_________ Bill No. _______

Introduced By _______________________________________________________________________________

By Request of the Department of Transportation

A Bill for an Act entitled: "An Act including in the definition of "legal fence" a highway right-of-way fence built in conformance with department of transportation standards; and amending sections 60-2-201 and 81-4-101, MCA."


A statement of intent is required for this bill because the legislature delegates to the department of transportation the authority to develop standards for highway right-of-way fences. It is the intent of the legislature that the department of transportation's standards for highway right-of-way fences be adopted as administrative rules pursuant to the Montana Administrative Procedure Act. At a minimum, the standards for highway right-of-way fences adopted as administrative rules must address:

(1) types of materials from which highway right-of-way fences may be built;

(2) dimensions and construction practices that apply to highway right-of-way fences;

(3) rights-of-way to which the standards apply; and

(4) other matters, consistent with the purposes of [this act], that the department of transportation considers necessary.

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 60-2-201, MCA, is amended to read:

"60-2-201.   General powers of department. (1) The department may plan, lay out, alter, construct, reconstruct, improve, repair, and maintain highways on the federal-aid systems and state highways according to priorities established by and on projects selected and designated by the commission.

(2)  The department may cooperate and contract with counties and municipalities to provide assistance in performing these functions on other highways and streets.

(3)  The department may review and approve projects for the installation of public works on state highway rights-of-way and authorize a county or municipality to let contracts related to such the improvements.

(4)  The department shall adopt necessary rules:

(a) for the construction, repair, maintenance, and marking of state highways and bridges; and

(b) establishing standards for highway right-of-way fences."

Section 2.  Section 81-4-101, MCA, is amended to read:

"81-4-101.   Legal fences defined. Any one (1) Except as provided in subsection (2), any of the following, if not less than 44 inches or more than 48 inches in height, shall be is a legal fence in the state of Montana:

(1)(a)  all fences a fence constructed of at least three barbed, horizontal, well-stretched wires, the lowest of which must may not be less than 15 inches or more than 18 inches from the ground, securely fastened as nearly equidistant as possible to substantial posts firmly set in the ground or to well-supported leaning posts not exceeding 20 feet apart or 33 feet apart where when two or more stays or pickets are used equidistant between posts. All corral fences which that are used exclusively for the purposes of enclosing stacks which that are situated outside of any lawful enclosure shall may not be less than 16 feet from such the enclosed stack so enclosed and shall must be substantially built with posts not more than 8 feet distant from each other and with not less than five strands of well-stretched barbed wire and shall may not be less than 5 feet or more than 6 feet high. Any kind of a fence equally as effectual for the purpose of a corral fence may be made in lieu thereof as a legal fence.

(2)(b)  all fences a fence constructed of any standard woven wire not less than 28 inches in height, securely fastened to substantial posts not more than 30 feet apart, provided that two equidistant barbed wires shall be are placed above the same woven wire at a height of not less than 48 inches from the ground;

(3)(c)  all other fences any other fence made of barbed wire, which shall be is as strong and as well calculated to protect enclosures as those above a fence described in subsection (1)(a) or (1)(b);

(4)(d)  all fences a fence consisting of four boards, rails, or poles with standing or leaning posts not over 17 feet and 6 inches apart, provided that, if leaning posts are used, there shall be is a pole or wire fastened securely on the inside of the leg or support of such the leaning post; or

(5)(e)  all rivers, hedges, mountain ridges and bluffs, or other barriers over or through which it is impossible for stock to pass.

(2) A highway right-of-way fence built in conformance with standards established by the department of transportation is a legal fence."