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Old 11-30-2010, 05:58 PM
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Default 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

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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.

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