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Montana Code Annotated
:
Annotations
2002
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Parks, Recreation, Sports, & Gambling « Civil Procedure
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ANNOTATIONS
to the
MONTANA CODE ANNOTATED
Code Commissioner & Director of Legal Services
Gregory J. Petesch
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Bart Campbell 71
Lee Heiman LIBR ARS
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John MacMaster ~ MAR 0 9 ZUUZ
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2002 ANNOTATIONS to the MONTANA CODE ANNOTATED
CONTENTS
Volume 1
Table of Session Law to Code — 2001 37. Professions and Occupations
Official Report of the Montana Code 38. Reserved
Commissioner — 2001
Enabling Act Volume 8
Constitution of Montana Titles
Title 39. Labor
1. General Laws and Definitions 40. Family Law
41. Minors
Volume 2 42. Adoption
Titles 43. Reserved
2. Government Structure and Administration
3. Judiciary, Courts Volume 9
4. Reserved Titles
5. Legislative Branch 44. Law Enforcement
6. Reserved 45. Crimes
7. Local Government 46. Criminal Procedure
8 and 9. Reserved 47 and 48. Reserved
10. Military Affairs and Disaster and
Emergency Services Volume 10
11 and 12. Reserved Titles
13. Elections 49. Human Rights
14. Reserved 50. Health and Safety
51. Reserved
Volume 3 52. Family Services
Titles 53. Social Services and Institutions
15. Taxation 54-59. Reserved
16. Alcohol and Tobacco 60. Highways and Transportation
17. State Finance 61. Motor Vehicles
18. Public Contracts 62-66. Reserved
19. Public Retirement Systems 67. Aeronautics
20. Education 68. Reserved
21. Reserved 69. Public Utilities and Carriers
22. Libraries, Arts, and Antiquities
Volume 11
Volume 4 Titles
Titles 70. Property
23. Parks, Recreation, Sports, and Gambling 71. Mortgages, Pledges, and Liens
24. Reserved 72. Estates, Trusts, and Fiduciary Relationships
25. Civil Procedure 73 and 74. Reserved
75. Environmental Protection
Volume 5
Titles Volume 12
26. Evidence Titles
27. Civil Liability, Remedies, and Limitations 76. Land Resources and Use
77. State Lands
Volume 6 78 and 79. Reserved
Titles 80. Agriculture
28. Contracts and Other Obligations 81. Livestock
29. Reserved 82. Minerals, Oil, and Gas
30. Trade and Commerce 83 and 84. Reserved
85. Water Use
Volume 7 86. Reserved
Titles 87. Fish and Wildlife
31. Credit Transactions and Relationships 88 and 89. Reserved
32. Financial Institutions 90. Planning, Research, and Development
33. Insurance and Insurance Companies 91-99. Reserved
34. Reserved
35. Corporations, Partnerships, and Associations
36. Reserved
STATE LEWL IBR
MAR 0 9 2002
OF MONTANA
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PREFACE TO VOLUME 4
(Annotations — February 2002)
Annotations to this volume include case notes of applicable court decisions through public
domain citation 2001 MT 188, volume 306 Montana Reports page 243, volume 33 Pacific Reporter
(3rd Series) page 183, volume 165 Federal Supplement (2nd Series) page 638, volume 268 Federal
Reporter (3rd Series) page 1069, and volume 121B Supreme Court Reporter page 2517. Digests of
Montana Attorney General’s opinions are provided through volume 49 opinion number 12 of the
Report and Official Opinions of Attorney General. Citations to the Administrative Rules of
Montana implementing or authorized by a section of law and adopted through Issue 21 of the 2001
Montana Administrative Register are also included.
Amendment notes listed under compiler’s comments are intended to explain only amendments
made in the year indicated and may not accurately reflect current statutory language because of
subsequent amendment.
The annotations are provided as a convenience to the user and are not intended to be an
exhaustive compilation of the law under a given statute or in a given area.
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TITLE 23
PARKS, RECREATION,
SPORTS, AND GAMBLING
CHAPTER 1
PARKS
Chapter Administrative Rules
Title 12, chapter 8, ARM State park system — public use regulations.
Chapter Law Review Articles
MEIC v. DEQ: An Inadequate Effort to Address the Meaning of Montana’s Constitutional
Environmental Provisions, Horwich, 62 Mont. L. Rev. 269 (2001).
Protecting and Preserving Our National Parks in the Twenty First Century: Are Additional
Reforms Needed Above and Beyond the Requirements of the 1998 National Parks Omnibus
Management Act?, Ansson & Hooks, 62 Mont. L. Rev. 213 (2001).
Interface Between the Recreation and Land Use Act and the Sovereign Immunity
Act—Blanket Immunity for the Commonwealth in State Park Actions?, Nussbaum, 70 Pa. B.A.Q
112 (1999).
Judge Applies Disabilities Act to Wild Forest: Access for Handicapped Ordered for State Park,
Spencer, 220 N.Y.L.J. 1 (1998).
Tort Immunity Act: Park Restroom, Postel, 1386 Chi. Daily L. Bull. 1 (1990).
