Opinion: Fencing Along Road Ways Should Be Law

By Jay Harris
CrowNews.Net

Few things are more tragic than the unnecessary loss of life, especially when involving young people and most especially when involving accidents that otherwise could and should have been prevented. 

In recent months, two young individuals lost their lives in vehicle-livestock collisions. Both Nick Demontiney and Courtney Hugs left this world much too soon and there are many others who have also died or suffered serious injuries as a result of vehicle-livestock collisions on the Crow Reservation in the past several years.

It is long overdue time to finally correct this ridiculous problem once and for all.

I understand there may be jurisdictional issues concerning the tribe’s ability to regulate highway travel on the reservation. However, where a public right-of-way exists on a heavily-traveled roadway, tribal lawmakers, the Bureau of Indian Affairs, and the state of Montana should all take joint responsibility in enforcing adequate safety standards.

I believe such standards should give drivers confidence that livestock will not be on the road, especially at night. Of the many ways to address this problem, I think it best in the short-term to provide for civil or criminal liability imposed upon livestock owners found to be negligent in maintaining fencing adjacent to a roadway or who knowingly allow their animals to stray onto the roadway.

Ask anybody who travels the Saint Xavier to Lodge Grass BIA highway about the need for enforceable regulations or liability-creating legal duties upon livestock owners. 

Ask the same question of anybody who travels between Pryor and Saint Xavier, between Wyola and Lodge Grass or between Lodge Grass and Crow Agency.

This is a reservation-wide problem and it is a problem that has probably affected every tribal member in some way and has the potential to harm or affect anyone at any time.

Ultimately, I hope that Congress requires public fencing along all U.S. right of ways and that the Montana legislature does the same for state right of ways so as to preclude the need for regulation and litigation to protect life, limb and property.

Both will happen if made a priority and this issue will be made a priority with enough citizens, such as myself, voicing their concern.

This fall's tragedies have simply reinforced the fact that landowners and livestock operators cannot be depended upon to ensure safe roadways.

Editor's note: Jay Harris, Big Lodge Clan, is a law student at the University of Colorado and originally from Lodge Grass. In 2006, he founded the Apsaalooke Citizens Leadership Network. Click here to read content in the Billings Gazette that touches on the topic of Harris' article.

Comments

[Jay Harris]

In 2003, the National Center for Health Statistics reported that the leading cause of death for Americans between the age of 4 and 34 was motor vehicle accidents. The leading cause of death for American men age 44 and younger is motor vehicle accidents. And the National Highway Traffic Safety Administration reports an average of 40,000 Americans die in motor vehicle accidents every year -- that's about 110 each day.

In Montana, there are about 250 motor-vehicle accident deaths each year. Not a large share of the 40,000 annually but consider that nearly 27 people out of 100,000 Montanans will die in a motor vehicle accident. That is almost double the national average. Just this year, a University of North Carolina-Charlotte study named Montana as the state with the deadliest highways, according to research showing the Big Sky state with a big 2.3 fatalities per 1 million vehicle miles traveled. Importantly, all of these statistics are fatalities only and don't include other serious bodily injuries and vehicle damage. At any rate, the Montana Department of Transportation believes that is an incorrect designation considering the large amount of high-speed rural driving at distance and often far from emergency responders.

But a person doesn't have to drive far or fast to be in mortal danger due to livestock on the highway on the Crow Reservation.

Under English common law, it was the owner of the stray livestock who was responsible for any damage caused as a result of the animal being stray and the owner was liable under the "res ipsa loquitor" standard, that is, the accident creates fault without any requisite intent by the stock owner. Many American states have taken a different approach and generally require stock owner negligence, which holds the stock owner to a reasonableness standard. That means if an collision occurs due to unreasonable acts or omissions by a stock owner, there is liability. Montana has taken an approach which protects livestock operators and only allows for liability under statute and only if "gross negligence" or "intentional misconduct" on the part of the livestock owner can be proved. So as to adhere to common sense and in order to receive federal highway funding, Montana does disallow livestock on interstate highways, federal-aid highways, and fenced state right-of-ways.

As for the Crow Tribe, in 1991 the Tribal Council passed a Resolution that called for
the Tribe to take "immediate action" to address to problem of livestock on roadways. Here is the preamble to the Resolution:

WHEREAS, the Crow reservation community has suffered the loss of the lives of two young Crow people within the past nine months, and

WHEREAS, there have been numerous traffic accidents over the past several years which have resulted in serious injuries and death of vehicle drivers and passengers, and

WHEREAS, there has been and continues to be, a large number of animals either killed or injured as a result of these accidents occurring through incident involving loose or straying livestock, encountering vehicles upon highway right-of-ways, and

WHEREAS, there has been thousands of dollars in property damage resulting from stray or loose animals which have been encountered by vehicles upon highway right-of-ways, and

WHEREAS, all governments must bring change to provide for modern transportation and safer conditions for inhabitants, both human and animal, residing under jurisdictional protection of said governments, and

WHEREAS, the Crow Tribe must take immediate action to alleviate the continuing suffering of both animals and humans stemming from encounters between straying livestock and vehicles upon highway right-of-ways,

THEREFORE BE IT RESOLVED, that the Crow Tribal Council hereby amends the Crow Law and Order Code to provide for Loose or Straying Livestock. (End preamble)

However, this Resolution exempted roads that were posted, as well as those designated as "open range" by the Tribal Law and Order Commission. To this day, we can read the preamble of Resolution 91-38 and the words ring as true as the time it was originally passed. I believe it is time for the Tribal Council to act once again.

In the 2007 Montana Legislative Session, Representative Roger Koopman of Bozeman introduced H.B. 567, which would have established life-saving highway safety corridors along dangerous stretches of Montana roadways. After bi-partisan support and passage in the House, the bill stalled after being rereferred to the Appropriations Committee (despite the relative low-cost of implementation). Representative Koopman will reintroduce the bill in 2009 and I believe the Crow Tribe and the Governor of Montana must take affirmative steps in the interim to help establish safer roadways on the Crow Reservation.

Good resources to find out what Montana is doing (and whether it is doing enough) are the following links:

http://www.mdt.mt.gov/publications/docs/brochures/safety/safety_plan.pdf
http://www.mdt.mt.gov/publications/docs/brochures/safety/current_chsp.pdf

Drive safe this holiday season.

JH

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