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fishalong 11-30-2010 02:28 PM

Barb wired fence running across Odell spring creek in Ennis Montana
 
is anyone familiar with this creek. I have been fishing it for the last 15 years and when I went there over the summer there was a new barb wired fence running across the water, the wires even run under the water so I couldn't duck them. I talked to the fish and game and they said that it was illegal to do that, because you can access the creek directly from the Madison River. The fish and game guy said he has told the man countless times and the guy just replies that he is paid by an out of towner to run the tourist ranch on the creek. Nothing happens


Long story short, what is a fisherman like myself suppose to do. Does anyone have any experience with dealing with anything like this? Fish and Game seems to be helpless to do anything. Is it legal for me to simply cut the wires down with cutters? Or is there an easier way to handle the situation.

I appreciate any suggestions.

dean_mt 11-30-2010 04:01 PM

Re: Barb wired fence running across Odell spring creek in Ennis Montana
 
Hey Fishalong. Well, this is a surprise to me as I never knew you could get into Odell from the Madison. I rememeber talking to a guy in a shop in Ennis a few years back about accessing it and he said it was "pay to play".

But it sounds like you're a regular there, you know the state's laws and if the FWP wardens know the situation, I doubt you could get into much legal trouble. I mean, if it is classified a body a water then we have the rigth to walk down it, correct? So, if you want to make a point and clip the fence, you will not be tresspassing but might be vandilizing.

I'd certianly want to know, hear it from the FWP warden's mouth, that you (and all of us) have legal access to the creek before doing anything controversial. Then I would go would from there. Get some other fishermen from the area that also know the creek and make a showing out of it. That's what some old timer did over here.

I don't know if you've heard or followed the story about the "Huey Lewis Slough" access fights on the Bitterrroot. It has been quite interesting. The short story is that Huey (and the other billionares on that stretch of the Root) tried to keep the local rubes out of the slough but ultimately lost. I used to hear stories about his ranch hand that would come racing out and ***** you out if he saw you fishing in it but if you know the law and know that you are in the right, well, it just comes down to how badly you want to make a point. And how far you want to take it. A couple years ago a group of guys that had been fishing there since they were kids went to together and crossed the fence and fished it to make a statement.

The case went to court and the judge ruled it a natural flowing stream and upheld the public's right to access it.

I think that it is an important issue today. A lot of states do not have the strong public access law that we do in Montana. We are lucky, Fishalong, and if you've been fishing there for 15 years and someone new just moved in and thinks they can keep you out because they don't like the color of you shoes, well, that aint right.

Good luck and keep us posted.

John

Biggie 11-30-2010 05:58 PM

Re: Barb wired fence running across Odell spring creek in Ennis Montana
 
Fishalong John,
You can not cut the fence but you have every right to get out of the stream to portage the fence safely. Here is the Montana Annotated Code Law that gives you the right. I would just put a copy of it in your vest and when the landowner comes out wanting a fight hand it too him and tell him that you are going to notify the department supervisor (Section 3(B)) and then the process will follow the letter of law the rest of the way through the process. I would especially mention (Section 3(F)) which will post signage on the Madison River encouraging people to walk to the new portage route that was established. I am sure he will back off and may even take down the wires that are in the water. Here is the code law that is on the books in regards to portage!

Montana Code Annotated 2009

Clickable Image


23-2-311. Right to portage -- establishment of portage route. (1) A member of the public making recreational use of surface waters may, above the ordinary high-water mark, portage around barriers in the least intrusive manner possible, avoiding damage to the landowner's land and violation of the landowner's rights.
(2) A landowner may create barriers across streams for purposes of land or water management or to establish land ownership as otherwise provided by law. If a landowner erects a structure that does not interfere with the public's use of the surface waters, the public may not go above the ordinary high-water mark to portage around the structure.
(3) (a) A portage route around or over a barrier may be established to avoid damage to the landowner's land and violation of the landowner's rights, as well as to provide a reasonable and safe route for the recreational user of the surface waters.
(b) A portage route may be established when either a landowner or a member of the recreating public submits a request to the supervisors that a route be established.
(c) Within 45 days of the receipt of a request, the supervisors shall, in consultation with the landowner and a representative of the department, examine and investigate the barrier and the adjoining land to determine a reasonable and safe portage route.
(d) Within 45 days of the examination of the site, the supervisors shall make a written finding of the most appropriate portage route.
(e) The cost of establishing the portage route around artificial barriers must be borne by the involved landowner, except for the construction of notification signs of the route, which is the responsibility of the department. The cost of establishing a portage route around artificial barriers not owned by the landowner on whose land the portage route will be placed must be borne by the department.
(f) Once the route is established, the department has the exclusive responsibility to maintain the portage route at reasonable times agreeable to the landowner. The department shall post notices on the stream of the existence of the portage route and the public's obligation to use it as the exclusive means around a barrier.
(g) If either the landowner or the recreationist disagrees with the route described in subsection (3)(e), the person may petition the district court to name a three-member arbitration panel. The panel must consist of an affected landowner, a member of an affected recreational group, and a member selected by the two other members of the arbitration panel. The arbitration panel may accept, reject, or modify the supervisors' finding under subsection (3)(d).
(h) The determination of the arbitration panel is binding upon the landowner and upon all parties that use the water for which the portage is provided. Costs of the arbitration panel, computed as for jurors' fees under 3-15-201, must be borne by the contesting party or parties. All other parties shall bear their own costs.
(i) The determination of the arbitration panel may be appealed within 30 days to the district court.
(j) Once a portage route is established, the public shall use the portage route as the exclusive means to portage around or over the barrier.
(4) This part does not address the issue of natural barriers or portage around the barriers, and this part does not make the portage lawful or unlawful.

