The future of a bill seeking to change laws around prescriptive easements is unclear after the Montana Senate voted down a free conference committee report Thursday.
Senate Bill 354 is brought by Sen. Steve Hinebauch, R-Wibaux. He told the Senate on Thursday the bill came out of his interest in easements, how they work with public and private lands, and his need to put some sideboards on them.
Under Montana law, a prescriptive easement allowing access across private property is established by "open, exclusive, notorious, hostile, adverse, continuous and uninterrupted use" for a period of five years. Experts estimate thousands of written and unwritten prescriptive easements exist in the state, with a wide variety of purposes including access to livestock on neighboring private property or public recreation access.
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When the bill first passed the Senate, picking up some bipartisan support, Hinebauch said the legislation aimed to ensure prescriptive easements allowed for one purpose did not lead to unfettered access for other purposes.
HB 354 has seen two major amendments since it passed the Senate last month. The first came in the House, but after the Senate voted unanimously against concurring with that amendment, the bill went to a bicameral free conference committee. There, four Republicans and two Democrats took up the bill again, with Republicans voting over Democrats to amend the bill a second time. That vote advanced a committee report, meaning the chambers again took up the bill.
As amended in the committee report, the bill adds definitions of a prescriptive easement and a public access prescriptive easement into law. It further retains language that restricts government or private entities from expanding prescriptive easement access beyond its original usage. It states that if a government agency posts signage for more than five years indicating land beyond the sign is private property, a prescriptive easement may not be asserted.
The bill also seeks to discourage nonprofit groups from pursuing prescriptive easements through litigation. The first provision states that eminent domain is preferred rather than “confiscation of private property rights in the name of the public by surrogates and nonprofits.” It further states that attorney fees cannot be granted for successfully litigating a prescriptive easement.
Sen. Edie McClafferty, D-Butte, spoke against SB 354, saying she believed the major amendment during the conference committee rushed the vetting process and that she had concerns about harming public access.
“Our sporting groups, our private property owners have concerns about this bill. They have a lot of concerns about this bill,” she said.
Hinebauch said he believed the committee-amended bill was a good one and encouraged the Senate to pass it.
The Senate voted 22-28 against adopting the committee report, with nine Republicans joining all 19 Democrats in opposition.
The future of the bill remained unclear shortly after the vote. The bill could go back to conference committee, but GOP staff said it was uncertain if that would be the case.
The House is scheduled to take up the same committee report Friday.