Chapter Collateral References
State’s liability for personal injuries from criminal attack in state park. 59 ALR 4th 1236.
Part 1
State Parks
23-1-101. Purpose.
Collateral References
States key 45.
81A C.J.S. States §138.
23-1-102. Powers and duties of department of fish, wildlife, and parks.
Compiler’s Comments
2001 Amendment: Chapter 125 in (1) inserted last sentence relating to acquisition by
condemnation; and made minor changes in style. Amendment effective October 1, 2001.
Interim Study Bill — Eminent Domain: Chapter 125, L. 2001, was enacted as a result of an
interim study. See Eminent Domain in Montana, published by the Legislative Environmental
Policy Office, May 2001.
1991 Amendment: Substituted references to Department of Transportation for references to
Department of Highways. Amendment effective July 1, 1991.
1981 Amendments: Chapter 230 inserted “for the purposes outlined in 87-1-209(2)” following
“condemnation” near the beginning of the section.
Chapter 418 inserted “, for any of the purposes of this part,” after “A contract” and “and, if the
contract or obligation pertains to acquisition of areas or sites in excess of either 100 acres or
$100,000 in value, until the board of land commissioners has specifically approved such
acquisition” near the middle of the section.
Administrative Rules
ARM 12.5.401 Oil and gas leasing policy for department — controlled lands.
ARM 12.6.902 Castle Rock Reservoir regulations.
ARM 12.6.903 Helena Valley Equalizing Reservoir regulations.
Title 12, chapter 8, ARM State park system — public use regulations.
23-1-103 PARKS, RECREATION, 2
SPORTS, AND GAMBLING
Case Notes
Nature of Easement — When Deprivation of Property Occurs: A landowner brought an action to
prevent the state from opening a fishing access site and from paving a road to the site, based on a
claimed fee title to the roadway. The District Court granted the state a summary judgment as a
matter of law. The Supreme Court found the landowner’s interest was an ordinary easement. The
words “private road” did not clearly indicate intent to create in him an “exclusive” easement. The
state’s use of the road cannot be declared inconsistent with the landowner’s on the basis of
speculation. Furthermore, under various statutory provisions, the state obtained its land lawfully.
The plaintiff had not yet been deprived of his property interest. Any damages remained
speculative at the time of the decision. The summary judgment was accordingly affirmed. Titeca v.
St., 194 M 209, 634 P2d 1156, 38 St. Rep. 1533 (1981).
Bailments: When state, as bailee of road roller given it by federal government, was in lawful
possession, it was lawfully entitled to that possession as against anyone with no better right. It
could vindicate that possession accordingly and to that end maintain an action in claim and
delivery when there was an unauthorized sale to third person by State Park Commission (now
Department of Fish, Wildlife, and Parks) employee purporting to act for state. State ex rel. Olsen
v. Sundling, 128 M 596, 281 P2d 499 (1955).
Collateral References
States key 67, 73.
81A C.J.S. States §138.
23-1-103. Acceptance of title to recreational and camping grounds by board of land
commissioners.
Collateral References
States key 85.
59 Am. Jur. 2d Parks, Squares, and Playgrounds §84, 5.
23-1-104. Connecting roads.
Compiler’s Comments
1991 Amendment: Substituted references to Department of Transportation for references to
Department of Highways. Amendment effective July 1, 1991.
Collateral References
Highways key 99, 105(1).
23-1-105. Fees and charges.
Compiler’s Comments
2001 Amendment: Chapter 126 in middle of second sentence in (1) after “department” inserted
exception clause; inserted (5) establishing an enterprise fund to manage state park visitor services
revenue; and made minor changes in style. Amendment effective March 26, 2001.
1991 Amendments: Chapter 339 inserted (4) excepting money collected from fees and charges
from requirements of 17-6-105; and made minor change in style. Amendment effective April 4,
1991.
Chapter 662 inserted (3) relating to responsibility of registered owner of a vehicle for fees; and
made minor change in style. Amendment effective April 26, 1991.
1989 Amendment: At end of first sentence substituted “subsection (2)” for “subsections (2)
and (3)”; deleted former (2) that read: “(2) Any Montana resident as defined in 87-2-102 who is 62
years of age or older may purchase a “Montana state golden years pass” for $1 which, when
attached to his or her vehicle, allows the passengers of that vehicle to camp free in Montana state
parks, recreation areas, and fishing access sites. This pass is valid for the lifetime of the
individual”; in (2), at beginning before “fees”, inserted “overnight camping”, substituted “must be
discounted 50% for a campsite rented by a person” for “are waived for a person”, and after
“resident of Montana” substituted “as defined in 87-2-102 and either 62 years of age or older or”
for “not residing in an institution and who is”; and made minor changes in phraseology.
Amendment effective March 29, 1989.
1985 Amendment: In (2) reduced age requirement from 65 to 62; in (3) before “person”, deleted
“totally disabled” and after “person”, added remainder of sentence waiving fees for certified
disabled Montana resident not residing in an institution; and deleted last sentence of former (3)(a)
and all of (3)(b) that read: “A person claiming waiver under this subsection shall provide to the
department proof that he is totally disabled, as certified by a licensed Montana physician.