History: En. Sec. 3, Ch. 556, L. 1985; amd. Sec. 361, Ch. 56, L. 2009.

Good luck on the water and stay warm for the next few months, plenty of time to whip up new bugs for the spring time fishing.

Biggie

dean_mt 11-30-2010 09:42 PM

Re: Barb wired fence running across Odell spring creek in Ennis Montana
 
Thanks, Biggie, that is great advice! I was not particularly advocating cutting fences (though I have wanted to at times). Our state law is strong and we should feel confident to act on it when necessary.

fyshstykr 11-30-2010 11:04 PM

Re: Barb wired fence running across Odell spring creek in Ennis Montana
 
I bet it gets removed if somebody enters through the Maddy and gets hung up in that barbed wire. :upset:

fishalong 12-01-2010 11:23 AM

Re: Barb wired fence running across Odell spring creek in Ennis Montana
 
Thanks Biggie! I live by the high water mark rule, but had no idea that fishermen are allowed to portage around barriers, that makes me feel a lot more comfortable when I'm venturing down the Gallatin. I also didn't know it was legal to put a barb wire fence over a river, I guess it could be considered a 'barrier' to show property lines.

Dean, I have heard a little bit about the Bitterroot debacle, I went to college in Missoula so I hit up that river a ton. I love the area just past Hamilton, there are a couple secret access points that I found by asking a local newspaper journalist how he gets to the river.

fysh' it's actually quite hard to float down Odell. you can do it by accessing it from the bridge just past Ennis but it gets tight in spots. It can be very deep at times also. I usually just wear a suit and tshirt and swim around the spots that I can't walk under the high water mark. It's basically the only way to fish that creek legally. But I imagine your right, if someone took a tube down that thing and got snagged up in a barb wire fence it would suck.

dean_mt 12-01-2010 01:37 PM

Re: Barb wired fence running across Odell spring creek in Ennis Montana
 
The Bitterroot still gives up some of the nicest fish in the area, but man does it get hammered. I don't get down to the Madison much anymore so I don't know how it compares but it isn't uncommon to find full parking lots at every access from Florence clear down to Darby on summer day. Wouldn't mind knowing a "secret" or two down that way!

Good luck on the Odell thing. Like most average Montana outdoors people, I just hate that kind of stuff. It you were to carry a copy of the regs, like Biggie reccomends, and inform the owner or ranch hand that you were gonna keep fishin while you waited for FWP I'm pretty sure they would back off.

The "Huey Lewis" aka Mitchell Slough is just upstream from Stevi, but I've never fished it. I really should, it's just one of those times you'd have to go fishin with the expectation of confrontation, and that just isn't why I fish. One time a rancher down on Rock Ck told a friend and me that he had closed the section that ran through his property for the winter, "to let the fish rest". And he wasn't too nice about it either. They see the "4" plates and think...Missoula punks...

Good luck, guys. I've heard you got a lot nice powder over there!

fyshstykr 12-01-2010 05:53 PM

Re: Barb wired fence running across Odell spring creek in Ennis Montana
 
Not trying to veer away from the topic at hand here, but I have to ask....."What is a 4" plate?"
Sorry to be so naive. :confused:

Jimmie 12-01-2010 07:00 PM

Re: Barb wired fence running across Odell spring creek in Ennis Montana
 
Same here fysh. Dad gummit, I can't get the image of a real small pizza out of my head:D:D:D

fyshstykr 12-01-2010 09:29 PM

Re: Barb wired fence running across Odell spring creek in Ennis Montana
 
This might be what he meant Jimmie. We Make Number Plates 4 All Vehicles - The Number 1 Plate Maker - 10% OFF Nov & Dec 2010 4plates


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