stream Access Law in 1985.

Coppes was not familiar with the recent incident on the Dearborn, but he said it's important for people to be aware of the law and speak up when they see something that doesn't comply.

"The big picture is we have a very strong right to stream access in Montana," he said. "You gotta respect it. You can't trespass across private property. But you do have to remain vigilant."